[Title 28 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1997 Edition]
[From the U.S. Government Publishing Office]


[[Page i]]

          28



          Judicial Administration




          PARTS 0 TO 42

          Revised as of July 1, 1997
          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF JULY 1, 1997
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1997



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 28:
    Chapter I--Department of Justice..........................       3
  Finding Aids:
    Material Approved for Incorporation by Reference..........      67
    Table of CFR Titles and Chapters..........................      69
    Alphabetical List of Agencies Appearing in the CFR........      85
    List of CFR Sections Affected.............................      95

[[Page iv]]



      



                                                                                                                
                                  ----------------------------------------------------------                    

   Cite this Code:  CFR                                                         
                                                                                                                
   To cite the regulations in this volume use title, part                       
   and section number. Thus, 28 CFR 0.1 refers to title                        
   28, part 0, section 1.                                                      
                                  ----------------------------------------------------------                    
                                                                                                                


[[Page v]]

                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 1997), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I), and Acts Requiring Publication 
in the Federal Register (Table II). A list of CFR titles, chapters, and 
parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.

[[Page vii]]

    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.
SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
M-F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours 
a day. For payment by check, write to the Superintendent of Documents, 
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Customer Service call 202-512-1803.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 1997.



[[Page ix]]



                               THIS TITLE

    Title 28--Judicial Administration is composed of two volumes. The 
parts in these volumes are arranged in the following order: parts 0-42 
and part 43 to end. The contents of these volumes represent all current 
regulations codified by the Department of Justice, the Federal Prison 
Industries, Inc., the Bureau of Prisons, Department of Justice, the 
Offices of Independent Counsel, Department of Justice, and the Office of 
Independent Counsel under this title of the CFR as of July 1, 1997.

    For this volume, Scott D. Andreae was Chief Editor. The Code of 
Federal Regulations is published under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

[[Page x]]



 
[[Page 1]]



                    TITLE 28--JUDICIAL ADMINISTRATION




                             (Parts 0 to 42)

  --------------------------------------------------------------------
                                                                    Part
Chapter i--Department of Justice............................           0

[[Page 3]]



                    CHAPTER I--DEPARTMENT OF JUSTICE




  --------------------------------------------------------------------
Part                                                                Page
0               Organization of the Department of Justice...           7
1               Executive clemency..........................          95
2               Parole, release, supervision and 
                    recommitment of prisoners, youth 
                    offenders, and juvenile delinquents.....          96
3               Gambling devices............................         153
4               Procedure governing applications for 
                    certificates of exemption under the 
                    Labor-Management Reporting and 
                    Disclosure Act of 1959, and the Employee 
                    Retirement Income Security Act of 1974..         153
5               Administration and enforcement of Foreign 
                    Agents Registration Act of 1938, as 
                    amended.................................         158
6               Traffic in contraband articles in Federal 
                    penal and correctional institutions.....         168
7               Rewards for capture of escaped Federal 
                    prisoners...............................         169
8               FBI forfeiture authority for certain 
                    statutes................................         169
9               Regulations governing the remission or 
                    mitigation of civil and criminal 
                    forfeitures.............................         172
10              Registration of certain organizations 
                    carrying on activities within the United 
                    States..................................         185
11              Debt collection.............................         186
12              Registration of certain persons having 
                    knowledge of foreign espionage, 
                    counterespionage, or sabotage matters 
                    under the Act of August 1, 1956.........         198
13              Atomic weapons and special nuclear materials 
                    rewards regulations.....................         201
14              Administrative claims under Federal Tort 
                    Claims Act..............................         203
15              Defense of certain suits against Federal 
                    employees: certification and defense of 
                    certain suits against program 
                    participants under the National Swine 
                    Flu Immunization Program of 1976, and 
                    certification and decertification of 
                    certain suits based upon acts or 
                    omissions of contractors in carrying out 
                    an Atomic Weapons Testing Program under 
                    a contract with the United States.......         210
16              Production or disclosure of material or 
                    information.............................         212

[[Page 4]]

17              Regulations implementing Executive Order 
                    12356, ``National Security Information''         309
18              Office of Justice Programs hearing and 
                    appeal procedures.......................         355
19              Use of penalty mail in the location and 
                    recovery of missing children............         360
20              Criminal justice information systems........         363
21              Witness fees................................         376
22              Confidentiality of identifiable research and 
                    statistical information.................         380
23              Criminal intelligence systems operating 
                    policies................................         384
24              Implementation of the Equal Access to 
                    Justice Act in Department of Justice 
                    administrative proceedings..............         388
26              Implementation of death sentences in Federal 
                    cases...................................         393
29              Motor Vehicle Theft Prevention Act 
                    regulations.............................         395
30              Intergovernmental review of Department of 
                    Justice programs and activities.........         397
31              Formula grants..............................         401
32              Public safety officers' death and disability 
                    benefits................................         419
33              Criminal justice block grants...............         433
34              OJJDP competition and peer review procedures         448
35              Nondiscrimination on the basis of disability 
                    in state and local government services..         453
36              Nondiscrimination on the basis of disability 
                    by public accommodations and in 
                    commercial facilities...................         493
37              Procedures for coordinating the 
                    investigation of complaints or charges 
                    of employment discrimination based on 
                    disability subject to the Americans with 
                    Disabilities Act and section 504 of the 
                    Rehabilitation Act of 1973..............         669
39              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Justice..............................         676
40              Standards for inmate grievance procedures...         698
41              Implementation of Executive Order 12250, 
                    nondiscrimination on the basis of 
                    handicap in federally assisted programs.         703
42              Nondiscrimination; equal employment 
                    opportunity; policies and procedures....         710

Cross References: Customs Service, Department of the Treasury: See 
  Customs Duties, 19 CFR chapter I.
Internal Revenue Service, Department of the Treasury: See Internal 
  Revenue, 26 CFR chapter I.
Employees' Benefits: See title 20.
Federal Trade Commission: See Commercial Practices, 16 CFR chapter I.


[[Page 5]]


  Note: Other regulations issued by the Department of Justice appear in 
title 4; title 8; title 21; title 45; title 48.

Supplemental Publications: The official opinions of the Attorneys 
  General of the United States. (Op. A. G.) Irregular, 1789--; 
  Washington, v. 1--, 1852--.

[[Page 7]]



PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE--Table of Contents




Sec.

    Subpart A--Organizational Structure of the Department of Justice

0.1  Organizational units.

                Subpart B--Office of the Attorney General

0.5  Attorney General.
0.10  Attorney General's Advisory Committee of U.S. Attorneys.
0.11  Incentive Awards Board.
0.12  Young American Medals Committee.
0.13  Legal proceedings.
0.14  Special Independent Counsel for Members of Congress.

            Subpart C--Office of the Deputy Attorney General

0.15  Deputy Attorney General.
0.17  Office of Investigative Agency Policies.
0.18a  Office of Small and Disadvantaged Business Utilization.

          Subpart C-1--Office of the Associate Attorney General

0.19  Associate Attorney General.

               Subpart D--Office of the Solicitor General

0.20  General functions.
0.21  Authorizing intervention by the Government in certain cases.

            Subpart D-1--Executive Office for U.S. Attorneys

0.22  General functions.

                   Subpart D-2--Office of Legal Policy

0.23  General functions.
0.23a  Office of Information and Privacy.
0.23b  Office of Asylum Policy and Review.

                   Subpart E--Office of Legal Counsel

0.25  General functions.

              Subpart E-1--Office of International Programs

0.26  Organization.

    Subpart E-2--Office of Legislative and Intergovernmental Affairs

0.27  General functions.

                  Subpart E-3--Office of Public Affairs

0.28  General functions.

                 Subpart F--Community Relations Service

0.30  General functions.
0.31  Designating officials to perform the functions of the Director.
0.32  Applicability of existing departmental regulations.

          Subpart F-1--Office of Intelligence Policy and Review

0.33a  Organization.
0.33b  Functions.
0.33c  Relationship to other departmental units.

       Subpart F-2--INTERPOL-United States National Central Bureau

0.34  General functions.

                Subpart G--Office of the Pardon Attorney

0.35  General functions; delegation of authority.
0.36  Recommendations.

        Subpart G-1--Executive Office for United States Trustees

0.37  Organization.
0.38  Functions.

           Subpart G-2--Office of Professional Responsibility

0.39  Organization.
0.39a  Functions.
0.39b  Confidentiality of information.
0.39c  Stays of certain personnel actions in the Federal Bureau of 
          Investigation.
0.39d  Relationship to other departmental units.
0.39e  Committee on Professional Responsibility.

                      Subpart H--Antitrust Division

0.40  General functions.
0.41  Special functions.

Appendix to Subpart H--Delegation of Authority Respecting Denials of 
          Freedom of Information and Privacy Act Requests

                        Subpart I--Civil Division

0.45  General functions.
0.46  Certain civil litigation and foreign criminal proceedings.
0.47  Alien property matters.
0.48  International trade litigation.
0.49  International judicial assistance.

                    Subpart J--Civil Rights Division

0.50  General functions.

[[Page 8]]

0.51  Leadership and coordination of nondiscrimination laws.
0.52  Certifications under 18 U.S.C. 3503.
0.53  Office of Special Counsel for Immigration Related Unfair 
          Employment Practices.

Appendix to Subpart J

                      Subpart K--Criminal Division

0.55  General functions.
0.56  Exclusive or concurrent jurisdiction.
0.57  Criminal prosecutions against juveniles.
0.58  Delegation respecting payment of benefits for disability or death 
          of law enforcement officers not employed by the United States.
0.59  Certain certifications under 18 U.S.C. 3331 and 3503.
0.61  Functions relating to internal security.
0.62  Representative capacities.
0.63  Delegation respecting admission and naturalization of certain 
          aliens.
0.64  Certifications under 18 U.S.C. 3503.
0.64-1  Central or Competent Authority under treaties and executive 
          agreements on mutual assistance in criminal matters.
0.64-2  Delegation respecting transfer of offenders to or from foreign 
          countries.
0.64-3  Delegation respecting designation of certain Department of 
          Agriculture employees (Tick Inspectors) to carry and use 
          firearms.
0.64-4  Delegation respecting temporary transfers, in custody of certain 
          prisoner-witnesses from a foreign country to the United States 
          to testify in Federal or State criminal proceedings.

Appendix to Subpart K

                          Subpart L [Reserved]

             Subpart M--Land and Natural Resources Division

0.65  General functions.
0.65a  Litigation involving Environmental Protection Agency.
0.66  Delegation respecting title opinions.
0.67  Delegation respecting conveyances for public-airport purposes.
0.68  Delegation respecting mineral leasing.
0.69  Delegation of authority to make determinations and grants.
0.69a  Delegation respecting approval of conveyances.
0.69b  Delegation of authority respecting conveyances for public 
          airports.
0.69c  Litigation involving the Resource Conservation and Recovery Act.

                         Subpart N--Tax Division

0.70  General functions.
0.71  Delegation respecting immunity matters.

                 Subpart O--Justice Management Division

0.75  Policy functions.
0.76  Specific functions.
0.77  Operational functions.
0.78  Implementation of financial disclosure requirements.
0.79  Redelegation of authority.

               Subpart P--Federal Bureau of Investigation

0.85  General functions.
0.85a  Criminal justice policy coordination.
0.86  Seizure of gambling devices.
0.87  Representation on committee for visit-exchange.
0.88  Certificates for expenses of unforeseen emergencies.
0.89  Authority to seize arms and munitions of war.
0.89a  Delegations respecting claims against the FBI.

      Subpart P-1--Office of Justice Programs and Related Agencies

0.90  Office of Justice Programs.
0.91  Office for Victims of Crime.
0.92  National Institute of Justice.
0.93  Bureau of Justice Statistics.
0.94  Office of Juvenile Justice and Delinquency Prevention.
0.94-1  Bureau of Justice Assistance.

                      Subpart Q--Bureau of Prisons

0.95  General functions.
0.96  Delegations.
0.96a  Interstate Agreement on Detainers.
0.96b  Exchange of prisoners.
0.96c  Cost of incarceration.
0.97  Redelegation of authority.
0.98  Functions of Commissioner of Federal Prison Industries.
0.99  Compensation to Federal prisoners.

Appendix to Subpart Q--Confinement of Persons in District of Columbia 
          Correctional Institutions

               Subpart R--Drug Enforcement Administration

0.100  General functions.
0.101  Specific functions.
0.102  Drug enforcement policy coordination.
0.103  Release of information.
0.103a  Delegations respecting claims against the Drug Enforcement 
          Administration.
0.104  Redelegation of authority.

Appendix to Subpart R--Redelegation of Functions

[[Page 9]]

            Subpart S--Immigration and Naturalization Service

0.105  General functions.
0.106  Certificates for expenses of unforeseen emergencies.
0.107  Representation on committee for visit-exchange.
0.108  Redelegation of authority.
0.109  Implementation of the Treaty of Friendship and General Relations 
          Between the United States and Spain.
0.110  Implementation of the Convention Between the United States and 
          Greece.

                Subpart T--United States Marshals Service

0.111  General functions.
0.111a  Temporary prisoner-witness transfers.
0.112  Special deputation.
0.113  Redelegation of authority.

           Subpart U--Executive Office for Immigration Review

0.114  Fees for services.
0.115  General functions.
0.116  Board of Immigration Appeals.
0.117  Office of Chief Immigration Judge.
0.118  Office of Chief Administrative Hearing Officer.

       Subpart U-1--Office of Community Oriented Policing Services

0.119  Organization.
0.120  General functions.
0.121  Applicability of existing departmental regulations.

               Subpart V--United States Parole Commission

0.124  United States Parole Commission.
0.125  Chairman of U.S. Parole Commission.
0.126  Administrative support.
0.127  Indigent prisoners.

            Subpart V-1--Foreign Claims Settlement Commission

0.128  Organization.
0.128a  General functions.
0.128b  Regulations.

   Subpart W--Additional Assignments of Functions and Designation of 
 Officials to Perform the Duties of Certain Offices in Case of Vacancy, 
  or Absence Therein or in Case of Inability or Disqualification to Act

0.130  Functions common to heads of organizational units.
0.131  Designation of Acting United States Attorneys.
0.132  Designating officials to perform the functions and duties of 
          certain offices in case of absence, disability, or vacancy.

    Subpart X--Authorizations With Respect to Personnel and Certain 
                         Administrative Matters

0.137  Federal Bureau of Investigation and Drug Enforcement 
          Administration.
0.138  Bureau of Prisons, Federal Prison Industries, Immigration and 
          Naturalization Service, United States Marshals Service, 
          Executive Office for U.S. Attorneys.
0.139  [Reserved]
0.140  Authority relating to advertisements, and purchase of certain 
          supplies and services.
0.141  Audit and ledger accounts.
0.142  Per diem and travel allowances.
0.143  Incentive Awards Plan.
0.144  Determination of basic workweek.
0.145  Overtime pay.
0.146  Seals.
0.147  Certification of obligations.
0.148  Certifying officers.
0.149  Cash payments.
0.150  Collection of erroneous payments.
0.151  Administering oath of office.
0.152  Approval of funds for attendance at meetings.
0.153  Selection and assignment of employees for training.
0.154  Advance and evacuation payments and special allowances.
0.155  Waiver of claims for erroneous payments of pay and allowances.
0.156  Execution of U.S. Marshals' deeds or transfers of title.
0.157  Federal Bureau of Investigation--Drug Enforcement Administration 
          Senior Executive Service.
0.158  [Reserved]
0.159  Redelegation of authority.

     Subpart Y--Authority to Compromise and Close Civil Claims and 
     Responsibility for Judgments, Fines, Penalties, and Forfeitures

0.160  Offers that may be accepted by Assistant Attorneys General.
0.161  Acceptance of certain offers by the Deputy Attorney General or 
          Associate Attorney General, as appropriate.
0.162  Offers which may be rejected by Assistant Attorneys General.
0.163  Approval by Solicitor General of action on compromise offers in 
          certain cases.
0.164  Civil claims that may be closed by Assistant Attorneys General.
0.165  Recommendations to the Deputy Attorney General or Associate 
          Attorney General, as appropriate, that certain claims be 
          closed.

[[Page 10]]

0.166  Memorandum pertaining to closed claim.
0.167  Submission to Associate Attorney General by Director of Office of 
          Alien Property of certain proposed allowances and 
          disallowances.
0.168  Redelegation by Assistant Attorneys General.
0.169  Definition of ``gross amount of the original claim''.
0.170  Interest on monetary limits.
0.171  Judgments, fines, penalties, and forfeitures.
0.172  Authority: Federal tort claims.

Appendix to Subpart Y--Redelegations of Authority to Compromise and 
          Close Civil Claims

 Subpart Z--Assigning Responsibility Concerning Applications for Orders 
       Compelling Testimony or Production of Evidence by Witnesses

0.175  Judicial and administrative proceedings.
0.176  Congressional proceedings.
0.177  Applications for orders under the Comprehensive Drug Abuse 
          Prevention and Control Act.
0.177a  Antitrust civil investigative demands.
0.178  Redelegation of authority.

Subpart Z-1--Prosecutions for Obstruction of Justice and Related Charges

0.179  Scope.
0.179a  Enforcement responsibilities.

               Subpart AA--Orders of the Attorney General

0.180  Documents designated as orders.
0.181  Requirements for orders.
0.182  Submission of proposed orders to the Office of Legal Counsel.
0.183  Distribution of orders.

                    Subpart BB--Sections and Subunits

0.190  Changes within organizational units.
0.191  Changes which affect the overall structure of the Department.

                Subpart CC--Jurisdictional Disagreements

0.195  Procedure with respect to jurisdictional disagreements.
0.196  Procedure for resolving disagreements concerning mail or case 
          assignments.
0.197  Agreements, in connection with criminal proceedings or 
          investigations, promising non-deportation or other immigration 
          benefits.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

    Source: Order No. 423-69, 34 FR 20388, Dec. 31, 1969, unless 
otherwise noted.



    Subpart A--Organizational Structure of the Department of Justice



Sec. 0.1  Organizational units.

    The Department of Justice shall consist of the following principal 
organizational units:

                                 Offices

Office of the Attorney General.
Office of the Deputy Attorney General.
Office of the Associate Attorney General.
Office of the Solicitor General.
Office of Legal Counsel.
Office of Legislative Affairs.
Office of Professional Responsibility.
Office of Legal Policy.
Office of Public Affairs.
Office of the Pardon Attorney.
Office of Intelligence Policy and Review.
Office of Special Counsel for Immigration Related Unfair Employment 
Practices.
Community Relations Service.
Executive Office for United States Attorneys.
Executive Office for United States Trustees.
INTERPOL--United States National Central Bureau.
Office of International Programs.
Office of Community Oriented Policing Services.

                                Divisions

Antitrust Division.
Civil Division.
Civil Rights Division.
Criminal Division.
Land and Natural Resources Division.
Tax Division.
Justice Management Division.

                                 Bureaus

Federal Bureau of Investigation.
Bureau of Prisons.
Drug Enforcement Administration.
Immigration and Naturalization Service.
Office of Justice Assistance, Research and Statistics (and related 
agencies).
United States Marshals Service.

                                 Boards

Board of Immigration Appeals.
U.S. Parole Commission.

[[Page 11]]

Foreign Claims Settlement Commission.

[Order No. 900-80, 45 FR 43702, June 30, 1980, as amended by Order No. 
960-81, 46 FR 52340, Oct. 27, 1981; Order No. 1299-88, 53 FR 35811, 
Sept. 15, 1988; Order No. 1497-91, 56 FR 25629, June 5, 1991; Order No. 
1606-92, 57 FR 32438, July 22, 1992; Order No. 1948-95, 60 FR 8933, Feb. 
16, 1995]



                Subpart B--Office of the Attorney General



Sec. 0.5   Attorney General.

    The Attorney General shall:
    (a) Supervise and direct the administration and operation of the 
Department of Justice, including the offices of U.S. Attorneys and U.S. 
Marshals, which are within the Department of Justice.
    (b) Represent the United States in legal matters generally.
    (c) Furnish advice and opinions, formal and informal, on legal 
matters to the President and the Cabinet and to the heads of the 
executive departments and agencies of the Government, as provided by 
law.
    (d) Appear in person to represent the Government in the Supreme 
Court of the United States, or in any other court, in which he may deem 
it appropriate.
    (e) Designate, pursuant to Executive Orders 9788 of October 4, 1946, 
and 10254 of June 15, 1951, officers and agencies of the Department of 
Justice to act as disbursing officers for the Office of Alien Property.
    (f) Perform or supervise the performance of other duties required by 
statute or Executive order.



Sec. 0.10   Attorney General's Advisory Committee of U.S. Attorneys.

    (a) The Attorney General's Advisory Committee of U.S. Attorneys 
shall consist of fifteen U.S. Attorneys, designated by the Attorney 
General. The membership shall be selected to represent the various 
geographic areas of the Nation and both large and small offices. Members 
shall serve at the pleasure of the Attorney General, but such service 
normally shall not exceed three years and shall be subject to adjustment 
by the Attorney General so as to assure the annual rotation of 
approximately one-third of the Committee's membership.
    (b) The Committee shall make recommendations to the Attorney 
General, to the Deputy Attorney General and to the Associate Attorney 
General concerning any matters which the Committee believes to be in the 
best interests of justice, including, but not limited to, the following:
    (1) Establishing and modifying policies and procedures of the 
Department;
    (2) Improving management, particularly with respect to the 
relationships between the Department and the U.S. Attorneys;
    (3) Cooperating with State Attorneys General and other State and 
local officials for the purpose of improving the quality of justice in 
the United States;
    (4) Promoting greater consistency in the application of legal 
standards throughout the Nation and at the various levels of government; 
and
    (5) Aiding the Attorney General, the Deputy Attorney General and the 
Associate Attorney General in formulating new programs for improvement 
of the criminal justice system at all levels, including proposals 
relating to legislation and court rules.
    (c) The Committee shall select from its membership a chairman, a 
vice-chairman and a secretary, and shall establish such subcommittees as 
it deems necessary to carry out its objectives. United States Attorneys 
who are not members of the Committee may be included in the membership 
of subcommittees.
    (d) The Executive Office for U.S. Attorneys shall provide the 
Committee with such staff assistance and funds as are reasonably 
necessary to carry out the Committee's responsibilities.

[Order No. 640-76, 41 FR 7748, Feb. 20, 1976, as amended by Order No. 
960-81, 46 FR 52340, Oct. 27, 1981]



Sec. 0.11  Incentive Awards Board.

    The Incentive Awards Board shall consist of the Deputy Attorney 
General or a designee of the Deputy Attorney General, who shall be the 
chairperson, and four members designated by the Attorney General from 
among the Assistant Attorneys General, bureau heads or persons of 
equivalent rank in

[[Page 12]]

the Department. The duties of the Board shall be:
    (a) Consider and make recommendations to the Attorney General 
concerning honorary awards and cash awards in excess of $5,000 to be 
granted for suggestions, inventions, superior accomplishment, or other 
personal effort which contributes to the efficiency, economy, or other 
improvement of Government operations or achieves a significant reduction 
in paperwork.
    (b) Consider and make recommendations to the Attorney General for 
transmittal to the Office of Personnel Management and the President for 
Presidential awards under 5 U.S.C. 4504 and 5403.
    (c) Evaluate periodically the effectiveness of the employee 
recognition program and recommend needed improvements to the Attorney 
General.

[Order No. 960-81, 46 FR 52340, Oct. 27, 1981]



Sec. 0.12   Young American Medals Committee.

    There shall be in the Office of the Attorney General a Young 
American Medals Committee, which shall be composed of four members, one 
of whom shall be the Director of Public Affairs who shall be the 
Executive Secretary of the Committee. The Chairman of the Committee 
shall be designated by the Attorney General. The Committee shall issue 
regulations relating to the establishment of the Young American Medal 
for Bravery and Young American Medal for Service provided for by the act 
of August 3, 1950, 64 Stat. 397, and governing the requirements and 
procedures for the award of such medals. The regulations of the 
Committee in effect on the effective date of this part shall continue in 
effect until amended, modified, or revoked by the Committee.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970. Redesignated by Order No. 543-73, 38 
FR 29583, Oct. 26, 1973, as amended by Order No. 960-81, 46 FR 52340, 
Oct. 27, 1981]



Sec. 0.13  Legal proceedings.

    (a) Each Assistant Attorney General and Deputy Assistant Attorney 
General is authorized to exercise the authority of the Attorney General 
under 28 U.S.C. 515(a), in cases assigned to, conducted, handled, or 
supervised by such official, to designate Department attorneys to 
conduct any legal proceeding, civil or criminal, including grand jury 
proceedings and proceedings before committing magistrates, which United 
States attorneys are authorized by law to conduct, whether or not the 
designated attorney is a resident of the district in which the 
proceedings is brought.
    (b) Each Assistant Attorney General is authorized to redelegate to 
Section Chiefs the authority delegated by paragraph (a) of this section, 
except that such redelegation shall not apply to the designation of 
attorneys to conduct grand jury proceedings.

[Order No. 725-77, 42 FR 26205, May 23, 1977]



Sec. 0.14  Special independent counsel for Members of Congress.

    (a) Initial investigation. Whenever the Attorney General receives 
information from any source indicating that either a United States 
Senator or Member of the House of Representatives has violated any 
federal criminal law other than a violation classified as a Class B or C 
misdemeanor, he shall determine within 15 days whether there are 
sufficient grounds to initiate a preliminary investigation. If within 
that 15-day period the Attorney General determines that the information 
is not specific or is not from a credible source, then the Attorney 
General shall close the matter. If within that 15-day period the 
Attorney General determines that the information is specific and from a 
credible source, or is unable to so determine, the Attorney General 
shall, in either case, commence a preliminary investigation with respect 
to that information, except as provided in paragraph (j) of this 
section.
    (b) Preliminary investigation. If a preliminary investigation is 
undertaken as specified in paragraph (a) of this section, the Attorney 
General shall conduct such preliminary investigation within 90 days to 
determine whether there are reasonable grounds to believe that further 
investigation is warranted. In conducting this investigation, the 
Attorney General shall not convene grand juries, enter into plea 
bargains, grant immunity, or issue subpoenas. If it is determined that 
there is

[[Page 13]]

no reasonable grounds to believe that further investigation is 
warranted, the matter shall be closed and the Attorney General shall so 
notify the subject of the preliminary investigation. If it cannot be 
determined within 90 days whether a preliminary investigation should be 
undertaken or if it is determined that one should be undertaken, the 
matter shall be referred to a special independent counsel under 
paragraph (c) of this section.
    (c) Appointment of a special independent counsel. The Attorney 
General shall appoint a special independent counsel to investigate any 
Member of Congress where under paragraph (b) of this section that 
appointment is required. The Attorney General shall define the special 
independent counsel's jurisdiction and may expand it whenever he deems 
necessary. The initial grant of jurisdiction shall be deemed to include 
the authority to investigate and prosecute federal crimes, other than 
those classified as Class B or C misdemeanors, that may arise out of the 
matter initially referred to the special independent counsel by the 
Attorney General, including perjury, obstruction of justice, destruction 
of evidence, and intimidation of witnesses. The special independent 
counsel shall be an individual with appropriate experience to conduct a 
prompt, thorough, and efficient investigation. The Attorney General 
shall not appoint as a special independent counsel any person who holds 
any office or profit or trust in any branch of the government of the 
United States. The Attorney General may disclose the identity of the 
special independent counsel and the scope of his jurisdiction at any 
point after the appointment if it would be in the best interest of 
justice. If the special independent counsel resigns, dies, or is 
removed, the Attorney General may appoint a replacement to complete the 
investigation.
    (d) Authority of the special independent counsel. Any special 
independent counsel appointed under this section shall exercise, within 
the scope of his jurisdiction, the full power and independent authority 
to exercise all investigative and prosecutorial functions of the 
Attorney General, except for those matters that specifically require the 
Attorney General's personal action under 18 U.S.C. 2516. Neither the 
Attorney General nor any other officer or employee of the Department 
will countermand or interfere with any decision or action of the special 
independent counsel regarding the matter under investigation. Except as 
provided herein, the special independent counsel shall determine whether 
and to what extent he will inform or consult with the Attorney General 
or others within the Department about the conduct of his duties and 
responsibilities. The special independent counsel's authority includes:
    (1) Conducting proceedings before grand juries and other 
investigations;
    (2) Participating in court proceedings and engaging in any 
litigation, including civil and criminal matters, that the special 
independent counsel deems necessary;
    (3) Appealing any decision of a court in any proceeding in which the 
special independent counsel participates in an official capacity;
    (4) Reviewing all available documentary evidence;
    (5) Determining whether to contest the assertion of any testimonial 
privilege;
    (6) Receiving appropriate national security clearances;
    (7) Making an application to any federal court for a grant of 
immunity to any witness, or for warrants, subpoenas, or other court 
orders, and for purposes of sections 6003, 6004, and 6005 of title 18, 
exercising the authority vested in a United States Attorney or the 
Attorney General;
    (8) Inspecting, obtaining, or using the original or a copy of any 
tax return, in accordance with applicable statutes and regulations, and, 
for purposes of section 6103 of the Internal Revenue Code of 1986 and 
the regulations issued thereunder, exercising the powers vested in a 
United States Attorney or the Attorney General;
    (9) Initiating and conducting prosecutions in any court of competent 
jurisdiction, framing and signing indictments, filing informations, and 
handling all aspects of any case, in the name of the United States; and
    (10) Consulting with the United States Attorney for the district in 
which any violation of law with respect

[[Page 14]]

to which the special independent counsel is appointed was alleged to 
have occurred.
    (e) Personnel and budget. Any special independent counsel appointed 
under this section shall be authorized to request the assignment of any 
Department employee to assist the special independent counsel. The 
special independent counsel shall assign the duties of such employees 
while they are assigned to the special independent counsel. If 
necessary, the special independent counsel may request that the Attorney 
General hire additional personnel from outside the Department. All 
personnel in the Department, including United States Attorneys, shall 
cooperate to the fullest extent possible with the special independent 
counsel. The Attorney General shall determine the budget for the special 
independent counsel and may approve any increases that may be necessary.
    (f) Responsibilities of the special independent counsel. When the 
special independent counsel has completed the investigation the special 
independent counsel shall either:
    (1) Initiate and complete a criminal prosecution of the subject 
Member of Congress or
    (2) Issue a final statement to the Attorney General and the subject 
Member of Congress reporting solely that his investigation is complete 
and that no criminal charge will be brought.

In addition, a special independent counsel may advise the House of 
Representatives or the Senate, as the case may be, of any substantial 
and credible information permitted by law to be disclosed which such 
special independent counsel receives in carrying out the 
responsibilities under this section, that may constitute grounds for 
expulsion or other disciplinary action.
    (g) Removal. The special independent counsel will not be removed 
from office except for extraordinary improprieties.
    (h) Department regulations. The Department's regulations, including 
those governing recusal, disclosure of information, and policies, 
including those pertaining to the conduct of criminal investigations, 
shall apply to all matters arising under this section, and to the 
special independent counsel, all existing personnel assigned to him and 
all new personnel hired with the approval of the Attorney General at the 
special independent counsel's request.
    (i) Assistance of Assistant Attorney General for the Criminal 
Division. In all matters under this section either the Attorney General 
or the special independent counsel may request the assistance of the 
Assistant Attorney General for the Criminal Division; provided however, 
that notwithstanding any such assistance, the Attorney General must 
personnally determine whether a preliminary investigation is required 
under paragraphs (a) and (b) of this section; appoint and define the 
jurisdiction of the special independent counsel under paragraph (c) of 
this section; determine the special independent counsel's budget under 
paragraph (e) of this section; and when appropriate remove the special 
independent counsel under paragraph (g) of this section. The special 
independent counsel may not delegate his function under paragraph (f) of 
this section.
    (j) Exception for investigation not initially involving Member of 
Congress. When allegations involving criminality against a Member of 
Congress arise out of a criminal investigation being conducted by the 
Attorney General, the Attorney General may allow that ongoing 
investigation to continue and include said Member of Congress instead of 
invoking the procedures set forth in this section.
    (k) The Attorney General may, upon the recommendation of the 
Assistant Attorney General for the Criminal Division, grant a single 
extension, for a period of not more than 60 days, of the 90-day period 
referred to in paragraph (b) above.

[Order No. 1297-88, 53 FR 31323, Aug. 18, 1988, as amended by Order No. 
1331-89, 54 FR 11524, Mar. 21, 1989]

    Effective Date Note: At 54 FR 15752, Apr. 19, 1989, Sec. 0.14 was 
suspended.



            Subpart C--Office of the Deputy Attorney General



Sec. 0.15  Deputy Attorney General.

    (a) The Deputy Attorney General is authorized to exercise all the 
power and authority of the Attorney General, unless any such power or 
authority is

[[Page 15]]

required by law to be exercised by the Attorney General personally.
    (b) The Deputy Attorney General shall advise and assist the Attorney 
General in formulating and implementing Department policies and programs 
and in providing overall supervision and direction to all organizational 
units of the Department. Subject to the general supervision of the 
Attorney General, the Deputy Attorney General shall direct the 
activities of organizational units as assigned. In addition, the Deputy 
Attorney General shall:
    (1) Except as assigned to the Associate Attorney General by 
Sec. 0.19(a)(1), exercise the power and authority vested in the Attorney 
General to take final action in matters pertaining to:
    (i) The employment, separation, and general administration of 
personnel in the Senior Executive Service and in General Schedule grades 
GS-16 through GS-18, or the equivalent, and of attorneys and law 
students regardless of grade or pay in the Department;
    (ii) The appointment of special attorneys and special assistants to 
the Attorney General (28 U.S.C. 515(b));
    (iii) The appointment of Assistant U.S. Trustees and fixing of their 
compensation; and
    (iv) The approval of the appointment by U.S. Trustees of standing 
trustees and the fixing of their maximum annual compensation and 
percentage fees as provided in 28 U.S.C. 587(e).
    (v) The appointment, employment, separation, and general 
administration of Assistant United States Attorneys and other attorneys 
to assist United States Attorneys when the public interest so requires 
and fixing their salaries.
    (2) Administer the Attorney General's recruitment program for honor 
law graduates and judicial law clerks.
    (3) Coordinate Departmental liaison with White House Staff and the 
Executive Office of the President.
    (4) Coordinate and control the Department's reaction to civil 
disturbances and terrorism.
    (5) Perform such other duties and functions as may be assigned from 
time to time by the Attorney General.
    (c) The Deputy Attorney General may redelegate the authority 
provided in paragraphs (b)(1) (i), (ii), (iii), and (v) of this section 
to take final action in matters pertaining to the employment, 
separation, and general administration of attorneys and law students in 
grades GS-15 and below, to appoint special attorneys and special 
assistants to the Attorney General pursuant to 28 U.S.C. 515(b), to 
appoint Assistant United States Trustees and fix their compensation, and 
to take final action in matters pertaining to the appointment, 
employment, separation, and general administration of Assistant United 
States Attorneys and other attorneys to assist United States Attorneys 
when the public interest so requires and to fix their salaries.
    (d) The Deputy Attorney General may redelegate the authority 
provided in paragraph (b)(1)(iv) of this section to take final action in 
matters pertaining to the approval of the appointment by U.S. Trustees 
of standing trustees and the fixing of their maximum annual compensation 
and percentage fees as provided in 28 U.S.C. 587(e) to the Director of 
the Executive Office for U.S. Trustees.
    (e) The officials to whom the Deputy Attorney General delegates 
authority under paragraph (c) of this section and any of the officials 
who may be otherwise authorized by the Deputy Attorney General to 
perform any other attorney personnel duties may redelegate those 
authorities and duties.
    (f) The Deputy Attorney General is authorized, and may delegate 
authority to the Director of the Asylum Policy and Review Unit within 
the Office of Legal Policy, to:
    (1) Compile and disseminate to Immigration and Naturalization 
Service (INS) officers information concerning the persecution of persons 
in countries on account of race, religion, nationality, membership in a 
particular social group, or political opinion.
    (2) Review cases decided by the Board of Immigration Appeals 
pursuant to 8 CFR 3.1(h)(1)(i);
    (3) Review INS asylum decisions in cases which the Deputy Attorney 
General directs INS to refer to him.
    (4) Assist INS in conducting training concerning asylum and assist 
in resolving questions of policy that may arise.
    (g) The Deputy Attorney General is authorized to exercise the 
authority

[[Page 16]]

vested in the Attorney General under section 528(a), Public Law 101-509, 
to accept from federal departments and agencies the services of 
attorneys and non-law enforcement personnel to assist the Department of 
Justice in the investigation and prosecution of fraud or other criminal 
or unlawful activity in or against any federally insured financial 
institution or the Resolution Trust Corporation, and to supervise such 
personnel in the conduct of such investigations and prosecutions.

[Order No. 960-81, 46 FR 52340, Oct. 27, 1981, as amended by Order No. 
1063-84, 49 FR 32065, Aug. 10, 1984; Order No. 1097-85, 50 FR 25708, 
June 21, 1985; Order No. 1176-87, 52 FR 11044, Apr. 7, 1987; Order No. 
1251-88, 53 FR 5370, Feb. 24, 1988; Order No. 1479-91, 56 FR 10510, Mar. 
13, 1991; Order No. 1949-95, 60 FR 9777, Feb. 22, 1995]



Sec. 0.17  Office of Investigative Agency Policies.

    (a) Organization. The Office of Investigative Agency Policies is 
headed by a Director appointed by the Attorney General. The Director 
shall be responsible to, and report directly to, the Deputy Attorney 
General, and shall serve at the pleasure of the Attorney General. The 
Director shall be chosen from among the heads of the criminal 
investigative agencies of the Department, i.e., the Federal Bureau of 
Investigation, Drug Enforcement Administration, United States Marshals 
Service and Immigration and Naturalization Service. The Director shall 
serve concurrently as the Director of Investigative Agency Policies and 
as head of the agency for which he or she was nominated and confirmed. 
The Director shall be supported by a staff consisting of personnel 
detailed from the criminal investigative agencies of the Department, and 
from the Criminal Division. The staff shall be nominated by these 
various agencies, subject to the approval of the Director.
    (b) Functions. Subject to the general supervision and direction of 
the Attorney General and Deputy Attorney General, the Director shall in 
the areas of overlapping jurisdiction of the criminal investigative 
agencies:
    (1) Take all steps necessary to improve coordination among the 
criminal investigative agencies of the Department, both within the 
United States and abroad;
    (2) Assure, to the extent appropriate, consistent operational 
guidelines for the criminal investigative agencies of the Department;
    (3) Establish procedures, structures and mechanisms for coordinating 
the collection and dissemination of intelligence relating to the 
Department's law enforcement responsibilities;
    (4) Establish procedures and policies relating to procurement for 
the criminal investigative agencies of the Department, including but not 
limited to procurement of communications and computer systems;
    (5) Determine and establish procedures for the coordination of all 
automation systems;
    (6) Determine and establish plans to ensure the effective deployment 
of criminal investigative agency task forces;
    (7) Establish procedures for coordinating the apprehension of 
fugitives;
    (8) Establish programs to coordinate training among the criminal 
investigative agencies of the Department;
    (9) Provide advice to the Attorney General and the Deputy Attorney 
General on all investigative policies, procedures and activities that 
warrant uniform treatment or coordination among the criminal 
investigative agencies of the Department;
    (10) Provide advice to the Attorney General and the Deputy Attorney 
General on the budgetary and resource requests of the criminal 
investigative agencies of the Department;
    (11) Perform such other functions as may be necessary for the 
effective policy-level coordination of criminal investigations by the 
criminal investigative agencies of the Department, particularly with 
respect to drug trafficking, fugitive apprehension, violence, and 
related areas, and for the elimination of waste and duplication in these 
functions.
    (12) Perform such special duties as may be assigned by the Attorney 
General or the Deputy Attorney General from time to time.
    (c) Cooperation. Officials of the Federal Bureau of Investigation, 
the Drug

[[Page 17]]

Enforcement Administration, the United States Marshals Service, the 
Immigration and Naturalization Service and all other components of the 
Department that may be requested by the Director of Investigative Agency 
Policies shall provide such information as the Director may request.
    (d) Review. Prior to making any decision having a significant impact 
on any criminal investigative agency of the Department, the Director 
shall consult with the head of such agency, or the designee of the head 
of such agency. Any head of a criminal investigative agency shall have 
an opportunity to seek review of any decision of the Director by the 
Deputy Attorney General or the Attorney General.
    (e) Scope. Nothing in this section shall be interpreted to alter or 
diminish the responsibilities of the Department's criminal investigative 
agencies, or of other components of the Department, including the 
Criminal Division and the United States Attorneys, in the investigation 
and prosecution of violations of federal criminal law.
    (f) Reservation. This policy is set forth solely for the purpose of 
internal Department of Justice guidance. It is not intended to, does 
not, and may not be relied upon to create any rights, substantive or 
procedural, that are enforceable at law by any party in any matter, 
civil or criminal, nor does it place any limitations on otherwise lawful 
investigative or litigative prerogatives of the Department of Justice.


[Order No. 1814-93, 58 FR 62260, Nov. 26, 1993]



Sec. 0.18a  Office of Small and Disadvantaged Business Utilization.

    The Office of Small and Disadvantaged Business Utilization is headed 
by a Director appointed by the Attorney General, who shall be 
responsible to, and report directly to, the Deputy Attorney General. 
Subject to the general supervision and direction of the Deputy Attorney 
General, the Director shall:
    (a) Be responsible for the implementation and execution of the 
functions and duties required by sections 637 and 644 of title 15 U.S. 
Code;
    (b) Establish Department goals for the participation by small 
businesses, including small businesses owned and controlled by socially 
and economically disadvantaged individuals, in Department procurement 
contracts;
    (c) Have supervisory authority over Department personnel to the 
extent that the functions and duties of such personnel relate to the 
functions and duties described in paragraph (a) of this section;
    (d) Provide resource information and technical training and 
assistance regarding utilization of small businesses, including small 
businesses owned and controlled by socially and economically 
disadvantaged individuals, to Department personnel who perform 
procurement functions;
    (e) Assign a small business technical adviser to any Department 
offices to which the Small Business Administration assigns a procurement 
center representative, in accordance with section 644(k)(6) of title 15 
U.S. Code;
    (f) Develop and implement appropriate outreach programs to include 
small minority businesses in procurement contracts;
    (g) Cooperate and consult regularly with the Small Business 
Administration with respect to the functions and duties described in 
paragraph (a) of this section;
    (h) Review, evaluate and report to the Deputy Attorney General on 
the performance of organizational units of the Department in 
accomplishing the goals for utilization of small and disadvantaged 
businesses; and
    (i) Prepare the Department's annual report to the Small Business 
Administration on the extent of participation by small and disadvantaged 
businesses in Department procurement contracts.

[Order No. 906-80, 45 FR 52145, Aug. 6, 1980]



          Subpart C-1--Office of the Associate Attorney General



Sec. 0.19  Associate Attorney General.

    (a) The Associate Attorney General shall advise and assist the 
Attorney General and the Deputy Attorney General in formulating and 
implementing Departmental policies and programs. The Associate Attorney 
General shall

[[Page 18]]

also provide overall supervision and direction to organizational units 
as assigned. In addition the Associate Attorney General shall:
    (1) Exercise the power and the authority vested in the Attorney 
General to take final action in matters pertaining to the employment, 
separation, and general administration of attorneys and law students in 
pay grades GS-15 and below in organizational units subject to his 
direction.
    (2) Perform such other duties as may be especially assigned from 
time to time by the Attorney General.
    (3) Exercise the power and authority vested in the Attorney General 
to authorize the Director of the U.S. Marshals Service to deputize 
persons to perform the functions of a Deputy U.S. Marshal.
    (b) The Associate Attorney General may redelegate the authority 
provided in paragraph (a)(1) of this section to the official in the 
Office of the Deputy Attorney General responsible for attorney personnel 
management.
    (c) The Associate Attorney General is the Attorney General's 
designee for purposes of determining whether, under part 39 of this 
title, a handicapped person can achieve the purpose of a program without 
fundamental changes in its nature, and whether an action would result in 
a fundamental alteration in the nature of a program or activity or in 
undue financial and administrative burdens. The Associate Attorney 
General may not redelegate this authority.

[Order No. 960-81, 46 FR 52341, Oct. 27, 1981, as amended by Order No. 
1047-84, 49 FR 6485, Feb. 22, 1984; Order No. 1106-85, 50 FR 36055, 
Sept. 5, 1985; Order No. 1251-88, 53 FR 5370, Feb. 24, 1988]



               Subpart D--Office of the Solicitor General



Sec. 0.20   General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Solicitor General, in 
consultation with each agency or official concerned:
    (a) Conducting, or assigning and supervising, all Supreme Court 
cases, including appeals, petitions for and in opposition to certiorari, 
briefs and arguments, and, in accordance with Sec. 0.163, settlement 
thereof.
    (b) Determining whether, and to what extent, appeals will be taken 
by the Government to all appellate courts (including petitions for 
rehearing en banc and petitions to such courts for the issuance of 
extraordinary writs) and, in accordance with Sec. 0.163, advising on the 
approval of settlements of cases in which he had determined that an 
appeal would be taken.
    (c) Determining whether a brief amicus curiae will be filed by the 
Government, or whether the Government will intervene, in any appellate 
court.
    (d) Assisting the Attorney General, the Deputy Attorney General and 
the Associate Attorney General in the development of broad Department 
program policy.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 960-81, 46 FR 52341, Oct. 
27, 1981]



Sec. 0.21   Authorizing intervention by the Government in certain cases.

    The Solicitor General may in consultation with each agency or 
official concerned, authorize intervention by the Government in cases 
involving the constitutionality of acts of Congress.



            Subpart D-1--Executive Office for U.S. Attorneys



Sec. 0.22  General functions.

    The Executive Office for United States Attorneys shall be under the 
direction of a Director who shall:
    (a) Provide general executive assistance and supervision to the 
offices of the U.S. Attorneys, including:
    (1) Evaluating the performance of the offices of the U.S. Attorneys, 
making appropriate reports and inspections and taking corrective action 
were indicated.
    (2) Coordinating and directing the relationship of the offices of 
the U.S. Attorneys with other organizational units of the Department of 
Justice.
    (b) Publish and maintain a U.S. Attorneys' Manual and a United 
States Attorneys' Bulletin for the internal guidance of the U.S. 
Attorneys' offices and those other organizational units of

[[Page 19]]

the Department concerned with litigation.
    (c) Supervise the operation of the Office of Legal Education, the 
Attorney General's Advocacy Institute and the Legal Education Institute, 
which shall develop, conduct and authorize the training of all Federal 
legal personnel.
    (d) Provide the Attorney General's Advisory Committee of United 
States Attorneys with such staff assistance and funds as are reasonably 
necessary to carry out the Committee's responsibilities (28 CFR 
0.10(d)).
    (e) Establish policy and procedures for the satisfaction, 
collection, or recovery of criminal fines, special assessments, 
penalties, interest, bail bond forfeitures, restitution, and court costs 
in criminal cases consistent with Sec. 0.171 of this chapter.

[Order No. 960-81, 46 FR 52341, Oct. 27, 1981, as amended by Order No. 
1413-90, 55 FR 19064, May 8, 1990]



                   Subpart D-2--Office of Legal Policy



Sec. 0.23  General functions.

    The Office of Legal Policy shall be headed by an Assistant Attorney 
General. The principal responsibilities of the Office shall be to plan, 
develop, and coordinate the implementation of major policy initiatives 
of high priority to the Department and to the Administration. In 
addition, the Assistant Attorney General, Office of Legal Policy, shall:
    (a) Examine and study legislation and other policy proposals and 
coordinate Departmental efforts to secure enactment of those of special 
interest to the Department and the Administration.
    (b) Assist the Attorney General and the Deputy Attorney General in 
fulfilling responsibilities of the Federal Legal Council to promote 
coordination and communication among Federal legal offices with the goal 
of achieving effective, consistent, and efficient management of legal 
resources throughout the Federal Government.
    (c) Manage and coordinate the discharge of Departmental 
responsibilities related to the Freedom of Information Act (5 U.S.C. 
552) and the Privacy Act (5 U.S.C. 552a), including coordination and 
implementation of policy development and compliance within executive 
agencies and Departmental units relative to the Freedom on Information 
Act and within Departmental units relative to the Privacy Act; and 
supervise the Office of Information and Privacy which will, except as 
otherwise directed by the Attorney General, act on appeals taken from 
Departmental denials of access to records under the Privacy Act and the 
Freedom of Information Act.
    (d) Advise and assist the Attorney General and the Deputy Attorney 
General regarding the selection and appointment of Federal judges.
    (e) Administer the Federal Justice Research Program.
    (f) Represent the Department on the Administrative Conference of the 
United States and, as appropriate, on regulatory reform matters.
    (g) Participate, as appropriate, in internal budget hearings of the 
Department with regard to policy implications of resource allocations 
and resource implications of major policy initiatives; and advise the 
Assistant Attorney General for Administration with regard to information 
requirements for Departmental policy formulation.
    (h) Advise appropriate Departmental officials, from time to time, on 
investigation, litigation, negotiation, penal, or correctional policies 
to insure the compatibility of those policies with overall Departmental 
goals.
    (i) Perform such other duties and functions as may be specially 
assigned by the Attorney General and the Deputy Attorney General.

In carrying out his responsibilities under this section, the Assistant 
Attorney General, Office of Legal Policy, shall have the right to call 
upon the relevent Departmental units for personnel and other assistance.

[Order No. 960-81, 46 FR 52341, Oct. 27, 1981, as amended by Order No. 
1054-84, 49 FR 10118, Mar. 19, 1984; Order No. 1055-84, 49 FR 12253, 
Mar. 29, 1984]

[[Page 20]]



Sec. 0.23a  Office of Information and Privacy.

    (a) There is established, in the Office of Legal Policy, the Office 
of Information and Privacy, which, under the general supervision and 
direction of the Assistant Attorney General, Office of Legal Policy, 
shall:
    (1) Act on behalf of the Attorney General on Freedom of Information 
Act and Privacy Act appeals under Secs. 16.8, 16.48, 16.50(d) and 16.52, 
respectively, under the supervision of the Assistant Attorney General, 
Office of Legal Policy, except that:
    (i) In the case of a denial of a request by the Assistant Attorney 
General, Office of Legal Policy, the Attorney General or his designee 
shall act on the appeal, and
    (ii) A denial of a request by the Attorney General shall constitute 
the final action of the Department on that request.
    (2) Provide staff support to the Department Review Committee, 
established by Sec. 17.148 of this chapter.
    (3) Advise executive agencies and organizational units of the 
Department on questions relating to interpretation and application of 
the Freedom of Information Act and advise the Department on questions 
relating to interpretation and application of the Privacy Act.
    (4) Coordinate the development and implementation of and compliance 
with Freedom of Information Act policy within the executive agencies and 
all organizational units of the Department.
    (5) Undertake, arrange, or support training and informational 
programs concerning both acts for the executive agencies and the 
Department.
    (6) Undertake such other responsibilities as may be assigned by the 
Assistant Attorney General, Office of Legal Policy.
    (b) All federal agencies which intend to deny Freedom of Information 
Act requests raising novel issues should consult with the Office of 
Information and Privacy to the extent practicable.

[Order No. 973-82, 47 FR 10809, Mar. 12, 1982, as amended by Order No. 
1055-84, 49 FR 12253, Mar. 29, 1984]



Sec. 0.23b  Office of Asylum Policy and Review.

    There is established, in the Office of Legal Policy, the Asylum 
Policy and Review Unit, headed by a Director, under the general 
supervision and direction of the Assistant Attorney General, Office of 
Legal Policy, and exercising such duties as the Deputy Attorney General 
delegates pursuant to 28 CFR 0.15(f) or otherwise assigns to it.

[Order No. 1176-87, 52 FR 11044, Apr. 7, 1987]



                   Subpart E--Office of Legal Counsel



Sec. 0.25   General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Assistant Attorney General, 
Office of Legal Counsel:
    (a) Preparing the formal opinions of the Attorney General; rendering 
informal opinions and legal advice to the various agencies of the 
Government; and assisting the Attorney General in the performance of his 
functions as legal adviser to the President and as a member of, and 
legal adviser to, the Cabinet.
    (b) Preparing and making necessary revisions of proposed Executive 
orders and proclamations, and advising as to their form and legality 
prior to their transmission to the President; and performing like 
functions with respect to regulations and other similar matters which 
require the approval of the President or the Attorney General.
    (c) Rendering opinions to the Attorney General and to the heads of 
the various organizational units of the Department on questions of law 
arising in the administration of the Department.
    (d) Approving proposed orders of the Attorney General, and orders 
which require the approval of the Attorney General, as to form and 
legality and as to consistency and conformity with existing orders and 
memoranda.
    (e) Coordinating the work of the Department of Justice with respect 
to the participation of the United States in the United Nations and 
related international organizations and advising with respect to the 
legal aspects of

[[Page 21]]

treaties and other international agreements.
    (f) When requested, advising the Attorney General in connection with 
his review of decisions of the Board of Immigration Appeals and other 
organizational units of the Department.
    (g) Designating within the Office of Legal Counsel:
    (1) A liaison officer, and an alternate, as a representative of the 
Department in all matters concerning the filing of departmental 
documents with the Office of the Federal Register, and
    (2) A certifying officer, and an alternate, to certify copies of 
documents required to be filed with the Office of the Federal Register 
(1 CFR 16.1).
    (h) Approving certain blind trusts, as required by section 
202(f)(4)(B) of the Ethics in Government Act of 1978, 92 Stat. 1843.
    (i) Consulting with the Director of the Office of Government Ethics 
regarding the development of policies, rules, regulations, procedures 
and forms relating to ethics and conflicts of interest, as required by 
section 402 of the Ethics in Government Act of 1978, 92 Stat. 1862.
    (j) Taking actions to ensure implementation of Executive Order 12612 
(entitled ``Federalism''), including determining which Department 
policies have sufficient federalism implications to warrant preparation 
of a Federalism Assessment, reviewing Assessments for adequacy, and 
executing certifications for the Assessments.
    (k) Performing such special duties as may be assigned by the 
Attorney General, the Deputy Attorney General, or the Associate Attorney 
General from time to time.

[Order 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order 445-70, 
35 FR 19397, Dec. 23, 1970; Order 623-75, 40 FR 42746, Sept. 16, 1975; 
Order 960-81, 46 FR 52342, Oct. 27, 1981; Order 1054-84, 49 FR 10118, 
Mar. 19, 1984; Order 1260-88, 53 FR 9435, Mar. 23, 1988]



              Subpart E-1--Office of International Programs



Sec. 0.26  Organization.

    There shall be within the Office of the Deputy Attorney General an 
Office of International Programs.
    (a) Director. The Office of International Programs shall be headed 
by a Director appointed by the Attorney General.
    (b) Functions. The Director of the Office of International Programs 
shall discharge the following duties:
    (1) Coordinate all proposals for the Department of Justice, or 
Department of Justice personnel, to provide foreign countries with 
training or technical assistance in the fields of law enforcement, 
administration of justice, legislation, and economic reform and 
democratic institution-building initiatives.
    (2) Assist the Deputy Attorney General in coordinating the 
activities of the International Criminal Investigative Training 
Assistance Program and in coordinating responses to requests for 
international training and technical assistance submitted to the 
INTERPOL-U.S. National Central Bureau and other Department of Justice 
units.
    (3) Serve as the focal point, on behalf of the Deputy Attorney 
General, for administrative matters involving international activities, 
including overseas staffing, of all Department of Justice units.
    (4) Coordinate arrangements and preparations for contacts by the 
Attorney General and Deputy Attorney General with officials of foreign 
governments, foreign non-governmental organizations, and international 
organizations.
    (5) As required, advise the Deputy Attorney General on matters 
relating to non-operational foreign travel by Department of Justice 
personnel.
    (6) Serve as a primary liaison with the Department of State, with 
other appropriate federal, state and local agencies, and with 
appropriate non-governmental institutions, regarding training and 
technical assistance to foreign countries in the fields of law 
enforcement, administration of justice, legislation, and economic reform 
and democratic institution-building initiatives.
    (7) Review and coordinate all planned and ongoing training and 
technical assistance activities in the fields of law enforcement, 
administration of justice, legislation, and economic reform and

[[Page 22]]

democratic institution-building initiatives by Department of Justice 
personnel in foreign countries.
    (8) As needed, facilitate logistical arrangements for Department of 
Justice personnel to engage in approved training and technical 
assistance activities in the fields of law enforcement, administration 
of justice, legislation, and economic reform and democratic institution-
building initiatives in foreign countries.
    (9) Coordinate Department of Justice views on proposals for entities 
outside the Department, including international organizations, to 
conduct training and technical assistance activities in the fields of 
law enforcement, administration of justice, legislation, and economic 
reform and democratic institution-building initiatives in or for foreign 
countries.
    (10) Serve as a focal point, on behalf of the Deputy Attorney 
General, for resolution, within the Department of Justice, of issues 
regarding international policy.
    (11) Coordinate, on behalf of the Deputy Attorney General, 
legislation relevant to Department of Justice training and technical 
assistance activities in or for foreign countries.
    (12) Perform such other duties and functions as may be specially 
assigned by the Deputy Attorney General.
    (c) Relationship with other Departmental units. The Office of 
International Programs shall:
    (1) Maintain continual liaison with interested components of the 
Department on international matters.
    (2) Develop and administer effective mechanisms to ensure thorough 
consideration, by interested components of the Department, of all 
proposals for international training and technical assistance by 
Department personnel.
    (d) Redelegation of authority. The Director is authorized to 
redelegate to any subordinate member of the Office of International 
Programs any of the authority, functions or duties vested in the 
Director by this subpart.

[Order No. 1606-92, 57 FR 32438, July 22, 1992]



    Subpart E-2--Office of Legislative and Intergovernmental Affairs



Sec. 0.27   General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Assistant Attorney General, 
Office of Legislative and Intergovernmental Affairs:
    (a) Maintaining liaison between the Department and the Congress.
    (b) Reviewing, coordinating and submitting departmental legislative 
reports.
    (c) Coordinating the preparation and submission of proposed 
departmental legislation.
    (d) Maintaining liaison between the Department and State and local 
governments and their representative organizations.
    (e) Consulting with State and local officials and their 
representative organizations to inform them of Department policy and law 
enforcement initiatives that may affect State and local governments.
    (f) Performing such other duties respecting legislative matters as 
may be assigned by the Attorney General, the Deputy Attorney General, or 
the Associate Attorney General.

[Order No. 504-73, 38 FR 6893, Mar. 14, 1973, as amended by Order No. 
623-75, 40 FR 42746, Sept. 16, 1975; Order No. 960-81, 46 FR 52343, Oct. 
27, 1981; Order No. 1054-84, 49 FR 10118, Mar. 19, 1984. Redesignated by 
Order No. 1497-91, 56 FR 25629, June 5, 1991]



                  Subpart E-3--Office of Public Affairs



Sec. 0.28  General functions.

    The Office of Public Affairs is headed by a Director of Public 
Affairs who shall:
    (a) Handle matters pertaining to relations with the public 
generally.
    (b) Disseminate information to the press, the radio and television 
services, the public, members of Congress, officials of Government, 
schools, colleges, and civic organizations.
    (c) Coordinate the relations of the Department of Justice with the 
news media.

[[Page 23]]

    (d) Serve as a central agency for information relating to the work 
and activities of all agencies of the Department.
    (e) Prepare public statements and news releases.
    (f) Coordinate Department publications.
    (g) Assist the Attorney General and other officials of the 
Department in preparing for news conferences, interviews and other 
contacts with the news media.

[Order No. 960-81, 46 FR 52343, Oct. 27, 1981. Redesignated by Order No. 
1497-91, 56 FR 25629, June 5, 1991]



                 Subpart F--Community Relations Service



Sec. 0.30   General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Director of the Community 
Relations Service:
    (a) Exercise of the powers and performance of the functions vested 
in the Attorney General by sections 204(d), 205, 1002, and 1003(a) of 
the Civil Rights Act of 1964 (78 Stat. 267) and section 2 of 
Reorganization Plan No. 1 of 1966.
    (b) Preparation and submission of the annual report to the Congress 
required by section 1004 of that Act.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 699-77, 42 FR 15315, Mar. 
21, 1977; Order No. 960-81, 46 FR 52343, Oct. 27, 1981]



Sec. 0.31   Designating officials to perform the functions of the Director.

    (a) In case of a vacancy in the Office of the Director of the 
Community Relations Service, the Deputy Director of the Service shall 
perform the functions and duties of the Director.
    (b) The Director is authorized, in case of absence from his office 
or in case of his inability or disqualification to act, to designate the 
Deputy Director to act in his stead. In unusual circumstances, or in the 
absence of the Deputy Director, a person other than the Deputy Director 
may be so designated by the Director.



Sec. 0.32   Applicability of existing departmental regulations.

    Departmental regulations which are generally applicable to units or 
personnel of the Department of Justice shall be applicable with respect 
to the Community Relations Service and to the Director and personnel 
thereof, except to the extent, if any, that such regulations may be 
inconsistent with the intent and purposes of section 1003(b) of the 
Civil Rights Act of 1964.



          Subpart F-1--Office of Intelligence Policy and Review



Sec. 0.33a  Organization.

    The Office of Intelligence Policy and Review shall be headed by a 
Counsel for Intelligence Policy, appointed by the Attorney General.

[Order No. 960-81, 46 FR 52343, Oct. 27, 1981]



Sec. 0.33b  Functions.

    The Counsel for Intelligence Policy shall:
    (a) Advise and assist the Attorney General in carrying out his 
responsibilities under Executive Order 12036, ``United States 
Intelligence Activities;''
    (b) Serve as the Department representative on interdepartmental 
boards, committees and other groups dealing with intelligence and 
counterintelligence matters;
    (c) Oversee the development, coordination and implementation of 
Department policy with regard to intelligence, counterintelligence and 
national security matters;
    (d) Participate in the development, implementation and review of 
United States intelligence policies, including procedures for the 
conduct of intelligence and counterintelligence activities;
    (e) Evaluate Departmental activities and existing and proposed 
domestic and foreign intelligence and counterintelligence activities to 
determine their consistency with United States intelligence policies and 
law;
    (f) Formulate policy alternatives and recommend action by the 
Department and other executive agencies in achieving lawful United 
States intelligence and counterintelligence objectives;

[[Page 24]]

    (g) Analyze and interpret current statutes, Executive orders, 
guidelines, and other directives pertaining to domestic security, 
foreign intelligence and counterintelligence activities; and
    (h) Review and comment upon proposed statutes, guidelines, and other 
directives with regard to intelligence activities; and, in conjunction 
with the Office of Legal Counsel, review and comment upon the form and 
legality of proposed Executive Orders that touch upon matters related to 
the function of this Office;
    (i) Supervise the preparation of certifications and applications for 
orders under the Foreign Intelligence Surveillance Act and the 
representation of the United States before the United States Foreign 
Intelligence Surveillance Court;
    (j) Recommend action by the Department of Justice with regard to 
applications for foreign intelligence and counterintelligence electronic 
surveillances, as well as for other investigative activities by 
executive branch agencies;
    (k) Monitor intelligence and counterintelligence activities by 
executive branch agencies to insure conformity with Department 
objectives;
    (l) Prepare periodic and special intelligence reports describing and 
evaluating domestic and foreign intelligence and counterintelligence 
activities and assessing trends or changes in these activities;
    (m) Provide a quality control review for all outgoing intelligence 
and counterintelligence reports;
    (n) Supervise the preparation of the Office's submission for the 
annual budget; and
    (o) Perform other duties pertaining to intelligence activities as 
may be assigned by the Attorney General.

[Order No. 875-80, 45 FR 13729, Mar. 3, 1980, as amended by Order No. 
960-81, 46 FR 52343, Oct. 27, 1981]



Sec. 0.33c  Relationship to other departmental units.

    (a) Internal security functions at Sec. 0.61 shall continue to be 
the responsibility of the Assistant Attorney General in charge of the 
Criminal Division.
    (b) The Assistant Attorney General for Administration shall be 
responsible for providing advice relating to basic Department policy for 
security and shall direct all Department security programs assigned at 
Sec. 0.75(p).
    (c) Responsibility for conducting criminal investigations shall 
continue to rest with the head of the Departmental investigative or 
prosecutive unit having jurisdiction over the subject matter.
    (d) Responsibility for conducting intelligence activities shall 
continue to rest with the head of the Departmental unit having 
jurisdiction over the subject matter.
    (e) In rendering legal opinions, the Counsel for Intelligence Policy 
shall consult with the Office of Legal Counsel whenever the Counsel 
determines:
    (1) That a question raises significant implications for activities 
of the government other than intelligence activities, or
    (2) That other facts or circumstances make such consultation 
appropriate.

[Order No. 875-80, 45 FR 13729, Mar. 3, 1980]



       Subpart F-2--INTERPOL-United States National Central Bureau



Sec. 0.34  General functions.

    The following functions are assigned to, and shall be conducted, 
handled, or supervised by, the Chief of the United States National 
Central Bureau, International Criminal Police Organization (INTERPOL--
U.S. National Central Bureau), as authorized by statute and within 
guidelines prescribed by the Department of Justice, in conjunction with 
the Department of Treasury:
    (a) Facilitate international law enforcement cooperation as the 
United States representative with the International Criminal Police 
Organization (INTERPOL), on behalf of the Attorney General, pursuant to 
22 U.S.C. 263a.
    (b) Represent the U.S. National Central Bureau at criminal law 
enforcement and international law enforcement conferences and symposia.
    (c) Serve as a member of the Executive Committee of INTERPOL-United 
States National Central Bureau (INTERPOL-USNCB).
    (d) Transmit information of a criminal justice, humanitarian, or 
other law enforcement related nature between

[[Page 25]]

National Central Bureaus of INTERPOL member countries, and law 
enforcement agencies within the United States and abroad; and respond to 
requests by law enforcement agencies, and other legitimate requests by 
appropriate organizations, institutions and individuals, when in 
agreement with the INTERPOL constitution.
    (e) Coordinate and integrate information for investigations of an 
international nature and identify those involving patterns and trends of 
criminal activities.
    (f) Conduct analyses of patterns of international criminal 
activities, when specific patterns are observed.
    (g) Establish and collect user fees to process name checks and 
background records for licensing, humanitarian and other non-law 
enforcement purposes.

[Order No. 960-81, 46 FR 52343, Oct. 27, 1981, as amended by Order No. 
1295-88, 53 FR 30990, Aug. 17, 1988; Order No. 1441-90, 55 FR 32403, 
Aug. 9, 1990; Order No. 1491-91, 56 FR 21600, May 10, 1991]



                Subpart G--Office of the Pardon Attorney

    Cross Reference: For regulations pertaining to the Office of Pardon 
Attorney, see part 1 of this chapter.



Sec. 0.35  General functions; delegation of authority.

    Under the general supervision of the Attorney General and the 
direction of the Associate Attorney General, the following-described 
matters are assigned to, and shall be conducted, handled or supervised 
by, the Pardon Attorney but subject to the limitation contained in 
Sec. 0.36 of this chapter.
    (a) Exercise of the powers and performance of the functions vested 
in the Attorney General by Secs. 1.1 through 1.8 inclusive of this 
chapter.
    (b) Performance of such other duties as may be assigned by the 
Attorney General or the Associate Attorney General.

[Order No. 1012-83, 48 FR 22290, May 18, 1983]



Sec. 0.36  Recommendations.

    The Pardon Attorney shall submit all recommendations in clemency 
cases through the Associate Attorney General and the Associate Attorney 
General shall exercise such discretion and authority as is appropriate 
and necessary for the handling and transmittal of such recommendations 
to the President.

[Order No. 1012-83, 48 FR 22290, May 18, 1983]



        Subpart G-1--Executive Office for United States Trustees



Sec. 0.37  Organization.

    The Executive Office for United States Trustees shall be headed by a 
Director appointed by the Attorney General.

[Order No. 960-81, 46 FR 52344, Oct. 27, 1981]



Sec. 0.38  Functions.

    The Director shall have responsibility for assisting the Attorney 
General and the Deputy Attorney General in supervising and providing 
general coordination and assistance to United States Trustees. The 
Director shall perform such duties relating to such functions and others 
under the Bankruptcy Reform Act of 1978 as may be assigned by the 
Attorney General or the Deputy Attorney General.

[Order No. 960-81, 46 FR 52344, Oct. 27, 1981]



           Subpart G-2--Office of Professional Responsibility

    Source: Order No. 833-79, 45 FR 27754, Apr. 24, 1980.



Sec. 0.39  Organization.

    The Office of Professional Responsibility shall be headed by a 
Counsel, appointed by the Attorney General. The Counsel shall be subject 
to the general supervision and direction of the Attorney General or, 
whenever appropriate, of the Deputy Attorney General or the Associate 
Attorney General or the Solicitor General.



Sec. 0.39a  Functions.

    The Counsel on Professional Responsibility shall:
    (a) Receive and review any information or allegation concerning 
conduct by a Department employee that may be

[[Page 26]]

in violation of law, regulations or orders, or of applicable standards 
of conduct or may constitute mismanagement, gross waste of funds, abuse 
of authority, or a substantial and specific danger to public health or 
safety. However, this provision does not preempt the primary 
responsibility of internal inspection units of the Department to receive 
such information or allegations and to conduct investigations.
    (b) Receive and review any allegation of reprisal against an 
employee or applicant who discloses information pursuant to paragraph 
(a) of this section. Any disclosure by an employee or applicant to the 
appropriate internal inspection unit of the Department under this 
subsection shall constitute disclosure to the Attorney General or the 
Counsel.
    (c) Make such preliminary inquiry as may be necessary to determine 
whether the matter should be referred to another official within the 
Department.
    (d) Refer any matter that appears to warrant examination in the 
following manner:
    (1) If the matter appears to involve a violation of law, to the head 
of the investigative agency having jurisdiction to investigate such 
violations;
    (2) If the matter appears not to involve a violation of law, to the 
head of the office, division, bureau or board to which the employee is 
assigned, or to the head of its internal inspection unit;
    (3) If referral to the official indicated in paragraph (d)(1) or (2) 
of this section would be inappropriate, to the Attorney General and the 
Deputy Attorney General or, if referral to both the Attorney General and 
the Deputy Attorney General would also be inappropriate, to whichever of 
them would be proper or to the Associate Attorney General or the 
Solicitor General.
    (e) Receive. (1) Reports containing the findings of any 
investigation undertaken upon matters referred under paragraph (d)(2) of 
this section and the administrative sanction to be imposed, if any 
sanction is warranted; and
    (2) Monthly reports from the internal inspection units setting forth 
any information or allegations received pursuant to paragraph (a) or (b) 
of this section and the status of any pending investigations.
    (f) Notify within a reasonable period of time any person who has 
submitted information or made allegations pursuant to paragraph (a) or 
(b) of this section of the final result of any investigation undertaken: 
Provided, That such notification is permitted by and accords with 
applicable statutes and regulations.
    (g) Recommend to the Attorney General, the Deputy Attorney General, 
the Associate Attorney General, or the Solicitor General what further 
action should be undertaken with regard to any matter referred to such 
official under paragraph (d)(3) of this section, including the 
assignment of any task force or individual to undertake the action 
recommended and any special arrangements that appear warranted.
    (h) Undertake any investigation of a matter referred under paragraph 
(d)(3) of this section that may be assigned by the Attorney General, the 
Deputy Attorney General, the Associate Attorney General, or the 
Solicitor General, or cooperate with any other organization, task force, 
or individual that may be assigned by such official to undertake the 
investigation.
    (i) Submit to the Attorney General and the Deputy Attorney General 
or, if submission to both would be inappropriate, to whichever of them 
would be proper or to the Associate Attorney General or the Solicitor 
General:
    (1) An immediate report concerning any matter referred under 
paragraph (d)(1) or (d)(2) of this section that should be brought to the 
attention of a higher official;
    (2) An immediate report concerning the adequacy of any investigation 
of a matter referred under paragraph (d) of this section, if the Counsel 
believes that a significant question exists as to the adequacy of such 
investigation; and
    (3) An annual report, or a semi-annual report if the Counsel 
determines this to be necessary, reviewing and evaluating the activities 
of internal inspection units, or where there are no such units, the 
discharge of comparable duties within the Department.
    (j) Submit recommendations to the Attorney General and the Deputy 
Attoney General on the need for changes in policies or procedures that

[[Page 27]]

become evident during the course of the Counsel's inquiries.
    (k) Undertake any other responsibilities assigned by the Attorney 
General including duties relating to the improvement of the performance 
of the Department.



Sec. 0.39b  Confidentiality of information.

    Whenever any employee of or applicant to the Department provides 
information pursuant to Sec. 0.39a(a) or (b), the Counsel and the 
internal inspection unit shall maintain the confidentiality of the 
employee or applicant unless the employee or applicant consents to the 
release of his or her identity or the Counsel determines that the 
disclosure of the identity is necessary to resolve the allegation.



Sec. 0.39c  Stays of certain personnel actions in the Federal Bureau of Investigation.

    (a) The Counsel may, with respect to employees of the Federal Bureau 
of Investigation, request the Attorney General to stay any personnel 
action for any period which the Attorney General considers appropriate 
if the Counsel determines that there are reasonable grounds to believe 
that the personnel action was taken, or is to be taken, as a reprisal 
for a disclosure of information by the employee to the Attorney General 
(or the Department official designated by the Attorney General for such 
purpose) which the employee reasonably believes evidences:
    (1) A violation of any law, rule or regulation; or
    (2) Mismanagement, a gross waste of funds, abuse of authority or a 
substantial and specific danger to public health or safety.
    (b) The Attorney General, when requested to stay a personnel action 
under paragraph (a) of this section, may stay such action when the 
Attorney General determines that under the facts and circumstances 
involved such stay would be appropriate.



Sec. 0.39d  Relationship to other departmental units.

    (a) Primary responsibility for assuring the maintenance of the 
highest standards of professional responsibility by Department employees 
shall continue to rest with the heads of the offices, divisions, bureaus 
and boards of the Department.
    (b) Primary responsibility for investigating an allegation of 
unprofessional conduct that is lodged against an employee of the 
Department normally shall continue to rest with the head of the office, 
division, bureau, or board to which the employee is assigned, or with 
the head of its internal inspection unit, or, if the conduct appears to 
constitute a violation of law, with the head of the agency having 
jurisdiction over the subject matter involved.
    (c) The heads of the offices, divisions, bureaus, and boards shall 
provide information and assistance requested by the Counsel in 
connection with reviews or investigations conducted by the Counsel or by 
any other person assigned to conduct reviews or investigations and shall 
keep the Counsel informed of major investigations that they are 
conducting.
    (d) Employees of the Department may be assigned to the Office of 
Professional Responsibility on a case-by-case basis to conduct such 
inquiries as may be warranted. However, no investigative personnel shall 
be assigned except under the specific direction of the Attorney General 
or the Deputy Attorney General and, in normal course, with the agreement 
of the head of the unit to which the investigative personnel are 
regularly assigned. Personnel assigned to the Office shall work under 
the direction of the Counsel.



Sec. 0.39e  Committee on Professional Responsibility.

    The Committee on Professional Responsibility shall consist of 
Department officials designated by the Attorney General and shall serve 
as an advisory body to the counsel.



                      Subpart H--Antitrust Division



Sec. 0.40   General functions.

    The following functions are assigned to and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Antitrust 
Division:
    (a) General enforcement, by criminal and civil proceedings, of the 
Federal antitrust laws and other laws relating to the protection of 
competition and

[[Page 28]]

the prohibition of restraints of trade and monopolization, including 
conduct of surveys of possible violations of antitrust laws, conduct of 
grand jury proceedings, issuance and enforcement of civil investigative 
demands, civil actions to obtain orders and injunctions, civil actions 
to recover forfeitures or damages for injuries sustained by the United 
States as a result of antitrust law violations, proceedings to enforce 
compliance with final judgments in antitrust suits and negotiation of 
consent judgments in civil actions, civil actions to recover penalties, 
criminal actions to impose penalties including actions for the 
imposition of penalties for conspiring to defraud the Federal Government 
by violation of the antitrust laws, participation as amicus curiae in 
private antitrust litigation; and prosecution or defense of appeals in 
antitrust proceedings.
    (b) Intervention or participation before administrative agencies 
functioning wholly or partly under regulatory statutes in administrative 
proceedings which require consideration of the antitrust laws or 
competitive policies, including such agencies as the Civil Aeronautics 
Board, Interstate Commerce Commission, Federal Communications 
Commission, Federal Maritime Commission, Federal Energy Regulatory 
Commission, Federal Reserve Board, Federal Trade Commission, Nuclear 
Regulatory Commission, and Securities and Exchange Commission, except 
proceedings referred to any agency by a federal court as an incident to 
litigation being conducted under the supervision of another Division in 
this Department.
    (c) Developing procedures to implement, receiving information, 
maintaining records, and preparing reports by the Attorney General to 
the President as required by Executive Order 10936 of April 25, 1961 
relating to identical bids submitted to Federal and State departments 
and agencies.
    (d) As the delegate of the Attorney General furnishing reports and 
summaries thereof respecting the competitive factors involved in 
proposed mergers or consolidations of insured banks required by the 
Federal Deposit Insurance Act, as amended (12 U.S.C. 1828(c)), 
furnishing reports respecting the competitive factors involved in 
proposed acquisitions under the Savings and Loan Holding Company 
Amendments of 1967 (12 U.S.C. 1730a(e)), furnishing advice regarding the 
proposed disposition of surplus Government property required by the 
Federal Property and Administrative Services Act of 1949, as amended (40 
U.S.C. 488), furnishing reports regarding deepwater port licenses under 
the Deepwater Port Act of 1974 (33 U.S.C. 1506), furnishing advice and 
reports regarding federal coal leases under the Federal Coal Leasing 
Amendments Act of 1976 (30 U.S.C. 184(1)), furnishing advice on oil and 
gas leasing under the Outer Continental Shelf Lands Act Amendments of 
1978 (43 U.S.C. 1334(a) 1334(f)(3). 1337), furnishing reports and 
recommendations regarding the issuance of licenses for exploration or 
permits for commercial recovery of deep seabed hard minerals pursuant to 
the Deep Seabed Hard Minerals Resources Act (30 U.S.C. 1413(d)), 
furnishing advice or reports regarding contracts or operating agreements 
concerning exploration, development or production of petroleum reserves 
under the Naval Petroleum Reserves Production Act of 1976 (10 U.S.C. 
7430(g)(1)), and furnishing advice regarding nuclear licenses under the 
Atomic Energy Act of 1954 (42 U.S.C. 2135).
    (e) Preparing the approval or disapproval of the Attorney General 
whenever such action is required by statute from the standpoint of the 
antitrust laws as a prerequisite to the development of Defense 
Production Act voluntary programs or agreements and small business 
production or raw material pools, the national defense program and 
atomic energy matters.
    (f) Assembling information and preparing reports required or 
requested by the Congress or the Attorney General as to the effect upon 
the maintenance and preservation of competition under the free 
enterprise system of various Federal laws or programs, including the 
Defense Production Act of 1950, the Small Business Act, the Federal Coal 
Leasing Amendments Act of 1976 (30 U.S.C. 208-2), the Naval Petroleum 
Reserves Production Act of 1976 (10 U.S.C. 7431(b)(2)), and the joint 
resolution of July 28, 1955, giving consent to the

[[Page 29]]

Interstate Compact to Conserve Oil and Gas.
    (g) Preparing for transmittal to the President, Congress, or other 
departments or agencies views or advice as to the propriety or effect of 
any action, program or practice upon the maintenance and preservation or 
competition under the free enterprise system.
    (h) Representing the Attorney General on interdepartmental or 
interagency committees concerned with the maintenance and preservation 
of competition generally and in various sections of the economy and the 
operation of the free enterprise system and when authorized 
participating in conferences and committees with foreign governments and 
treaty organizations concerned with competition and restrictive business 
practices in international trade.
    (i) Collecting fines, penalties, judgments, and forfeitures arising 
in antitrust cases.
    (j) [Reserved]
    (k) As the delegate of the Attorney General, performance of all 
functions which the Attorney General is required or authorized to 
perform by title III of Public Law 97-290 (15 U.S.C. 4011-4021) with 
respect to export trade certificates of review.

[Order No. 617-75, 40 FR 36118, Aug. 19, 1975, as amended by Order No. 
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52344, Oct. 
27, 1981; Order Nos. 1002-83, 1003-83, 48 FR 9522, 9523, Mar. 7, 1983]



Sec. 0.41   Special functions.

    The following functions are assigned to, and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Antitrust 
Division:
    (a) Institution of proceedings to impose penalties for violations of 
section 202(a) of the Communications Act of 1934 (48 Stat. 1070), as 
amended (47 U.S.C. 202(a)), which prohibits common carriers by wire or 
radio from unjustly or unreasonably discriminating among persons, 
classes of persons, or localities.
    (b) Representing the United States in suits pending as of February 
28, 1975, before three-judge district courts under sections 2321-2325 of 
title 28 of the U.S. Code, to enforce, suspend, enjoin, annul, or set 
aside, in whole or in part, any order of the Interstate Commerce 
Commission. (Pub. L. 93-584, Sec. 10, 88 Stat. 1917)
    (c) Representing the United States in proceedings before courts of 
appeals to review orders of the Interstate Commerce Commission, the 
Federal Communications Commission, the Federal Maritime Commission and 
the Nuclear Regulatory Commission (28 U.S.C. 2341-2350).
    (d) Representing the Civil Aeronautics Board, and the Secretary of 
the Treasury or his delegates under the Federal Alcohol Administration 
Act, in courts of appeals reviewing their respective administrative 
orders.
    (e) Defending the Secretary of the Treasury or his delegates under 
the Federal Alcohol Administration Act, and the agencies named in 
paragraphs (c), (d) and (e) of this section or their officers against 
the injunctive actions brought in Federal courts when the matter which 
is the subject of the actions will ultimately be the subject of review 
under paragraph (c), (d), (e) or (g) of this section, or of an 
enforcement action under paragraph (b) of this section.
    (f) Seeking review of or defending judgments rendered in proceedings 
under paragraphs (a) through (e) of this section.
    (g) Acting on behalf of the Attorney General with respect to 
sections 252 and 254 of the Energy Policy and Conservation Act, 42 
U.S.C. 6272, 6274, including acting on behalf of the Attorney General 
with respect to voluntary agreements or plans of action established 
pursuant to section 252 of that Act.
    (h) [Reserved]
    (i) Acting on behalf of the Attorney General with respect to 
sections 4(b), 4(c) and 4(d) of the National Cooperative Production 
Amendments of 1993, Pub. L. No. 103-42, 107 Stat. 117 (15 U.S.C. 4305 
note).
    (j) Defending the Secretary of Commerce and the Attorney General, or 
their delegates, in actions to set aside a determination with respect to 
export trade certificates of review under section 305(a) of Public Law 
97-290 (15 U.S.C. 4015(a)).
    (k) Acting on behalf of the Attorney General with respect to section 
6 of the

[[Page 30]]

National Cooperative Research and Production Act of 1984, Pub. L. 98-
462, 98 Stat. 1815, as amended by the National Cooperative Production 
Amendments of 1993, Pub. L. No. 103-42, 107 Stat. 117 (15 U.S.C. 4305).

[Order No. 615-75, 40 FR 36118, Aug. 19, 1975, as amended by Order No. 
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 769-78, 43 FR 8256, Mar. 
1, 1978; Order No. 960-81, 46 FR 52344, Oct. 27, 1981; Order Nos. 1002-
83, 1003-83, 48 FR 9522, 9523, Mar. 7, 1983; Order No. 1077-85, 49 FR 
46372, Nov. 26, 1984; Order No. 1857-94, 59 FR 14101, Mar. 25, 1994]

  Appendix to Subpart H--Delegation of Authority Respecting Denials of 
             Freedom of Information and Privacy Act Requests

                             [Memo No. 79-1]

    1. The Deputy Assistant Attorney General for Litigation, Antitrust 
Division, will assume the duties and responsibilities previously 
assigned to the Assistant Attorney General by 28 CFR 16.5 (b) and (c) 
and 16.45(a), as amended July 1, 1977, and defined in those sections, 
for denying requests and obtaining statutory extensions of time under 
the Freedom of Information Act, 5 U.S.C. 552, et seq., and the Privacy 
Act, 5 U.S.C. 552a, et seq.
    2. The Deputy Assistant Attorney General for Litigation, Antitrust 
Division, who signs a denial or partial denial of a request for records 
made under the Freedom of Information Act or the Privacy Act shall be 
the ``person responsible for the denial'' within the meaning of 5 U.S.C. 
552(a) and 5 U.S.C. 552a (j) and (k).

[44 FR 54045, Sept. 18, 1979]



                        Subpart I--Civil Division

    Cross Reference: For regulations pertaining to the Civil Division, 
see part 15 of this chapter.



Sec. 0.45  General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Assistant Attorney General, 
Civil Division:
    (a) Admiralty and shipping cases--civil and admiralty litigation in 
any court by or against the United States, its officers and agents, 
which involves ships or shipping (except suits to enjoin final orders of 
the Federal Maritime Commission under the Shipping Act of 1916 and under 
the Intercoastal Shipping Act assigned to the Antitrust Division by 
subpart H of this part), defense of regulatory orders of the Maritime 
Administration affecting navigable waters or shipping thereon (except as 
assigned to the Land and Natural Resources Division by Sec. 0.65(a)), 
workmen's compensation, and litigation and waiver of claims under 
reciprocal-aid maritime agreements with foreign governments.
    (b) Court of claims cases--litigation by and against the United 
States in the Court of Claims, except cases assigned to the Land and 
Natural Resources Division and the Tax Division by subparts M and N of 
this part, respectively.
    (c) International trade--all litigation before the Court of 
International Trade, including suits instituted pursuant to 28 U.S.C. 
1581(i) and suits by the United States to recover customs duties, to 
recover upon a bond relating to the importation of merchandise required 
by the laws of the United States or by the Secretary of the Treasury and 
to recover a civil penalty under sections 592, 704(i)(2), or 734(i)(2) 
of the Tariff Act of 1930, and the presentation of appeals in the Court 
of International Trade.
    (d) Fraud cases--civil claims arising from fraud on the Government 
(other than antitrust, land and tax frauds), including alleged claims 
under the False Claims Act, the Program Fraud Civil Remedies Act of 
1986, the Surplus Property Act of 1944, the Anti-Kickback Act, the 
Contract Settlement Act of 1944, the Contract Disputes Act of 1978, 19 
U.S.C. 1592 and common law fraud.
    (e) Gifts and bequests--handling matters arising out of devises and 
bequests and inter vivos gifts to the United States, except 
determinations as to the validity of title to any lands involved and 
litigation pertaining to such determinations.
    (f) Patent and allied cases and other patent matters--patent, 
copyright, and trademark litigation before the U.S. courts and the 
Patent Office, including patent and copyright infringement suits in the 
Court of Claims (28 U.S.C. 1498), suits for compensation under the 
Patent Secrecy Act where the invention was ordered to be kept secret in 
the interest of national defense (35 U.S.C. 183), suits for compensation 
for

[[Page 31]]

unauthorized practice of a patented invention in the furnishing of 
assistance under the Foreign Assistance Act (22 U.S.C. 2356), suits for 
compensation for the unauthorized communication of restricted data by 
the Atomic Energy Commission to other nations (42 U.S.C. 2223), 
interference proceedings (35 U.S.C. 135, 141, 142, 146), defense of the 
Register of Copyrights in his administrative acts, suits for specific 
performance to acquire title to patents, and civil patent-fraud cases.
    (g) Tort cases--defense of tort suits against the United States 
arising under the Federal Tort Claims Act and special acts of Congress; 
similar litigation against cost-plus Government contractors and Federal 
employees whose official conduct is involved (except actions against 
Government contractors and Federal employees which are assigned to the 
Land and Natural Resources Division by Sec. 0.65(a); prosecution of tort 
claims for damage to Government property, and actions for the recovery 
of medical expenses under Public Law 87-693 and part 43 of this title.
    (h) General civil matters--litigation by and against the United 
States, its agencies, and officers in all courts and administrative 
tribunals to enforce Government rights, functions, and monetary claims 
(except defense of injunctive proceedings assigned to the Antitrust 
Division by subpart H of this part, civil proceedings seeking 
exclusively equitable relief assigned to the Criminal Division by 
Secs. 0.55(i) and 0.61(d), and proceedings involving judgments, fines, 
penalties, and forfeitures assigned to other divisions by Sec. 0.171), 
and to defend challenged actions of Government agencies and officers, 
not otherwise assigned, including, but not limited to, civil penalties 
and forfeitures, actions in the Court of Claims under the Renegotiation 
Act, claims against private persons or organizations for which the 
Government is, or may ultimately be, liable, except as provided in 
Sec. 0.70(c)(2), defense of actions arising under section 2410 of title 
28 of the U.S. Code whenever the United States is named as a party as 
the result of the existence of a Federal lien against property, defense 
of actions for the recovery of U.S. Government Life Insurance and 
National Service Life Insurance (38 U.S.C. 784), enforcement of 
reemployment rights in private industry pursuant to the Military 
Selective Service Act of 1967 (50 U.S.C., App. 459); reparations suits 
brought by the United States as a shipper under the Interstate Commerce 
Act; civil actions by the United States for penalties for violations of 
car service orders (49 U.S.C. 1(17a)); actions restraining violations of 
part II of the Interstate Commerce Act (49 U.S.C. 322(b) and 322(h); 
civil actions under part I of the Interstate Commerce Act (49 U.S.C. 
6(10) and 16(9)); injunctions against violations of Interstate Commerce 
Commission orders (49 U.S.C. 16(12)); mandamus to compel the furnishing 
of information to the Interstate Commerce Commission (49 U.S.C. 19a(1) 
and 20(9)); recovery of rebates under the Elkins Act (49 U.S.C. 41(3)); 
compelling the appearance of witnesses before the Interstate Commerce 
Commission and enforcement of subpenas and punishment for contempt (49 
U.S.C. 12(3)); suits to enforce final orders of the Secretary of 
Agriculture under the Perishable Agricultural Commodities Act (7 U.S.C. 
499g), and the Packers and Stockyards Act (7 U.S.C. 216); suits to set 
aside orders of State regulatory agencies (49 U.S.C. 13(4)); and civil 
matters, except those required to be handled by the Board of Parole, 
under section 504(a) of the Labor-Management Reporting and Disclosure 
Act of 1959 (29 U.S.C. 504(a)).
    (i) Appeals under section 8(b)(1)(B) of the Contract Disputes Act of 
1978--the grant and/or legal denial of prior approval of the Attorney 
General as described in section 8(g)(1)(B) of the Contract Disputes Act 
of 1978. The Assistant Attorney General is authorized to redelegate, to 
the extent and subject to such limitations as may be deemed advisable, 
to subordinate division officials the responsibilities covered by this 
subsection and delineated in section 8(g)(1)(B) of the Contract Disputes 
Act of 1978.
    (j) Consumer litigation--All civil and criminal litigation and grand 
jury proceedings arising under the Federal Food, Drug and Cosmetic Act 
(21 U.S.C. 301 et seq.), the Federal Hazardous Substances Act (15 U.S.C. 
1261 et seq.), the Fair Packaging and Labeling Act (15

[[Page 32]]

U.S.C. 1451 et seq.), the Automobile Information Disclosure Act (15 
U.S.C. 1231 et seq.), the odometer requirements section and the fuel 
economy labeling section of the Motor Vehicle Information and Cost 
Savings Act (15 U.S.C. 1981 et seq.), the Federal Cigarette Labeling and 
Advertising Act (15 U.S.C. 1331 et seq.), the Poison Prevention 
Packaging Act of 1970 (15 U.S.C. 1471 et seq.), the Federal Caustic 
Poison Act (15 U.S.C. 401 note), the Consumer Credit Protection Act (15 
U.S.C. 1611, 1681q and 1681r), the Wool Products Labeling Act of 1939 
(15 U.S.C. 68), the Fur Products Labeling Act (15 U.S.C. 69), the 
Textile Fiber Products Identification Act (15 U.S.C. 70 et seq.), the 
Consumer Product Safety Act (15 U.S.C. 2051 et seq.), the Flammable 
Fabrics Act (15 U.S.C. 1191 et seq.), the Refrigerator Safety Device Act 
(15 U.S.C. 1211 et seq.), title I of the Magnuson-Moss Warranty--Federal 
Trade Commission Improvement Act (15 U.S.C. 2301 et seq.), the Federal 
Trade Commission Act (15 U.S.C. 41 et seq.), and section 11(1) of the 
Clayton Act (15 U.S.C. 21(1)) relating to violations of orders issued by 
the Federal Trade Commission. Upon appropriate certification by the 
Federal Trade Commission, the institution of criminal proceedings, under 
the Federal Trade Commission Act (15 U.S.C. 56(b)), the determination 
whether the Attorney General will commence, defend or intervene in civil 
proceedings under the Federal Trade Commission Act (15 U.S.C. 56(a)), 
and the determination under the Consumer Product Safety Act (15 U.S.C. 
2076(b)(7)), whether the Attorney General will initiate, prosecute, 
defend or appeal an action relating to the Consumer Product Safety 
Commission.
    (k) All civil litigation arising under the passport, visa and 
immigration and nationality laws and related investigations and other 
appropriate inquiries pursuant to all the power and authority of the 
Attorney General to enforce the Immigration and Nationality Act and all 
other laws relating to the immigration and naturalization of aliens 
except all civil litigation, investigations, and advice with respect to 
forfeitures, return of property actions, Nazi war criminals identified 
in 8 U.S.C. 1182(a)(33), 1251(a)(19) and civil actions seeking 
exclusively equitable relief which relate to national security within 
the jurisdiction of the Criminal Division under Sec. 0.55 (d), (f), (i) 
and Sec. 0.61(d).
    (l) Civil penalties for drug possession--the authority and 
responsibilities of the Attorney General under section 6486 of the Anti-
Drug Abuse Act of 1988 (21 U.S.C. 844a) and the regulations implementing 
that Act (28 CFR part 76). Such authority and responsibilities may be 
redelegated by the Assistant Attorney General to subordinate division 
officials to the extent and subject to limitations deemed advisable.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order 445-
70, 35 FR 19397, Dec. 23, 1970; Order 673-76, 41 FR 54176, Dec. 13, 
1976; Order 699-77, 42 FR 15315, Mar. 21, 1977; Order 838-79, 44 FR 
40498, July 11, 1979; Order 960-81, 46 FR 52345, Oct. 27, 1981; Order 
1002-83, 1003-83, 48 FR 9522, 9523, Mar. 7, 1983; Order 1268-88, 53 FR 
11646, Apr. 8, 1988; Order No. 1544-91, 56 FR 56578, Nov. 6, 1991]



Sec. 0.46   Certain civil litigation and foreign criminal proceedings.

    The Assistant Attorney General in charge of the Civil Division 
shall, in addition to litigation coming within the scope of Sec. 0.45, 
direct all other civil litigation including claims by or against the 
United States, its agencies or officers, in domestic or foreign courts, 
special proceedings, and similar civil matters not otherwise assigned, 
and shall employ foreign counsel to represent before foreign criminal 
courts, commissions or administrative agencies officials of the 
Department of Justice and all other law enforcement officers of the 
United States who are charged with violations of foreign law as a result 
of acts which they performed in the course and scope of their Government 
service.

[Order No. 441-70, 35 FR 16318, Oct. 17, 1970]



Sec. 0.47   Alien property matters.

    The Office of Alien Property shall be a part of the Civil Division:
    (a) The following described matters are assigned to, and shall be 
conducted, handled, or supervised by the Assistant Attorney General in 
charge of the Civil Division, who shall also be the Director of the 
Office of Alien Property:

[[Page 33]]

    (1) Exercising or performing all the authority, rights, privileges, 
powers, duties, and functions delegated to or vested in the Attorney 
General under the Trading with the Enemy Act, as amended, title II of 
the International Claims Settlement Act of 1949, as amended, the act of 
September 28, 1950, 64 Stat. 1079 (50 U.S.C. App. 40), the Philippine 
Property Act of 1946, as amended, and the Executive orders relating to 
such acts, including, but not limited to, vesting, supervising, 
controlling, administering, liquidating, selling, paying debt claims out 
of, returning, and settling of intercustodial disputes relating to, 
property subject to one or more of such acts.
    (2) Conducting and directing all civil litigation with respect to 
the Trading with the Enemy Act, title II of the International Claims 
Settlement Act, the Foreign Funds Control Program and the Foreign Assets 
Control Program.
    (3) Designating within the Office of Alien Property a certifying 
officer, and an alternate, to certify copies of documents issued by the 
Director, or his designee, which are required to be filed with the 
Office of the Federal Register.
    (b) The Director of the Office of Alien Property shall act for and 
on behalf of the Attorney General.
    (c) All the authority, rights, privileges, powers, duties, and 
functions of the Director of the Office of Alien Property may be 
exercised or performed by any agencies, instrumentalities, agents, 
delegates, or other personnel designated by him.
    (d) Existing delegations by the Assistant Attorney General, 
Director, Office of Alien Property, or the Director, Office of Alien 
Property, shall continue in force and effect until modified or revoked.
    (e) The Assistant Attorney General in charge of the Civil Division 
is authorized to administer and give effect to the provisions of the 
agreement entitled ``Agreement Between the United States of America and 
the Republic of Austria Regarding the Return of Austrian Property, 
Rights and Interests,'' which was concluded on January 30, 1959, and was 
ratified by the Senate of the United States on February 25, 1964.



Sec. 0.48   International trade litigation.

    The Attorney-in-Charge, International Trade Field Office, at 26 
Federal Plaza, New York, New York 10007, in the Office of the Assistant 
Attorney General, Civil Division, is designated to accept service of 
notices of appeals to the Court of Customs and Patent Appeals and all 
other papers filed in the Court of International Trade, when the United 
States is an adverse party. (28 U.S.C. 2633(c); 28 U.S.C. 2601(b)).

[Order No. 960-81, 46 FR 52345, Oct. 27, 1981]



Sec. 0.49   International judicial assistance.

    The Assistant Attorney General in charge of the Civil Division shall 
direct and supervise the following functions:
    (a) The functions of the ``Central Authority'' under the Convention 
between the United States and other Governments on the Taking of 
Evidence Abroad in Civil and Commercial Matters, TIAS 7444, which 
entered into force on October 7, 1972.
    (b) The functions of the ``Central Authority'' under the Convention 
between the United States and other Governments on the Service Abroad of 
Judicial and Extrajudicial Documents, TIAS 6638, which entered into 
force on February 10, 1969.
    (c) To receive letters of requests issued by foreign and 
international judicial authorities which are referred to the Department 
of Justice through diplomatic or other governmental channels, and to 
transmit them to the appropriate courts or officers in the United States 
for execution.
    (d) To receive and transmit through proper channels letters of 
request addressed by courts in the United States to foreign tribunals in 
connection with litigation to which the United States is a party.

[Order No. 555-73, 38 FR 32805, Nov. 28, 1973]



                    Subpart J--Civil Rights Division



Sec. 0.50  General functions.

    The following functions are assigned to, and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Civil Rights 
Division:
    (a) Enforcement of all Federal statutes affecting civil rights, 
including

[[Page 34]]

those pertaining to elections and voting, public accommodations, public 
facilities, school desegregation, employment (including 42 U.S.C. 2000e-
(6)), housing, abortion, sterilization, credit, and constitutional and 
civil rights of Indians arising under 25 U.S.C. 1301 et seq., and of 
institutionalized persons, and authorization of litigation in such 
enforcement, including criminal prosecutions and civil actions and 
proceedings on behalf of the Government and appellate proceedings in all 
such cases. Notwithstanding the provisions of the foregoing sentence, 
the responsibility for the enforcement of the following described 
provisions of the U.S. Code is assigned to the Assistant Attorney 
General, Criminal Division:
    (1) Sections 591 through 593 and sections 595 through 612 of title 
18, U.S. Code, relating to elections and political activities;
    (2) Sections 241, 242, and 594 of title 18, and sections 1973i and 
1973j of title 42, U.S. Code, insofar as they relate to voting and 
election matters not involving discrimination or intimidation on grounds 
of race or color, and section 245(b)(1) of title 18, U.S. Code, insofar 
as it relates to matters not involving discrimination or intimidation on 
grounds of race, color, religion, or national origin;
    (3) Section 245(b)(3) of title 18, U.S. Code, pertaining to forcible 
interference with persons engaged in business during a riot or civil 
disorder; and
    (4) Sections 241 through 256 of title 2, U.S. Code (Federal Corrupt 
Practices Act).
    (b) Requesting and reviewing investigations arising from reports or 
complaints of public officials or private citizens with respect to 
matters affecting civil rights.
    (c) Conferring with individuals and groups who call upon the 
Department in connection with civil rights matters, advising such 
individuals and groups thereon, and initiating action appropriate 
thereto.
    (d) Coordination within the Department of Justice of all matters 
affecting civil rights.
    (e) Consultation with and assistance to other Federal departments 
and agencies and State and local agencies on matters affecting civil 
rights.
    (f) Research on civil rights matters, and the making of 
recommendations to the Attorney General as to proposed policies and 
legislation relating thereto.
    (g) Representation of Federal officials in private litigation 
arising under 42 U.S.C. 2000d or under other statutes pertaining to 
civil rights.
    (h) Administration of section 5 of the Voting Rights Act of 1965, as 
amended (42 U.S.C. 1973c).
    (i) Upon request, assisting, as appropriate, the Commission on Civil 
Rights or other similar Federal bodies in carrying out research and 
formulating recommendations.
    (j) Administration of section 105 of the Civil Liberties Act of 1988 
(50 U.S.C. App. 1989b).
    (k) Upon request, certifications under 18 U.S.C. 245.
    (l) Enforcement and administration of the Americans with 
Disabilities Act of 1990, Public Law 101-336.
    (m) Community education, enforcement, and investigatory activities 
under section 102 of the Immigration Reform and Control Act of 1986, as 
amended.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969]

    Editorial Note: For Federal Register citations affecting Sec. 0.50, 
see the List of Sections Affected in the Finding Aids section of this 
volume.



Sec. 0.51  Leadership and coordination of nondiscrimination laws.

    (a) The Assistant Attorney General in charge of the Civil Rights 
Division shall, except as reserved herein, exercise the authority vested 
in and perform the functions assigned to the Attorney General by 
Executive Order 12250 (``Leadership and Coordination of 
Nondiscrimination Laws''). This delegation does not include the 
function, vested in the Attorney General by sections 1-101 and 1-102 of 
the Executive order, of approving agency rules, regulations, and orders 
of general applicability issued under the Civil Rights Act of 1964 and 
section 902 of the Education Amendments of 1972. Likewise, this 
delegation does not include the authority to issue those regulations 
under section 1-303 of the Executive Order which are required, by 
Sec. 0.180 of this

[[Page 35]]

part, to be issued by the Attorney General.
    (b) Under paragraph (a) of this section, the Assistant Attorney 
General in charge of the Civil Rights Division shall be responsible for 
coordinating the implementation and enforcement by Executive agencies of 
the nondiscrimination provisions of the following laws:
    (1) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.).
    (2) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et 
seq.).
    (3) Section 504 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 794).
    (4) 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.

[Order No. 944-81, 46 FR 29704, June 3, 1981]



Sec. 0.52   Certifications under 18 U.S.C. 3503.

    The Assistant Attorney General in charge of the Civil Rights 
Division and his Deputy Assistant Attorney Generals are each authorized 
to exercise or perform the functions or duties conferred upon the 
Attorney General by section 3503 of title 18, U.S. Code, to certify that 
the legal proceeding, in which a motion to take testimony by deposition 
is made, is against a person who is believed to have participated in an 
organized criminal activity, where the subject matter of the case or 
proceeding in which the motion is sought is within the cognizance of the 
Civil Rights Division pursuant to Sec. 0.50.

[Order No. 452-71, 36 FR 2601, Feb. 9, 1971]



Sec. 0.53  Office of Special Counsel for Immigration Related Unfair Employment Practices.

    (a) The Office of Special Counsel for Immigration Related Unfair 
Employment Practices shall be headed by a Special Counsel for 
Immigration Related Unfair Employment Practices (``Special Counsel''). 
The Special Counsel shall be appointed by the President for a term of 
four years, by and with the advice and consent of the Senate, pursuant 
to section 102 of the Immigration Reform and Control Act of 1986, as 
amended. The Office of Special Counsel shall be part of the Civil Rights 
Division of the Department of Justice, and the Special Counsel shall 
report directly to the Assistant Attorney General, Civil Rights 
Division.
    (b) In carrying out his or her responsibilities under the 
Immigration Reform and Control Act of 1986, as amended, the Special 
Counsel is authorized to:
    (1) Investigate charges of immigration-related unfair employment 
practices filed with the Office of Special Counsel and, when 
appropriate, file complaints with respect to those practices before 
specially designated administrative law judges within the Office of the 
Chief Administrative Hearing Officer, U.S. Department of Justice;
    (2) Intervene in proceedings involving complaints of immigration-
related unfair employment practices that are brought directly before 
such administrative law judges by parties other than the Special 
Counsel;
    (3) Conduct, on his or her own initiative, investigations of 
immigration-related unfair employment practices and, where appropriate, 
file complaints with respect to those practices before such 
administrative law judges;
    (4) Conduct, handle, and supervise litigation in U.S. District 
Courts for judicial enforcement of orders of administrative law judges 
regarding immigration-related unfair employment practices;
    (5) Initiate, conduct, and oversee activities relating to the 
dissemination of information to employers, employees, and the general 
public concerning immigration-related unfair employment practices;
    (6) Establish such regional offices as may be necessary;
    (7) Perform such other functions as the Assistant Attorney General, 
Civil Rights Division shall direct; and
    (8) Delegate to any of his or her subordinates any of the authority, 
functions, or duties vested in him or her.

[Order No. 2078-97, 62 FR 23658, May 1, 1997]

[[Page 36]]

                          Appendix to Subpart J

                          Civil Rights Division

                               [Memo 75-2]

    Note: Civil Rights Division Memo 75-2, was superseded by Civil 
Rights Division, Memo 78-1 appearing at 48 FR 3367, Jan. 25, 1983.

                               [Memo 78-1]

    Note: Civil Rights Division Memo 78-1 was superseded by Civil Rights 
Division Memo 92-3 appearing at 57 FR 19377, May 6, 1992.

                               [Memo 79-1]

 Delegation of Authority for Administration of Section 5 of the Voting 
                               Rights Act

    1. The authority of the Attorney General regarding administration of 
section 5 of the Voting Rights Act of 1965, as amended, (42 U.S.C. 
1973c) has been delegated to the Assistant Attorney General in charge of 
the Civil Rights Division.
    2. That authority is delegated to the Chief of the Voting Section, 
provided that any determination to object to a change affecting voting 
(see 28 CFR part 51) or to withdraw such an objection shall be made by 
the Assistant Attorney General.
    3. The Chief of the Voting Section may authorize the Deputy Chief or 
the Director of the section 5 unit to act on his or her behalf.

[44 FR 53080, Sept. 12, 1979]

                               [Memo 92-3]

 Delegation of Authority to Deny Freedom of Information Act and Privacy 
                              Act Requests

    1. The Chief of the Freedom of Information/Privacy Acts Branch will 
assume the duties and responsibilities previously assigned to the 
Assistant Attorney General by 28 CFR 16.4 (b) and (c) and 28 CFR 
16.42(b), as amended July 1, 1991, and defined in those sections, for 
denying requests and obtaining extensions of time under the Freedom of 
Information Act, 5 U.S.C. 552 et seq., and the Privacy Act, 5 U.S.C. 
552a et seq.
    2. The Chief of the Freedom of Information/Privacy Acts Branch who 
signs a denial or partial denial of a request for records made under the 
Freedom of Information Act or the Privacy Act shall be the ``person 
responsible for the denial'' within the meaning of 5 U.S.C. 552(a)(6)(C) 
and shall be responsible for denials made in accordance with 5 U.S.C. 
552a (j) and (k).
    3. This authority is limited to those records which are in the 
systems of records under the custody and control of the Civil Rights 
Division of the United States Department of Justice. The authority 
delegated herein may be redelegated by the Assistant Attorney General by 
internal memorandum.


[57 FR 19377, May 6, 1992]



                      Subpart K--Criminal Division



Sec. 0.55  General functions.

    The following functions are assigned to and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Criminal 
Division:
    (a) Prosecutions for Federal crimes not otherwise specifically 
assigned.
    (b) Cases involving criminal frauds against the United States except 
cases assigned to the Antitrust Division by Sec. 0.40(a) involving 
conspiracy to defraud the Federal Government by violation of the 
antitrust laws, and tax fraud cases assigned to the Tax Division by 
subpart N of this part.
    (c) All criminal and civil litigation under the Controlled 
Substances Act, 84 Stat. 1242, and the Controlled Substances Import and 
Export Act, 84 Stat. 1285 (titles II and III of the Comprehensive Drug 
Abuse Prevention and Control Act of 1970).
    (d) Civil or criminal forfeiture or civil penalty actions (including 
petitions for remission or mitigation of forfeitures and civil 
penalties, offers in compromise, and related proceedings) under the 
Federal Aviation Act of 1958, the Contraband Transportation Act, the 
Copyrights Act, the customs laws (except those assigned to the Civil 
Division which involve sections 592, 704(i)(2) or 734(i)(2) of the 
Tariff Act of 1930), the Export Control Act of 1949, the Federal Alcohol 
Administration Act, the Federal Seed Act, the Gold Reserve Act of 1934, 
the Hours of Service Act, the Animal Welfare Act, the Immigration and 
Nationality Act (except civil penalty actions and petitions and offers 
related thereto), the neutrality laws, laws relating to cigarettes, 
liquor, narcotics and dangerous drugs, other controlled substances, 
gambling, war materials, pre-Colombian artifacts, coinage, and firearms, 
locomotive inspection (45 U.S.C. 22, 23, 28-34), the Organized Crime 
Control Act of 1970, prison-made goods (18 U.S.C. 1761-1762), the Safety 
Appliance Act, standard barrels (15 U.S.C. 231-242), the Sugar Act of 
1948, and the Twenty-Eight Hour Law.

[[Page 37]]

    (e) Subject to the provisions of subpart Y of this part, 
consideration, acceptance, or rejection of offers in compromise of 
criminal and tax liability under the laws relating to liquor, narcotics 
and dangerous drugs, gambling, and firearms, in cases in which the 
criminal liability remains unresolved.
    (f) All criminal litigation and related investigations and inquiries 
pursuant to all the power and authority of the Attorney General to 
enforce the Immigration and Nationality Act and all other laws relating 
to the immigration and naturalization of aliens; all advice to the 
Attorney General with respect to the exercise of his parole authority 
under 8 U.S.C. 1182(d)(5) concerning aliens who are excludable under 8 
U.S.C. 1182(a)(23), (28), (29), or (33); and all civil litigation with 
respect to the individuals identified in 8 U.S.C. 1182(a)(33), 
1251(a)(19).
    (g) Coordination of enforcement activities directed against 
organized crime and racketeering.
    (h) Enforcement of the Act of January 2, 1951, 64 Stat. 1134, as 
amended by the Gambling Devices Act of 1962, 76 Stat. 1075, 15 U.S.C. 
1171 et seq., including registration thereunder. (See also 28 CFR 3.2)
    (i) All civil proceedings seeking exclusively equitable relief 
against Criminal Division activities including criminal investigations, 
prosecutions and other criminal justice activities (including without 
limitation, applications for writs of habeas corpus not challenging 
exclusion, deportation or detention under the immigration laws and coram 
nobis), except that any proceeding may be conducted, handled, or 
supervised by another division by agreement between the head of such 
division and the Assistant Attorney General in charge of the Criminal 
Division.
    (j) International extradition proceedings.
    (k) Relation of military to civil authority with respect to criminal 
matters affecting both.
    (l) All criminal matters arising under the Labor-Management 
Reporting and Disclosure Act of 1959 (73 Stat. 519).
    (m) Enforcement of the following-described provisions of the United 
States Code--
    (1) Sections 591 through 593 and sections 595 through 612 of title 
18, U.S. Code, relating to elections and political activities;
    (2) Sections 241, 242, and 594 of title 18, and sections 1973i and 
1973j of title 42, U.S. Code, insofar as they relate to voting and 
election matters not involving discrimination or intimidation on grounds 
of race or color, and section 245(b)(1) of title 18 U.S. Code, insofar 
as it relates to matters not involving discrimination or intimidation on 
grounds of race, color, religion, or national origin;
    (3) Section 245(b)(3) of title 18, U.S. Code, pertaining to forcible 
interference with persons engaged in business during a riot or civil 
disorder; and
    (4) Sections 241 through 256 of title 2, U.S. Code (Federal Corrupt 
Practices Act). (See Sec. 0.50(a).)
    (n) Civil actions arising under 39 U.S.C. 3010, 3011 (Postal 
Reorganization Act).
    (o) Resolving questions that arise as to Federal prisoners held in 
custody by Federal officers or in Federal prisons, commitments of 
mentally defective defendants and juvenile delinquents, validity and 
construction of sentences, probation, and parole.
    (p) Supervision of matters arising under the Escape and Rescue Act 
(18 U.S.C. 751, 752), the Fugitive Felon Act (18 U.S.C. 1072, 1073), and 
the Obstruction of Justice Statute (18 U.S.C. 1503).
    (q) Supervision of matters arising under the Bail Reform Act of 1966 
(28 U.S.C. 3041-3143, 3146-3152, 3568).
    (r) Supervision of matters arising under the Narcotic Addict 
Rehabilitation Act of 1966 (18 U.S.C. 4251-4255; 28 U.S.C. 2901-2906; 42 
U.S.C. 3411-3426, 3441, 3442).
    (s) Civil proceedings in which the United States is the plaintiff 
filed under the Organized Crime Control Act of 1970, 18 U.S.C. 1963-
1968.
    (t) Upon request, certifications under 18 U.S.C. 245.
    (u) Exercise of the authority vested in the Attorney General under 
10 U.S.C. 374(b)(2)(E) to approve the use of military equipment by 
Department of Defense personnel to provide transportation and base of 
operations support

[[Page 38]]

in connection with a civilian law enforcement operation.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969]

    Editorial Note: For Federal Register citations affecting Sec. 0.55, 
see the List of Sections Affected in the Finding Aids section of this 
volume.



Sec. 0.56   Exclusive or concurrent jurisdiction.

    The Assistant Attorney General in charge of the Criminal Division is 
authorized to determine administratively whether the Federal Government 
has exclusive or concurrent jurisdiction over offenses committed upon 
lands acquired by the United States, and to consider problems arising 
therefrom.



Sec. 0.57   Criminal prosecutions against juveniles.

    The Assistant Attorney General in charge of the Criminal Division 
and his Deputy Assistant Attorneys General are each authorized to 
exercise the power and authority vested in the Attorney General by 
sections 5032 and 5036 of title 18, United States Code, relating to 
criminal proceedings against juveniles. The Assistant Attorney General 
in charge of the Criminal Division is authorized to redelegate any 
function delegated to him under this section to United States Attorneys 
and to the Chief of the Section within the Criminal Division which 
supervises the implementation of the Juvenile Justice and Delinquency 
Prevention Act (18 U.S.C. 5031 et seq.).

[Order No. 579-74, 39 FR 37771, Oct. 24, 1974, as amended by Order No. 
894-80, 45 FR 34269, May 22, 1980]



Sec. 0.58  Delegation respecting payment of benefits for disability or death of law enforcement officers not employed by the United States.

    The Assistant Attorney General in charge of the Criminal Division 
and his Deputy Assistant Attorneys General are each authorized to 
exercise or perform any of the functions or duties conferred upon the 
Attorney General by the Act to Compensate Law Enforcement Officers not 
Employed by the United States Killed or Injured While Apprehending 
Persons Suspected of Committing Federal Crimes (5 U.S.C. 8191, 8192, 
8193). The Assistant Attorney General in charge of the Criminal Division 
is authorized to redelegate any function delegated to him under this 
section to the Chief of the Section within the Criminal Division which 
supervises the implementation of the aforementioned Compensation Act.

[Order No. 1010-83, 48 FR 19023, Apr. 27, 1983]



Sec. 0.59   Certain certifications under 18 U.S.C. 3331 and 3503.

    (a) The Assistant Attorney General in charge of the Criminal 
Division is authorized to exercise or perform the functions or duties 
conferred upon the Attorney General by section 3331 of title 18, United 
States Code, to certify that in his judgment a special grand jury is 
necessary in any judicial district of the United States because of 
criminal activity within such district.
    (b) The Assistant Attorney General in charge of the Criminal 
Division and his Deputy Assistant Attorney Generals are each authorized 
to exercise or perform the functions or duties conferred upon the 
Attorney General by section 3503 of title 18, United States Code, to 
certify that the legal proceeding, in which a motion to take testimony 
by deposition is made, is against a person who is believed to have 
participated in an organized criminal activity, where the subject matter 
of the case or proceeding in which the motion is sought is within the 
cognizance of the Criminal Division pursuant to Sec. 0.55, or is not 
within the cognizance of the Civil Rights Division.

[Order No. 452-71, 36 FR 2601, Feb. 9, 1971, as amended by Order No. 
511-73, 38 FR 8152, March 29, 1973]



Sec. 0.61  Functions relating to internal security.

    The following functions are assigned to and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Criminal 
Division:
    (a) Enforcement of all criminal laws relating to subversive 
activities and kindred offenses directed against the internal security 
of the United States, including the laws relating to treason, sabotage, 
espionage, and sedition; enforcement of the Foreign Assets Control 
Regulations issued under the Trading With the Enemy Act (31 CFR 500.101

[[Page 39]]

et seq.); criminal prosecutions under the Atomic Energy Act of 1954, the 
Smith Act, the neutrality laws, the Arms Export Control Act, the Federal 
Aviation Act of 1958 (49 U.S.C. 1523) relating to offenses involving the 
security control of air traffic, and 18 U.S.C. 799; and criminal 
prosecutions for offenses, such as perjury and false statements, arising 
out of offenses relating to national security.
    (b) Administration and enforcement of the Foreign Agents 
Registration Act of 1938, as amended; the act of August 1, 1956, 70 
Stat. 899 (50 U.S.C. 851-857), including the determination in writing 
that the registration of any person coming within the purview of the act 
would not be in the interest of national security; and the Voorhis Act.
    (c) Administration and enforcement of the Internal Security Act of 
1950, as amended.
    (d) Civil proceedings seeking exclusively equitable relief against 
laws, investigations or administrative actions designed to protect the 
national security (including without limitation personnel security 
programs and the foreign assets control program).
    (e) Interpretation of Executive Order 10450 of April 27, 1953, as 
amended, and advising other departments and agencies in connection with 
the administration of the Federal employees security program, including 
the designation of organizations as required by the order; the 
interpretation of Executive Order 10501 of November 5, 1953, as amended, 
and of regulations issued thereunder in accordance with section 11 of 
that order; and the interpretation of Executive Order 10865 of February 
20, 1960.
    (f) Libels and civil penalty actions (including petitions for 
remission or mitigation of civil penalties and forfeitures, offers in 
compromise and related proceedings) arising out of violations of the 
Trading with the Enemy Act, the neutrality statutes and the Arms Export 
Control Act.
    (g) Enforcement and administration of the provisions of 2 U.S.C. 
441e relating to contributions by foreign nationals.
    (h) Enforcement and administration of the provisions of 18 U.S.C. 
219, relating to officers and employees of the United States acting as 
agents of foreign principals.
    (i) Criminal matters arising under the Military Selective Service 
Act of 1967.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
451-71, 36 FR 1251, Jan. 27, 1971; Order No. 511-73, 38 FR 8152, Mar. 
29, 1973; Order No. 673-76, 41 FR 54176, Dec. 13, 1976; Order No. 960-
81, 46 FR 52345, Oct. 27, 1981]



Sec. 0.62   Representative capacities.

    The Assistant Attorney General in charge of the Criminal Division 
shall:
    (a) Be a member and serve as Chairman of the committee which 
represents the Department of Justice in the development and 
implementation of plans for exchanging visits between the Iron Curtain 
countries and the United States and have authority to designate an 
alternate to serve on such committee.
    (b) Provide Department of Justice representation on the 
Interdepartmental Committee on Internal Security.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
511-73, 38 FR 8152, Mar. 29, 1973]



Sec. 0.63  Delegation respecting admission and naturalization of certain aliens.

    (a) The Assistant Attorney General in charge of the Criminal 
Division and the Deputy Assistant Attorney General, Criminal Division, 
are each authorized to exercise the power and authority vested in the 
Attorney General by section 7 of the Central Intelligence Agency Act of 
1949, as amended, 50 U.S.C. 403h, with respect to entry of certain 
aliens into the United States for permanent residence.
    (b) The Assistant Attorney General in charge of the Criminal 
Division and the Deputy Assistant Attorneys General, Criminal Division, 
are each authorized to exercise the power and authority vested in the 
Attorney General by section 316(f) of the Immigration and Nationality 
Act, 8 U.S.C. 1427(f), with respect to the naturalization of certain 
foreign intelligence sources.

[Order No. 1556-92, 57 FR 1643, Jan. 15, 1992]

[[Page 40]]



Sec. 0.64   Certifications under 18 U.S.C. 3503.

    The Assistant Attorney General in charge of the Criminal Division 
and his Deputy Assistant Attorney Generals are each authorized to 
exercise or perform the functions or duties conferred upon the Attorney 
General by section 3503 of title 18, United States Code, to certify that 
the legal proceeding, in which a motion to take testimony by deposition 
is made, is against a person who is believed to have participated in an 
organized criminal activity, where the subject matter of the case or 
proceeding in which the motion is sought is within the cognizance of the 
Criminal Division pursuant to Sec. 0.61.

[Order No. 452-71, 36 FR 2601, Feb. 9, 1971, as amended by Order No. 
511-73, 38 FR 8152, Mar. 29, 1973]



Sec. 0.64-1  Central or Competent Authority under treaties and executive agreements on mutual assistance in criminal matters.

    The Assistant Attorney General in charge of the Criminal Division 
shall have the authority and perform the functions of the ``Central 
Authority'' or ``Competent Authority'' (or like designation) under 
treaties and executive agreements between the United States of America 
and other countries on mutual assistance in criminal matters which 
designate the Attorney General or the Department of Justice as such 
authority. The Assistant Attorney General, Criminal Division, is 
authorized to redelegate this authority to the Deputy Assistant 
Attorneys General, Criminal Division, and to the Director and Deputy 
Directors of the Office of International Affairs, Criminal Division.

[Order 918-80, 45 FR 79758, Dec. 2, 1980, as amended by Order 1274-88, 
53 FR 21997, June 13, 1988; Order 1906-94, 59 FR 41242, Aug. 11, 1994]



Sec. 0.64-2  Delegation respecting transfer of offenders to or from foreign countries.

    The Assistant Attorney General in charge of the Criminal Division is 
authorized to exercise all of the power and authority vested in the 
Attorney General under section 4102 of title 18, U.S. Code, which has 
not been delegated to the Director of the Bureau of Prisons under 28 CFR 
0.96b, including specifically the authority to find the transfer of 
offenders to or from a foreign country under a treaty as referred to in 
Public Law 95-44 appropriate or inappropriate. The Assistant Attorney 
General in charge of the Criminal Division is authorized to redelegate 
this authority to his Deputy Assistant Attorneys General, the Senior 
Associate Director of the Office of Enforcement Operations and, in the 
Senior Associate Director's absence, the Director, Office of Enforcement 
Operations.

[Order No. 872-80, 45 FR 6541, Jan. 29, 1980, as amended by Order 1265-
88, 53 FR 10871, Apr. 4, 1988]



Sec. 0.64-3  Delegation respecting designation of certain Department of Agriculture employees (Tick Inspectors) to carry and use firearms.

    The Assistant Attorney General in charge of the Criminal Division is 
authorized to exercise all the power and authority vested in the 
Attorney General under section 2274 of title 7, U.S. Code, concerning 
the designation of certain Department of Agriculture employees (Tick 
Inspectors) to carry and use firearms. This delegation includes the 
power and authority to issue, with the Department of Agriculture, joint 
rules and regulations pertaining to the carrying and use of such 
firearms, which would, when promulgated, supersede the existing 
regulations pertaining to the carrying and use of firearms by Tick 
Inspectors, promulgated by the Attorney General and contained in 
Attorney General's Order No. 1059-84. The Assistant Attorney General in 
charge of the Criminal Division is authorized to redelegate all of this 
authority under section 2274 to his Deputy Assistant Attorneys General 
and appropriate Office Directors and Section Chiefs.

[Order No. 1064-84, 49 FR 35934, Sept. 13, 1984]



Sec. 0.64-4  Delegation respecting temporary transfers, in custody of certain prisoner-witnesses from a foreign country to the United States to testify in 
          Federal or State criminal proceedings.

    The Assistant Attorney General in charge of the Criminal Division is 
authorized to exercise all of the power

[[Page 41]]

and authority vested in the Attorney General under 18 U.S.C. 3508 which 
has not been delegated to the Director of the United States Marshals 
Service under 28 CFR 0.111a, including specifically the authority to 
determine whether and under what circumstances temporary transfer of a 
prisoner-witness to the United States is appropriate or inappropriate; 
to determine the point at which the witness should be returned to the 
transferring country; and to enter into appropriate agreements with the 
transferring country regarding the terms and conditions of the transfer. 
The Assistant Attorney General in charge of the Criminal Division is 
authorized to redelegate this authority to the Deputy Assistant 
Attorneys General, Criminal Division, and to the Director and Deputy 
Directors of the Office of International Affairs, Criminal Division.

[Order 1913-94, 59 FR 46551, Sept. 9, 1994]

                          Appendix to Subpart K

                            Criminal Division

                            [Directive 8-75]

    Editorial Note: Criminal Division Directive 8-75, was superseded by 
Criminal Division Directive 58, appearing at 44 FR 18661, Mar. 29, 1979.

                             [Directive 58]

          Delegation Respecting Denial of Information Requests

    The Assistant Attorney General in charge of the Criminal Division, 
hereby, delegates pursuant to 28 CFR 16.5(b) (as amended March 1, 1975) 
and 28 CFR 16.45(a), his authority under those sections to deny a 
request for information under 5 U.S.C. 552(a) or 5 U.S.C. 552a to the 
Director and Associate Director of the Office of Legal Support Services 
of the Criminal Division and to the Deputy Assistant Attorney General of 
the Criminal Division who supervises that Office. The Director, 
Associate Director, or Deputy Assistant Attorney General making the 
denial shall be the ``person responsible for the denial,'' within the 
meaning of 5 U.S.C. 552(a).

                           [Directive No. 73]

  Redelegation of Authority to Deputy Assistant Attorneys General and 
 Director of the Office of International Affairs Respecting Transfer of 
                 Offenders to and From Foreign Countries

    By virtue of the authority vested in me by Sec. 0.64 -2 of title 28 
of the Code of Federal Regulations, the authority delegated to me by 
that section to exercise all of the power and authority vested in the 
Attorney General under Section 4102 of title 18, U.S. Code, which has 
not been delegated to the Director of the Bureau of Prisons, including 
specifically the authority to find the transfer of offenders to or from 
a foreign country under a treaty as referred to in Public Law 95-44 
appropriate or inappropriate, is hereby redelegated to each of the 
Deputy Assistant Attorneys General and the Director of the Office of 
International Affairs of the Criminal Division.

                           [Directive No. 81A]

  Redelegation of Authority to Deputy Assistant Attorneys General and 
  Director and Deputy Directors of the Office of International Affairs 
 Regarding Authority To Act as Central Authority or Competent Authority 
Under Treaties and Executive Agreements on Mutual Assistance in Criminal 
                                 Matters

    By virtue of the authority vested in me by Sec. 0.64-1 of title 28 
of the Code of Federal Regulations, the Authority delegated to me by 
that section to exercise all of the power and authority vested in the 
Attorney General under treaties and executive agreements on mutual 
assistance in criminal matters is hereby redelegated to each of the 
Deputy Assistant Attorneys General, to the Director of the Office of 
International Affairs and to each of the Deputy Directors of the Office 
of International Affairs, Criminal Division.

                           [Directive No. 81B]

  Redelegation of Authority to Deputy Assistant Attorneys General and 
  Director and Deputy Directors of the Office of International Affairs 
    Respecting Temporary Transfers, in Custody, of Certain Prisoner-
         Witnesses from a Foreign Country to the United States .

    By virtue of the authority vested in me by 28 CFR 0.64-4, the 
authority delegated to me by that section to exercise all of the power

[[Page 42]]

and authority vested in the Attorney General under section 3508 of title 
18, United States Code, which has not been delegated to the Director, 
United States Marshals Service under 28 CFR 0.111a, is hereby 
redelegated to each of the Deputy Assistant Attorneys General, and to 
the Director and each of the Deputy Directors of the Office 
International Affairs, Criminal Division.

[44 FR 18661, Mar. 29, 1979, as amended at 45 FR 6541, Jan. 29, 1980; 48 
FR 54595, Dec. 6, 1983; 59 FR 42161, Aug. 17, 1994; 59 FR 46550, Sept. 
9, 1994]



                          Subpart L [Reserved]



             Subpart M--Land and Natural Resources Division



Sec. 0.65   General functions.

    The following functions are assigned to and shall be conducted, 
handled, or supervised by the Assistant Attorney General in charge of 
the Land and Natural Resources Division:
    (a) Civil suits and matters in Federal and State courts (and 
administrative tribunals), by or against the United States, its 
agencies, officers, or contractors, or in which the United States has an 
interest, whether for specific or monetary relief, and also 
nonlitigation matters, relating to:
    (1) The public domain lands and the outer continental shelf of the 
United States.
    (2) Other lands and interests in real property owned, leased, or 
otherwise claimed or controlled, or allegedly impaired or taken, by the 
United States, its agencies, officers, or contractors, including the 
acquisition of such lands by condemnation proceedings or otherwise,
    (3) The water and air resources controlled or used by the United 
States, its agencies, officers, or contractors, without regard to 
whether the same are in or related to the lands enumerated in paragraphs 
(a) (1) and (2) of this section, and
    (4) The other natural resources in or related to such lands, water, 
and air,

except that the following matters which would otherwise be included in 
such assignment are excluded therefrom:
    (i) Suits and matters relating to the use or obstruction of 
navigable waters or the navigable capacity of such waters by ships or 
shipping thereon, the same being specifically assigned to the Civil 
Division;
    (ii) Suits and matters involving tort claims against the United 
States under the Federal Tort Claims Act and special acts of Congress, 
the same being specifically assigned to the Civil Division;
    (iii) Suits and matters involving the foreclosure of mortgages and 
other liens held by the United States, the same being specifically 
assigned to the Civil and Tax Divisions according to the nature of the 
lien involved;
    (iv) Suits arising under 28 U.S.C. 2410 to quiet title or to 
foreclose a mortgage or other lien, the same being specifically assigned 
to the Civil and Tax Divisions according to the nature of the lien held 
by the United States, and all other actions arising under 28 U.S.C. 2410 
involving federal tax liens held by the United States, which are 
specifically assigned to the Tax Division;
    (v) Matters involving the immunity of the Federal Government from 
State and local taxation specifically delegated to the Tax Division by 
Sec. 0.71.
    (b) Representation of the interests of the United States in all 
civil litigation in Federal and State courts, and before the Indian 
Claims Commission, pertaining to Indians, Indian tribes, and Indian 
affairs, and matters relating to restricted Indian property, real or 
personal, and the treaty rights of restricted Indians (except matters 
involving the constitutional and civil rights of Indians assigned to the 
Civil Rights Division by subpart J of this part).
    (c) Rendering opinions as to the validity of title to all lands 
acquired by the United States, except as otherwise specified by statute.
    (d) Civil and criminal suits and matters involving air, water, 
noise, and other types of pollution, the regulation of solid wastes, 
toxic substances, pesticides under the Federal Insecticide, Fungicide, 
and Rodenticide Act, and the control of the environmental impacts of 
surface coal mining.

[[Page 43]]

    (e) Civil and criminal suits and matters involving obstructions to 
navigation, and dredging or filling (33 U.S.C. 403).
    (f) Civil and criminal suits and matters arising under the Atomic 
Energy Act of 1954 (42 U.S.C. 2011, et seq.) insofar as it relates to 
the prosecution of violations committed by a company in matters 
involving the licensing and operations of nuclear power plants.
    (g) Civil and criminal suits and matters relating to the natural and 
biological resources of the coastal and marine environments, the outer 
continental shelf, the fishery conservation zone and, where permitted by 
law, the high seas.
    (h) Performance of the Department's functions under Sec. 706.5 of 
the regulations for the prevention of conflict of interests promulgated 
by the Secretary of the Interior under the authority of the Surface 
Mining Control and Reclamation Act of 1977, section 201(f), 91 Stat. 
450, and contained in 30 CFR part 706.
    (i) Conducting the studies of processing sites required by section 
115(b) of the Uranium Mill Tailings Radiation Control Act of 1978, 
publishing the results of the studies and furnishing the results thereof 
to the Congress.
    (j) Criminal suits and civil penalty and forfeiture actions relating 
to wildlife law enforcement under the Endangered Species Act of 1973 (16 
U.S.C. 1531-1543); the Lacey Act and related provisions (18 U.S.C. 41-
44, 47); the Black Bass Act (16 U.S.C. 851-856); the Airborne Hunting 
Act (16 U.S.C. 742j-1); the Migratory Bird Act (16 U.S.C. 701, et seq.); 
the Wild Horses and Wild Burros Act (16 U.S.C. 1331-1340); the Bald and 
Golden Eagle Protection Act (16 U.S.C. 668-668d); and the Fish and 
Wildlife Coordination Act (16 U.S.C. 661 et seq.).

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
540-73, 38 FR 26910, Sept. 27, 1973; Order No. 699-77, 42 FR 15315, Mar. 
21, 1977; Order No. 764-78, 43 FR 3115, Jan. 23, 1978; Order No. 809-78, 
43 FR 55394, Nov. 28, 1978; Order No. 960-81, 46 FR 52346, Oct. 27, 
1981; Order No. 1083-85, 50 FR 8607, Mar. 4, 1985]



Sec. 0.65a  Litigation involving Environmental Protection Agency.

    With respect to any matter assigned to the Land and natural 
Resources Division in which the Environmental Protection Agency is a 
party, the Assistant Attorney General in charge of the Land and Natural 
Resources Division, and such members of his staff as he may specifically 
designate in writing, are authorized to exercise the functions and 
responsibilities undertaken by the Attorney General in the Memorandum of 
Understanding between the Department of Justice and the Environmental 
Protection Agency (42 FR 48942), except that subpart Y of this part 
shall continue to govern as authority to compromise and close civil 
claims in such matters.

[Order No. 764-78, 43 FR 3115, Jan. 23, 1978]



Sec. 0.66   Delegation respecting title opinions.

    (a) The Assistant Attorney General in charge of the Land and Natural 
Resources Division or such members of his staff as he may specifically 
designate in writing, are authorized to sign the name of the Attorney 
General to opinions on the validity of titles to property acquired by or 
on behalf of the United States, except those which, in the opinion of 
the Assistant Attorney General involve questions of policy or for any 
other reason require the personal attention of the Attorney General.
    (b) Pursuant to the provisions of section 1 of Public Law 91-393, 
approved September 1, 1970, 84 Stat. 835, the Assistant Attorney General 
in charge of the Land and Natural Resources Division is authorized:
    (1) To exercise the Attorney General's power of delegating to other 
departments and agencies his (the Attorney General's) responsibility for 
approving the title to lands acquired by them,
    (2) With respect to delegations so made to other departments and 
agencies, to exercise the Attorney General's function of general 
supervision regarding the carrying out by such departments and agencies 
of the responsibility so entrusted to them, and

[[Page 44]]

    (3) To promulgate regulations and any appropriate amendments thereto 
governing the approval of land titles by such departments and agencies.

[Order No. 440-70, 35 FR 16084, Oct. 14, 1970]



Sec. 0.67   Delegation respecting conveyances for public-airport purposes.

    The Assistant Attorney General in charge of the Land and Natural 
Resources Division, and such members of his staff as he may specifically 
designate in writing, are authorized to exercise the power and authority 
vested in the Attorney General by section 23(b) of the Airport and 
Airway Development Act of 1970 (84 Stat. 219; 49 U.S.C. 1723) with 
respect to approving the performance of acts and execution of 
instruments necessary to make the conveyances requested in carrying out 
the purposes of that section, except those acts and instruments which, 
in the opinion of the Assistant Attorney General, involve questions of 
policy or for any other reason require the personal attention of the 
Attorney General.

[Order No. 468-71, 36 FR 20428, Oct. 22, 1971]



Sec. 0.68   Delegation respecting mineral leasing.

    The Assistant Attorney General in charge of the Land and Natural 
Resources Division, and such members of his staff as he may specifically 
designate in writing, are authorized to execute the power and authority 
of the Attorney General under the provisions of section 3 of the act of 
August 7, 1947, 61 Stat. 914, 30 U.S.C. 352, respecting the leasing of 
minerals on lands under the jurisdiction of the Department of Justice.

[Order No. 542-73, 38 FR 28289, Oct. 12, 1973]



Sec. 0.69  Delegation of authority to make determinations and grants.

    The Assistant Attorney General in charge of the Land and Natural 
Resources Division, or such members of his staff as he may specifically 
designate in writing, are authorized to exercise the power and authority 
vested in the Attorney General by Public Law 87-852, approved October 
23, 1962 (40 U.S.C. 319), with respect to making the determinations and 
grants necessary in carrying out the purposes of that Act, except those 
acts and instruments which in the opinion of the Assistant Attorney 
General involve questions of policy or for any other reason require the 
personal attention of the Attorney General.

[Order No. 736-77, 42 FR 38177, July 27, 1977]



Sec. 0.69a  Delegation respecting approval of conveyances.

    The Assistant Attorney General in charge of the Land and Natural 
Resources Division, and such members of his staff as he may specifically 
designate in writing, are authorized to exercise the power and authority 
vested in the Attorney General by the Act of June 4, 1934, 48 Stat. 836, 
with respect to approving the making or acceptance of conveyances by the 
Secretary of the Interior on behalf of the United States.

[Order No. 947-81, 46 FR 29931, June 4, 1981]



Sec. 0.69b  Delegation of authority respecting conveyances for public airports.

    The Assistant Attorney General in charge of the Land and Natural 
Resources Division, and such members of his staff as he may specifically 
designate in writing, are authorized to exercise the power and authority 
vested in the Attorney General of section 516(b) of The Airport and 
Airway Improvement Act of 1982 (96 Stat. 671, 692) with respect to 
approving the performance of acts and execution of instruments necessary 
to make the conveyance requested in carrying out the purposes of that 
section, except those acts and instruments which in the opinion of the 
Assistant Attorney General, involve questions of policy or for any other 
reason require the personal attention of the Attorney General.

[Order No. 1069-84, 49 FR 39843, Oct. 11, 1984]



Sec. 0.69c  Litigation involving the Resource Conservation and Recovery Act.

    (a) The authority to receive complaints served upon the Attorney 
General pursuant to section 401 of the Hazardous Waste Amendments of 
1984 (Pub. L. 616, 98th Cong.; 42 U.S.C. 6872(b)(2)(F)) is hereby 
delegated to the Assistant Attorney General, Land and

[[Page 45]]

Natural Resources Division. Every plantiff required to serve upon the 
Attorney General a copy of their complaint, should do so by sending a 
copy of the complaint, together with all attachments thereto required by 
the Federal Rules of Civil Procedure and the Local Rules for the Federal 
District Court in which the complaint if filed, via first class mail, to 
the Assistnt Attorney General, Land and Natural Resources Division, U.S. 
Department of Justice, NW., Washington, DC 20530.
    (b) Services pursuant to section 401 shall be deemed effective upon 
the date the complaint is received by the Assistant Attorney General.

[Order No. 1099-85, 50 FR 26198, June 25, 1985]



                         Subpart N--Tax Division



Sec. 0.70   General functions.

    The following functions are assigned to and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Tax Division:
    (a) Prosecution and defense in all courts, other than the Tax Court, 
of civil suits, and the handling of other matters, arising under the 
internal revenue laws, and litigation resulting from the taxing 
provisions of other Federal statutes (except civil forfeiture and civil 
penalty matters arising under laws relating to liquor, narcotics, 
gambling, and firearms assigned to the Criminal Division by 
Sec. 0.55(d)).
    (b) Criminal proceedings arising under the internal revenue laws, 
except the following: Proceedings pertaining to misconduct of Internal 
Revenue Service personnel, to taxes on liquor, narcotics, firearms, 
coin-operated gambling and amusement machines, and to wagering, forcible 
rescue of seized property (26 U.S.C. 7212(b)), corrupt or forcible 
interference with an officer or employee acting under the Internal 
Revenue laws (26 U.S.C. 7212(a)), unauthorized disclosure of information 
(26 U.S.C. 7213), and counterfeiting, mutilation, removal, or reuse of 
stamps (26 U.S.C. 7208).
    (c)(1) Enforcement of tax liens, and mandamus, injunctions, and 
other special actions or general matters arising in connection with 
internal revenue matters.
    (2) Defense of actions arising under section 2410 of title 28 of the 
U.S. Code whenever the United States is named as a party to an action as 
the result of the existence of a Federal tax lien, including the defense 
of other actions arising under section 2410, if any, involving the same 
property whenever a tax-lien action is pending under that section.
    (d) Appellate proceedings in connection with civil and criminal 
cases enumerated in paragraphs (a) through (c) of this section and in 
Sec. 0.71, including petitions to review decisions of the Tax Court of 
the United States.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 699-77, 42 FR 15315, Mar. 
21, 1977; Order No. 960-81, 46 FR 52346, Oct. 27, 1981]



Sec. 0.71   Delegation respecting immunity matters.

    The Assistant Attorney General in charge of the Tax Division is 
authorized to handle matters involving the immunity of the Federal 
Government from State or local taxation (except actions to set aside ad 
valorem taxes, assessments, special assessments, and tax sales of 
Federal real property, and matters involving payments in lieu of taxes), 
as well as State or local taxation involving contractors performing 
contracts for or on behalf of the United States.



                 Subpart O--Justice Management Division



Sec. 0.75   Policy functions.

    The Assistant Attorney General for Administration shall head the 
Justice Management Division and shall provide advice relating to basic 
Department policy for budget and financial management, program 
evaluation, auditing, personnel management and training, procurement, 
information processing and telecommunications, security and for all 
matters pertaining to organization, management, and administration. The 
following matters are assigned to, and shall be conducted, handled, or 
supervised by, the Assistant Attorney General for Administration:

[[Page 46]]

    (a) Conduct, direct, review, and evaluate management studies and 
surveys of the Department's organizational structure, functions, and 
programs, operating procedures and supporting systems, and management 
practices throughout the Department; and make recommendations to reduce 
costs and increase productivity.
    (b) Supervise, direct, and review the preparation, justification and 
execution of the Department of Justice budget, including the 
coordination and control of the programming and reprogramming of funds.
    (c) Review, analyze, and coordinate the Department's programs and 
activities to ensure that the Department's use of resources and 
estimates of future requirements are consistent with the policies, 
plans, and mission priorities of the Attorney General.
    (d) Plan, direct, and coordinate Department-wide personnel 
management programs, and develop and issue Department-wide policy in all 
personnel program areas, including training, position classification and 
pay administration, staffing, employee performance evaluation, employee 
development, employee relations and services, employee recognition and 
incentives, equal employment opportunity programs, including the equal 
opportunity recruitment program (5 U.S.C. 7201), personnel program 
evaluation, labor management relations, adverse action hearings and 
appeals, employee grievances, and employee health programs.
    (e) Develop and direct Department-wide financial management 
policies, programs, procedures, and systems including financial 
accounting, planning, analysis, and reporting.
    (f) Supervise and direct the operation of the Department's central 
payroll system, automated information services, publication services, 
library services and any other Department-wide central services which 
are established by or assigned to the Justice Management Division.
    (g) Formulate and administer the General Administration 
Appropriation of the Department's budget.
    (h) Formulate Department-wide audit policies, standards and 
procedures; develop, direct and supervise independent and comprehensive 
internal audits, including examinations authorized by 28 U.S.C. 526, of 
all organizations, programs, and functions of the Department, and audits 
of expenditures made under the Department's contracts and grants to 
ensure compliance with laws, regulations and generally accepted 
accounting principles; economy and efficiency in operation; and that 
desired results are being achieved.
    (i) Develop and direct a Department-wide directives management 
program and administer the directives management system.
    (j) Plan, direct, administer, and monitor compliance with 
Department-wide policies, procedures, and regulations concerning 
records, reports, procurement, printing, graphics, audiovisual 
activities (including the approval or disapproval of production and 
equipment requests), forms management, supply management, motor 
vehicles, real and personal property, space assignment and utilization, 
and all other administrative services functions.
    (k) Formulate Department policies, standards, and procedures for 
information systems and the management and use of automatic data 
processing equipment; review the use and performance of information 
systems with respect to Department objectives, plans, policies, and 
procedures; provide technical leadership and support to new Department-
wide information systems; review and approve all contracts for 
information processing let by the Department, and provide the final 
review and approval of systems and procedures and standards for use of 
data elements and codes.
    (l) Formulate policies, standards, and procedures for Department 
telecommunications systems and equipment and review their 
implementation.
    (m) Provide computer and digital telecommunications services on an 
equitable resource-sharing basis to all organizational units within the 
Department.
    (n) Formulate Department policies for the use of consultants and 
non-personal service contracts, review, and approve all nonpersonal 
service contracts, and review the implementation of Department policies.
    (o) Serve as liaison with state and local governments on management 
affairs, and coordinate the Department's

[[Page 47]]

participation in Federal regional interagency bodies.
    (p) Direct all Department security programs including personnel, 
physical, document, information processing and telecommunications, 
special intelligence, and employee health and safety programs and 
formulate and implement Department defense mobilization and contingency 
planning.
    (q) Review legislation for potential impact on the Department's 
resources.
    (r) Develop and implement a legal information coordination system 
for the use of the Department of Justice and, as appropriate, the 
Federal Government as a whole.

[Order No. 543-73, 38 FR 29585, Oct. 26, 1973, as amended by Order No. 
565-74, 39 FR 15875, May 6, 1974; Order No. 699-77, 42 FR 15315, Mar. 
21, 1977; Order No. 722-77, 42 FR 25499, May 18, 1977; Order No. 960-81, 
46 FR 52346, Oct. 27, 1981]



Sec. 0.76   Specific functions.

    The functions delegated to the Assistant Attorney General for 
Administration by this subpart O shall also include the following 
specific policy functions:
    (a) Directing the Department's financial management operations, 
including control of the accounting for appropriations and expenditures, 
employment limitations, voucher examination and audit, overtime pay, 
establishing per diem rates, promulgation of policies for travel, 
transportation, and relocation expenses, and issuance of necessary 
regulations pertaining thereto.
    (b) Submission of requests to the Office of Management and Budget 
for apportionment or reapportionment of appropriations, including the 
determination, whenever required, that such apportionment or 
reapportionment indicates the necessity for the submission of a request 
for a deficiency or supplemental estimate, and to make allotments to 
organizational units of the Department of funds made available to the 
Department within the limits of such apportionments or reapportionments 
(31 U.S.C. 665).
    (c) Approving per diem allowances for travel by airplane, train or 
boat outside the continental United States in accordance with paragraph 
1-7.2 of the Federal Travel Regulations (FPMR 101-7).
    (d) Exercising the claims settlement authority under the Federal 
Claims Collection Act of 1966 (31 U.S.C. 952).
    (e) Authorizing payment of actual expense of subsistence (5 U.S.C. 
5702(c)).
    (f) Prescribing regulations providing for premium pay pursuant to 5 
U.S.C. 5541-5550a.
    (g) Settling and authorizing payment of employee claims under the 
Military and Civilian Employees' Claims Act of 1964, as amended (31 
U.S.C. 240-243).
    (h) Submitting requests to the Comptroller General for decisions (31 
U.S.C. 74, 82d) and deciding questions involving the payment of $25 or 
less (Comp. Gen. B-161457, July 14, 1976).
    (i) Making determinations with respect to employment and wages under 
section 3122 of the Federal Insurance Contributions Act (26 U.S.C. 
3122).
    (j) Excluding the Office of Justice Assistance, Research and 
Statistics, supervising and directing the Department's procurement and 
contracting functions and assuring that equal employment opportunity is 
practiced by the Department's contractors and subcontractors and in 
federally assisted programs under the Department's control.
    (k) Designating Contracts Compliance Officers pursuant to Executive 
Order 11246, as amended.
    (l) Making the certificate required with respect to the necessity 
for including illustrations in printing (44 U.S.C. 1104).
    (m) Making the certificates with respect to the necessity of long 
distance telephone calls (31 U.S.C. 680a).
    (n) Making certificates of need for space (68 Stat. 518, 519).
    (o) Exercising, except for the authority conferred in 
Secs. 0.15(b)(1), 0.19(a)(1), 0.137, and 0.138 of this part, the power 
and authority vested in the Attorney General to take final action on 
matters pertaining to the employment, separation, and general 
administration of personnel in General Schedule grade GS-1 through GS-
15, and in wage board positions; classify positions in the Department 
under the General Schedule and wage board systems regardless of grade; 
postaudit and correct any personnel action within the Department;

[[Page 48]]

and inspect at any time any personnel operations of the various 
organizational units of the Department.
    (p) Selecting and assigning employees for training by, in, or 
through non-Government facilities, paying the expenses of such training 
or reimbursing employees therefor, and preparing and submitting the 
required annual report to the Office of Personnel Management (5 U.S.C. 
4103-4118).
    (q) Exercising authority for the temporary employment of experts or 
consultants of organizations thereof, including stenographic reporting 
services (5 U.S.C. 3109(b)).
    (r) Providing assistance in furnishing information to the public 
under the Public Information Section of the Administrative Procedure Act 
(5 U.S.C. 552).
    (s) Representing the Department in its contacts on matters relating 
to administration and management with the Congressional Appropriations 
Committees, Office of Management and Budget, the General Accounting 
Office, the Office of Personnel Management, the General Services 
Administration, the Joint Committee on Printing, the Government Printing 
Office and all other Federal departments and agencies.
    (t) Taking final action, including making all required 
determinations and findings, in connection with the acquisition of real 
property for use by the Department of Justice.
    (u) Perform functions with respect to the operation, maintenance, 
repair, preservation, alteration, furnishing, equipment and custody of 
buildings occupied by the Department of Justice as delegated by the 
Administrator of the General Services Administration.
    (v) Implementing Office of Management and Budget Circular No. A-76, 
``Performance of Commercial Activities''.

[Order No. 543-73, 38 FR 29585, Oct. 26, 1973]

    Editorial Note: For amendments to Sec. 0.76, see the List of CFR 
Sections Affected in the Finding Aids section of this volume.



Sec. 0.77   Operational functions.

    The Assistant Attorney General for Administration shall provide all 
direct administrative support services to the Offices, Boards and 
Divisions of the Department and to the U.S. Marshals Service, except 
where independent administrative authority has been conferred. These 
services shall include the following:
    (a) Planning, directing and coordinating the personnel management 
program; providing personnel services including employment and staffing, 
employee relations, and classification, and including the employment, 
separation and general administration of employees, except attorneys, in 
General Schedule grades GS-15 and below, or equivalent pay levels.
    (b) Formulating policies and plans for efficient administrative 
management and organization and developing and coordinating all 
management studies and reports on the operations of the Offices, 
Divisions and Boards.
    (c) Planning, justifying, and compiling the annual and supplemental 
budget estimates of the Offices, Divisions and Boards.
    (d) Planning, directing and executing accounting operations for the 
Offices, Divisions and Boards.
    (e) Providing information systems analysis, design, computer 
programming, and systems implementation services consistent with 
Departmental information systems plans, policies and procedures.
    (f) Implementing and administering management programs for the 
creation, organization, maintenance, use, and disposition of Federal 
records, and providing mail and messenger service.
    (g) Implementing and administering programs for procurement, 
personal property, supply, motor vehicle, space management, and 
operations and management of buildings as delegated by the Administrator 
of the General Services Administration.
    (h) Operating and maintaining the Department Library.
    (i) Routing and controlling correspondence, maintaining indices of 
legal cases and matters, replying to correspondence not assignable to a 
division, safeguarding confidential information, attesting to the 
correctness of records, and related matters.
    (j) Accepting service of summonses, complaints, or other papers, 
including, without limitation, subpoenas, directed to the Attorney 
General in his official

[[Page 49]]

capacity, as a representative of the Attorney General, under the Federal 
Rules of Civil and Criminal Procedure or in any suit within the purview 
of subsection (a) of section 208 of the Department of Justice 
Appropriation Act, 1953 (66 Stat. 560 (43 U.S.C. 666(a))).
    (k) Making the certificates required in connection with the payment 
of expenses of collecting evidence: Provided, That each such certificate 
shall be approved by the Attorney General.
    (l) Taking final action, including making all required 
determinations and findings, in connection with negotiated purchases and 
contracts as provided in 41 U.S.C. 252(c) (1) through (11), (14), (15) 
except that the authority provided in 41 U.S.C. 252(c)(11) shall be 
limited not to exceed an expenditure of $25,000 per contract and shall 
not be further delegated.
    (m) Serving as Contracting Officer for the Offices, Boards and 
Divisions, with authority of redelegation to the Deputy Assistant 
Attorney General, Office of Personnel and Administration, Justice 
Management Division. The authority so delegated includes the authority 
of redelegation to subordinates and to officials within the Offices, 
Boards and Divisions.
    (n) Authorizing payment of extraordinary expenses incurred by 
ministerial officers of the United States in executing acts of Congress 
(28 U.S.C. 1929).
    (o) Representing the Attorney General with the Secretary of State in 
arranging for reimbursement by foreign governments of expenses incurred 
in extradition cases, and certifying to the Secretary the amounts to be 
paid to the United States as reimbursement (18 U.S.C. 3195).

[Order No. 565-74, 39 FR 15876, May 6, 1974, as amended by Order No. 
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 722-77, 42 FR 25499, May 
18, 1977; Order No. 960-81, 46 FR 52347, Oct. 27, 1981; Order No. 996-
83, 48 FR 7171, Feb. 18, 1983; Order No. 1001-83, 48 FR 9524, Mar. 7, 
1983; Order No. 1977-95, 60 FR 36711, July 18, 1995]



Sec. 0.78  Implementation of financial disclosure requirements.

    The Assistant Attorney General for Administration shall serve as the 
designated agency ethics official under title II of the Ethics in 
Government Act of 1978, 92 Stat. 1836, for purposes of administering the 
public and confidential financial disclosure programs applicable to 
officers and employees of the Department of Justice. His duties shall 
include the following:
    (a) Providing necessary report forms and other information to 
officers and employees of the Department;
    (b) Developing and maintaining a list of positions covered by the 
public and confidential financial reporting requirements;
    (c) Monitoring compliance by department officers and employees with 
applicable requirements for filing and review of financial disclosure 
reports;
    (d) Providing for retention of reports and transmittal, where 
necessary, of copies of reports to the Director of the Office of 
Government Ethics;
    (e) Establishing procedures for public access to reports filed under 
title II of the Ethics in Government Act of 1978;
    (f) Performing such other functions as may be necessary for the 
effective implementation of title II of the Ethics in Government Act.

[Order No. 832-79, 44 FR 29891, May 23, 1979, as amended by Order No. 
960-81, 46 FR 52347, Oct. 27, 1981]



Sec. 0.79   Redelegation of authority.

    The Assistant Attorney General for Administration is authorized to 
redelegate to any Department official any of the power or authority 
vested in him by this subpart O. Existing redelegations by the Assistant 
Attorney General for Administration shall continue in force and effect 
until modified or revoked.

[Order No. 543-73, 38 FR 29585, Oct. 26, 1973. Redesignated by Order No. 
565-74, 39 FR 15876, May 6, 1974, and further redesignated by Order No. 
832-79, 44 FR 29891, May 23, 1979]



               Subpart P--Federal Bureau of Investigation

    Cross Reference: For regulations pertaining to the Federal Bureau of 
Investigation, see part 3 of this chapter.



Sec. 0.85   General functions.

    The Director of the Federal Bureau of Investigation shall:
    (a) Investigate violations of the laws, including the criminal drug 
laws, of

[[Page 50]]

the United States and collect evidence in cases in which the United 
States is or may be a party in interest, except in cases in which such 
responsibility is by statute or otherwise specifically assigned to 
another investigative agency. The Director's authority to investigate 
violations of and collect evidence in cases involving the criminal drug 
laws of the United States is concurrent with such authority of the 
Administrator of the Drug Enforcement Administration under Sec. 0.100 of 
this part. In investigating violations of such laws and in collecting 
evidence in such cases, the Director may exercise so much of the 
authority vested in the Attorney General by sections 1 and 2 of 
Reorganization Plan No. 1 of 1968, section 1 of Reorganization Plan No. 
2 of 1973 and the Comprehensive Drug Abuse Prevention and Control Act of 
1970, as amended, as he determines is necessary. He may also release FBI 
information on the same terms and for the same purposes that the 
Administrator of the Drug Enforcement Administration may disclose DEA 
information under Sec. 0.103 of this part. The Director and his 
authorized delegates may seize, forfeit and remit or mitigate the 
forfeiture of property in accordance with 21 U.S.C. 881, 21 CFR 1316.71 
through 1316.81, and 28 CFR 9.1 through 9.7.
    (b) Conduct the acquisition, collection, exchange, classification 
and preservation of fingerprint cards and identification records from 
criminal justice and other governmental agencies, including fingerprint 
cards voluntarily submitted by individuals for personal identification 
purposes; provide expert testimony in Federal, State and local courts as 
to fingerprint examinations; and provide fingerprint training and 
provide identification assistance in disasters and for other 
humanitarian purposes.
    (c) Conduct personnel investigations requisite to the work of the 
Department of Justice and whenever required by statute or otherwise.
    (d) Carry out the Presidential directive of September 6, 1939, as 
reaffirmed by Presidential directives of January 8, 1943, July 24, 1950, 
and December 15, 1953, designating the Federal Bureau of Investigation 
to take charge of investigative work in matters relating to espionage, 
sabotage, subversive activities, and related matters.
    (e) Establish and conduct law enforcement training programs to 
provide training for State and local law enforcement personnel; operate 
the Federal Bureau of Investigation National Academy; develop new 
approaches, techniques, systems, equipment, and devices to improve and 
strengthen law enforcement and assist in conducting State and local 
training programs, pursuant to section 404 of the Omnibus Crime Control 
and Safe Streets Act of 1968, 82 Stat. 204.
    (f) Operate a central clearinghouse for police statistics under the 
Uniform Crime Reporting Program, and a computerized nationwide index of 
law enforcement information under the National Crime Information Center.
    (g) Operate the Federal Bureau of Investigation Laboratory to serve 
not only the Federal Bureau of Investigation, but also to provide, 
without cost, technical and scientific assistance, including expert 
testimony in Federal or local courts, for all duly constituted law 
enforcement agencies, other organizational units of the Department of 
Justice, and other Federal agencies, which may desire to avail 
themselves of the service. As provided for in procedures agreed upon 
between the Secretary of State and the Attorney General, the services of 
the Federal Bureau of Investigation Laboratory may also be made 
available to foreign law enforcement agencies and courts.
    (h) Make recommendations to the Office of Personnel Management in 
connection with applications for retirement under 5 U.S.C. 8336(c).
    (i) Investigate alleged fraudulent conduct in connection with 
operations of the Department of Housing and Urban Development and other 
alleged violations of the criminal provisions of the National Housing 
Act, including 18 U.S.C. 1010.
    (j) Exercise the power and authority vested in the Attorney General 
to approve and conduct exchanges of identification records with 
officials of federally chartered or insured banking institutions to 
promote or maintain the security of those institutions and, if 
authorized by State statute and approved by the Attorney General, to 
officials of

[[Page 51]]

State and local governments for purposes of employment and licensing; 
and exercise the power and authority vested in the Attorney General by 
15 U.S.C. 78q(f)(2) and 7 U.S.C. 12a, to approve and conduct exchanges 
of identification records with certain segments of the securities 
industry and the Commodity Futures Trading Commission, respectively.
    (k) Payment of awards (including those over $10,000) under 28 U.S.C. 
524(c)(2), and purchase of evidence (including the authority to pay more 
than $100,000) under 28 U.S.C. 524(c)(1)(F).
    (l) Exercise Lead Agency responsibility in investigating all crimes 
for which it has primary or concurrent jurisdiction and which involve 
terrorist activities or acts in preparation of terrorist activities 
within the statutory jurisdiction of the United States. Within the 
United States, this would include the collection, coordination, 
analysis, management and dissemination of intelligence and criminal 
information as appropriate. If another Federal agency identifies an 
individual who is engaged in terrorist activities or in acts in 
preparation of terrorist activities, that agency is requested to 
promptly notify the FBI. Terrorism includes the unlawful use of force 
and violence against persons or property to intimidate or coerce a 
government, the civilian population, or any segment thereof, in 
furtherance of political or social objectives.
    (m) Carry out the Department's responsibilities under the Hate Crime 
Statistics Act.
    (n) Exercise the authority vested in the Attorney General under 
section 528(a), Public Law 101-509, to accept from federal departments 
and agencies the services of law enforcement personnel to assist the 
Department of Justice in the investigation and prosecution of fraud or 
other criminal or unlawful activity in or against any federally insured 
financial institution or the Resolution Trust Corporation, and to 
coordinate the activities of such law enforcement personnel in the 
conduct of such investigations and prosecutions.
    (o) Carry out the responsibilities conferred upon the Attorney 
General under the Communications Assistance for Law Enforcement Act, 
Title I of Pub. L. 103-414 (108 Stat. 4279), subject to the general 
supervision and direction of the Attorney General.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969]

    Editorial Note: For Federal Register citations affecting Sec. 0.85, 
see the List of Sections Affected in the Finding Aids section of this 
volume.



Sec. 0.85a  Criminal justice policy coordination.

    The Federal Bureau of Investigation shall report to the Attorney 
General on all its activities.

[Order No. 960-81, 46 FR 52347, Oct. 27, 1981]



Sec. 0.86  Seizure of gambling devices.

    The Director, Associate Director, Assistants to the Director, 
Executive Assistant Directors, Assistant Directors, inspectors and 
agents of the Federal Bureau of Investigation are authorized to exercise 
the power and authority vested in the Attorney General to make seizures 
of gambling devices (18 U.S.C. 1955(d), 15 U.S.C. 1171 et seq.) and wire 
or oral communication intercepting devices (18 U.S.C. 2513).

[Order No. 960-81, 46 FR 52347, Oct. 27, 1981]



Sec. 0.87   Representation on committee for visit-exchange.

    The Director of the Federal Bureau of Investigation shall be a 
member of the committee which represents the Department of Justice in 
the development and implementation of plans for exchanging visits 
between the Iron Curtain countries and the United States and shall have 
authority to designate an alternate to serve on such committee.



Sec. 0.88   Certificates for expenses of unforeseen emergencies.

    The Director of the Federal Bureau of Investigation is authorized to 
exercise the power and authority vested in the Attorney General by 28 
U.S.C. 537, to make certificates with respect to expenses of unforeseen 
emergencies of a confidential character: Provided, That each such 
certificate made by the Director of the Federal Bureau of Investigation 
shall be approved by the Attorney General.

[[Page 52]]



Sec. 0.89   Authority to seize arms and munitions of war.

    The Director of the Federal Bureau of Investigation is authorized to 
exercise the authority conferred upon the Attorney General by section 1 
of E.O. 10863 of February 18, 1960 (25 FR 1507), relating to the seizure 
of arms and munitions of war, and other articles, pursuant to section 1 
of title VI of the act of June 15, 1917, 40 Stat. 223, as amended by 
section 1 of the Act of August 13, 1953, 67 Stat. 577 (22 U.S.C. 401).



Sec. 0.89a   Delegations respecting claims against the FBI.

    (a) The Director of the Federal Bureau of Investigation is 
authorized to exercise the power and authority vested in the Attorney 
General under 28 U.S.C. 2672 to consider, ascertain, adjust, determine, 
and settle any claim thereunder not exceeding $10,000 in any one case 
caused by the negligent or wrongful act or omission of any employee of 
the Federal Bureau of Investigation.
    (b) The Director of the Federal Bureau of Investigation is further 
authorized to exercise the power and authority vested in the Attorney 
General under the Act of December 7, 1989, Public Law 101-203, 103 Stat. 
1805 (31 U.S.C. 3724) with regard to claims thereunder not exceeding 
$50,000 in any one case.
    (c) The Director of the Federal Bureau of Investigation is 
authorized to redelegate to the General Counsel of the FBI or his 
designee within the Office of the General Counsel or to the primary 
legal advisors of the FBI field offices, any of the authority, 
functions, or duties vested in him by paragraphs (a) and (b) of this 
section. This authority shall not be further redelegated.

[Order No. 884-80, 45 FR 22023, Apr. 3, 1980, as amended by Order No. 
1417-90, 55 FR 27808, July 6, 1990; Order No. 1551-91, 56 FR 64192, Dec. 
9, 1991; Order No. 1904-94, 59 FR 41242, Aug. 11, 1994]



      Subpart P-1--Office of Justice Programs and Related Agencies

    Source: Order No. 1111-85, 50 FR 43385, Oct. 25, 1985, unless 
otherwise noted.



Sec. 0.90  Office of Justice Programs.

    The Office of Justice Programs is headed by an Assistant Attorney 
General appointed by the President. Under the general authority of the 
Attorney General, the Assistant Attorney General maintains liaison with 
the provides information to Federal, State, local, and private agencies 
and organizations on criminal justice matters, and provides staff 
support to and coordinates the activities of the National Institute of 
Justice, the Bureau of Justice Statistics, the Office of Juvenile 
Justice and Delinquency Prevention, and the Bureau of Justice 
Assistance. The Office includes the Office for Victims of Crime.



Sec. 0.91  Office for Victims of Crime.

    The Office for Victims of Crime is headed by a Director appointed by 
the Assistant Attorney General, Office of Justice Programs. Under a 
delegation by the Attorney General (DOJ Order No. 1079-84, Dec. 14, 
1984), the Assistant Attorney General and the Director are responsible 
for providing national leadership to encourage improved treatment of 
victims by implementing the recommendations of the President's Task 
Force on Victims of Crime and the Attorney General's Task Force on 
Family Violence, and by administering the Crime Victims Fund and the 
Federal Crime Victim Assistance Program, established under the Victims 
of Crime Act of 1984, title II, chapter XIV, of Public Law 98-473, 42 
U.S.C. 10601 et seq., 98 Stat. 2170 (Oct. 12, 1984).



Sec. 0.92  National Institute of Justice.

    The National Institute of Justice is headed by a Director appointed 
by the President. Under the general authority of the Attorney General 
and reporting through the Assistant Attorney General, Office of Justice 
Programs, the Director performs functions and administers programs, 
including provision of financial assistance, under 42 U.S.C. 3721-3723 
to support basic and applied research into justice issues.



Sec. 0.93  Bureau of Justice Statistics.

    The Bureau of Justice Statistics is headed by a Director appointed 
by the President. Under the general authority

[[Page 53]]

of the Attorney General and reporting through the Assistant Attorney 
General, Office of Justice Programs, the Director performs functions and 
administers programs, including provision of financial assistance, under 
42 U.S.C. 3731-3734, to provide a variety of statistical services for 
the criminal justice community.



Sec. 0.94  Office of Juvenile Justice and Delinquency Prevention.

    The Office of Juvenile Justice and Delinquency Prevention is headed 
by an Administrator appointed by the President. Under the general 
authority of the Attorney General and reporting through the Assistant 
Attorney General, Office of Justice Programs, the Administrator performs 
functions and administers programs, including provision of financial 
assistance, under 42 U.S.C. 5601 et seq., relating to juvenile 
delinquency, the improvement of juvenile justice systems and missing 
children.



Sec. 0.94-1  Bureau of Justice Assistance.

    (a) The Bureau of Justice Assistance is headed by a Director 
appointed by the Attorney General. Under the general authority of the 
Attorney General and reporting through the Assistant Attorney General, 
Office of Justice Programs, the Director performs functions and 
administers programs, including provision of financial assistance, under 
42 U.S.C. 3741-3748; 3761-3764; and 3769, relating to the administration 
of State and local criminal justice systems. The Director also 
administers the Public Safety Officers' Death Benefits Program under 42 
U.S.C. 3796, et seq..
    (b) Subject to the authority and direction of the Attorney General, 
the Director of the Bureau of Justice Assistance is authorized to 
exercise the power and authority vested in the Attorney General by 
Executive Order No. 11755 of December 29, 1973, 39 FR 779, with respect 
to certification and revoking certification of work-release laws or 
regulations.

[Order No. 1111-85, 50 FR 43385, Oct. 25, 1985; Order No. 1145-86, 51 FR 
29464, Aug. 18, 1986]



                      Subpart Q--Bureau of Prisons

    Cross Reference: For regulations pertaining to the Bureau of 
Prisons, see parts 6 and 7 of this chapter.



Sec. 0.95   General functions.

    The Director of the Bureau of Prisons shall direct all activities of 
the Bureau of Prisons including:
    (a) Management and regulation of all Federal penal and correctional 
institutions (except military or naval institutions), and prison 
commissaries.
    (b) Provision of suitable quarters for, and safekeeping, care, and 
subsistence of, all persons charged with or convicted of offenses 
against the United States or held as witnesses or otherwise.
    (c) Provision for the protection, instruction, and discipline of all 
persons charged with or convicted of offenses against the United States.
    (d) Classification, commitment, control, or treatment of persons 
committed to the custody of the Attorney General.
    (e) Payment of rewards with respect to escaped Federal prisoners (18 
U.S.C. 3059).
    (f) Certification with respect to the insanity or mental 
incompetence of a prisoner whose sentence is about to expire pursuant to 
section 4247 of title 18 of the U.S. Code.
    (g) Entering into contracts with State or territorial officials for 
the custody, care, subsistence, education, treatment, and training of 
State or territorial prisoners, upon certification with respect to the 
availability of proper and adequate treatment facilities and personnel, 
pursuant to section 5003 of title 18 of the U.S. Code.
    (h) Conduct of studies and the preparation and submission of reports 
and recommendations to committing courts respecting disposition of cases 
in which defendants have been committed for such purposes pursuant to 18 
U.S.C. 4205(c).
    (i) Conduct and prepare, or cause to be conducted and prepared, 
studies and submit reports to the court and the attorneys with respect 
to disposition of cases in which juveniles have been committed, pursuant 
to 18 U.S.C. 5037, and to contract with public or private

[[Page 54]]

agencies or individuals or community-based facilities for the 
observation and study and the custody and care of juveniles, pursuant to 
18 U.S.C. 5040.
    (j) Observation, conduct of studies, and preparation of reports in 
cases in which youth offenders have been committed by the courts for 
such purposes pursuant to section 5010(e) of title 18 of the United 
States Code.
    (k) Conduct of examinations to determine whether an offender is an 
addict and is likely to be rehabilitated through treatment, as well as 
the preparation and submission of reports to committing courts, pursuant 
to section 4252 of title 18 of the United States Code.
    (l) Transmittal of reports of boards of examiners and certificates 
to clerks of the district courts pursuant to section 4245 of title 18 of 
the U.S. Code.
    (m) Providing technical assistance to State and local governments in 
the improvement of their correctional systems (18 U.S.C. 4042).

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 579-74, 39 FR 37771, Oct. 
24, 1974; Order No. 960-81, 46 FR 52348, Oct. 27, 1981]



Sec. 0.96  Delegations.

    The Director of the Bureau of Prisons is authorized to exercise or 
perform any of the authority, functions, or duties conferred or imposed 
upon the Attorney General by any law relating to the commitment, 
control, or treatment of persons (including insane prisoners and 
juvenile delinquents) charged with or convicted of offenses against the 
United States, including the taking of final action in the following-
described matters:
    (a) Requesting the detail of Public Health Service officers for the 
purpose of furnishing services to Federal penal and correctional 
institutions (18 U.S.C. 4005).
    (b) Consideration, determination, adjustment, and payment of claims 
in accordance with 31 U.S.C. 3722.
    (c) Designating places of imprisonment or confinement where the 
sentences of prisoners shall be served and ordering transfers from one 
institution to another, whether maintained by the Federal Government or 
otherwise, pursuant to 18 U.S.C. 4082 as it existed before the enactment 
of Pub. L. 98-473 (applicable to offenses committed prior to November 1, 
1987).
    (d) Extending the limits of the place of confinement of prisoners 
for the purposes specified, and within the limits established, by 18 
U.S.C. 4082(c) as it existed before the enactment of Public Law 98-473, 
and otherwise performing the functions of the Attorney General under 
that section (applicable to offenses committed prior to November 1, 
1987).
    (e) Designation of agents for the transportation of prisoners (18 
U.S.C. 4008).
    (f) Accepting gifts or bequests of money for credit to the 
``Commissary Funds, Federal Prisons'' (31 U.S.C. 1321 and 18 U.S.C. 
4043).
    (g) Prescribing regulations for the use of surplus funds in 
``Commissary Funds, Federal Prisons'' to provide advances not in excess 
of $150 to prisoners at the time of their release pursuant to 18 U.S.C. 
4284 as it existed before the enactment of Public Law 98-473 (applicable 
to offenses committed prior to November 1, 1987).
    (h) Allowance, forfeiture, and restoration of all good time pursuant 
to 18 U.S.C. 4161, 4162, 4165, and 4166 as those sections existed before 
the enactment of Public Law 98-473 (applicable to offenses committed 
prior to November 1, 1987).
    (i) Release of prisoners held solely for nonpayment of fine as 
provided in 18 U.S.C. 3569 as it existed before the enactment of Public 
Law 98-473 (applicable to offenses committed prior to November 1, 1987).
    (j) Furnishing transportation, clothing, and payments to released 
prisoners pursuant to 18 U.S.C. 4281 as it existed before the enactment 
of Public Law 98-473 (applicable to offenses committed prior to November 
1, 1987).
    (k) Performing the functions of the Attorney General under the 
provisions of 18 U.S.C. chapter 313, Offenders with Mental Disease or 
Defect (18 U.S.C. 4241-4247).
    (l) Settlement of claims arising under the Federal Tort Claims Act 
as provided in 28 CFR 0.172.

[[Page 55]]

    (m) Entering into reciprocal agreements with fire organizations for 
mutual aid and rendering emergency assistance in connection with 
extinguishing fires within the vicinity of a Federal correctional 
facility, as authorized by sections 2 and 3 of the Act of May 27, 1955 
(42 U.S.C. 1856a, 1856b).
    (n) Deciding upon requests by states for temporary transfers of 
custody of inmates for prosecution under Article IV of the Interstate 
Agreement on Detainers (84 Stat. 1399) and pursuant to other available 
procedures; and receiving and reviewing requests by the executive 
authority of states or the District of Columbia for, and authorizing the 
transfer of, inmates pursuant to 18 U.S.C. 4085 as it existed before the 
enactment of Public Law 98-473 (applicable to offenses committed prior 
to November 1, 1987).
    (o) Prescribing rules and regulations applicable to the carrying of 
firearms by Bureau of Prisons officers and employees (18 U.S.C. 3050).
    (p) Promulgating rules governing the control and management of 
Federal penal and correctional institutions and providing for the 
classification, government, discipline, treatment, care, rehabilitation, 
and reformation of inmates confined therein (18 U.S.C. 4001, 4041, and 
4042).
    (q) Establishing and designating Bureau of Prisons Institutions (18 
U.S.C. 4001, 4042).
    (r) Granting permits to states or public agencies for rights-of-way 
upon lands administered by the Director in accordance with the 
provisions of 43 U.S.C. 931c and 43 U.S.C. 961 (18 U.S.C. 4001, 4041, 
4042, 43 U.S.C. 931c, 961).
    (s) Authority to accept, in accordance with regulations prescribed 
by the Director, any form of devise, bequest, gift or donation of money 
or property for use by the Bureau of Prisons or Federal Prison 
Industries, and authority to take all appropriate steps to secure 
possession of such property, and to sell, assign, transfer, or convey 
such property other than money (18 U.S.C. 4044).
    (t) Authority under the provisions of 18 U.S.C. 4082(b) to provide 
law enforcement representatives with information on Federal prisoners 
who have been convicted of felony offenses and who are confined at a 
residential community treatment center located in the geographical area 
in which the requesting agency has jurisdiction (18 U.S.C. 4082).
    (u) Approving inmate disciplinary and good time regulations (18 
U.S.C. 3624).
    (v) Contracting, for a period not exceeding three years, with the 
proper authorities of any State, Territory, or political subdivision 
thereof, for the imprisonment, subsistence, care, and proper employment 
of persons convicted of offenses against the United States (18 U.S.C. 
4002).

[Order No. 1617-92, 57 FR 38772, Aug. 27, 1992, as amended by Order No. 
1884-94, 59 FR 29717, June 9, 1994]



Sec. 0.96a  Interstate Agreement on Detainers.

    The Director of the Bureau of Prisons is designated as the U.S. 
Officer under Article VII of the Interstate Agreement on Detainers (84 
Stat. 1402).

[Order No. 462-71, 36 FR 12212, June 29, 1971]



Sec. 0.96b  Exchange of prisoners.

    The Director of the Bureau of Prisons and officers of the Bureau of 
Prisons designated by him are authorized to receive custody of offenders 
and to transfer offenders to and from the United States of America under 
a treaty as referred to in Public Law 95-144; to make arrangements with 
the States and to receive offenders from the States for transfer to a 
foreign country; to act as an agent of the United States to receive the 
delivery from a foreign government of any person being transferred to 
the United States under such a treaty; to render to foreign countries 
and to receive from them certifications and reports required under a 
treaty; and to receive custody and carry out the sentence of 
imprisonment of such a transferred offender as required by that statute 
and any such treaty.

[Order No. 758-77, 42 FR 63139, Dec. 15, 1977]



Sec. 0.96c  Cost of incarceration.

    (a) The Attorney General is required to establish and collect a fee 
to cover the cost of one year of incarceration. These provisions apply 
to any person who is convicted in a United States

[[Page 56]]

District Court and committed to the custody of the Attorney General, and 
who begins service of sentence on or after December 27, 1994. For the 
purposes of this subpart, revocation of parole or supervised release 
shall be treated as a separate period of incarceration for which a fee 
may be imposed.
    (b) The fee to cover the costs of incarceration shall be calculated 
by dividing the number representing the obligation encountered in Bureau 
of Prisons facilities (excluding activation costs) by the number of 
inmate-days incurred for the year, and by then multiplying the quotient 
by 365. The resulting figure represents the average cost to the Bureau 
for confining an inmate for one year.
    (c) The Director of the Bureau of Prisons is delegated the authority 
to collect the fee to cover the cost of incarceration from inmates 
committed to the custody of the Attorney General and to promulgate all 
regulations concerning the collection of the fee.
    (d) The Director shall review and determine the amount of the fee 
not less than annually in accordance with the formula set forth in 
paragraph (b) of this section. The Director shall publish each year's 
fee as a Notice in the Federal Register.

[Order No. 1932-94, 59 FR 60558, Nov. 25, 1994]



Sec. 0.97  Redelegation of authority.

    The Director of the Bureau of Prisons is authorized to redelegate to 
any of his subordinates any of the authority, functions or duties vested 
in him by this subpart Q. The Director may make similar delegations to 
any other employee of any Bureau, Board, Office, or Division of the 
Department of Justice with the consent of the head of that Bureau, 
Board, Office, or Division, and after written notification to the 
Attorney General or designee. A redelegation of authority is limited to 
employees of the Department of Justice. Existing redelegations by the 
Director of the Bureau of Prisons shall continue in force and effect 
until modified or revoked.

[Order No. 1150-86, 51 FR 31939, Sept. 8, 1986]



Sec. 0.98   Functions of Commissioner of Federal Prison Industries.

    The Director of the Bureau of Prisons is authorized as ex officio 
Commissioner of Federal Prison Industries and in accordance with the 
policy fixed by its Board of Directors to:
    (a) Exercise jurisdiction over all industrial enterprises in all 
Federal penal and correctional institutions.
    (b) Sponsor vocational training programs in Federal penal and 
correctional institutions.
    (c) Contract for the transfer of property or equipment from the 
District of Columbia for industrial employment and training of prisoners 
confined in a penal or correctional institution of the District of 
Columbia, pursuant to 18 U.S.C. 4122.



Sec. 0.99   Compensation to Federal prisoners.

    The Board of Directors of Federal Prison Industries, or such officer 
of the corporation as the Board may designate, may exercise the 
authority vested in the Attorney General by section 4126 of title 18 of 
the U.S. Code, as amended, to prescribe rules and regulations governing 
the payment of compensation to inmates of Federal penal and correctional 
institutions employed in any industry, or performing outstanding 
services in institutional operations, and to inmates or their dependents 
for injuries suffered in any industry or in any work activity in 
connection with the maintenance of operation of the institution where 
confined.

 Appendix to Subpart Q--Confinement of Persons in District of Columbia 
                        Correctional Institutions

    By virtue of the authority vested in me by the Act of September 1, 
1916, 39 Stat. 711 (D.C. Code section 24-402), by section 11 of the Act 
of July 15, 1932, as added by the Act of June 6, 1940, 54 Stat. 244 
(D.C. Code section 24-425), and by the Act of September 10, 1965 (18 
U.S.C. 4082).
    (a) The Mayor of the District of Columbia or his authorized 
representative is hereby authorized to transfer such prisoners as may be 
in his custody and supervision, by virtue of having been placed in a 
correctional institution of the District of Columbia pursuant to the 
authority of the Attorney General, from such institution to any 
available, suitable, or appropriate institution or facility

[[Page 57]]

(including a residential community treatment center) within the District 
of Columbia, and the Mayor or his authorized representative is further 
authorized to extend the limits of the place of confinement of such 
prisoners for the purposes specified, and within the limits established, 
by the Act of September 10, 1965 (18 U.S.C. 4082).
    (b) The authority conferred by subsection (a) shall not include any 
extension of the limits of confinement for any prisoner serving a 
sentence for a crime of violence and not participating in a furlough 
program as of December 22, 1976, unless such prisoner has served at 
least twelve months, has not been denied parole, without recommendation 
for furlough, at his most recent parole hearing (whether such hearing 
was held before or after extension of the limits of his confinement was 
granted), and
    (1) Is within twelve months of the expiration of his maximum 
sentence, without reduction, or
    (2) Is within twelve months of a date on which he will be eligible 
for parole from confinement, or
    (3) Has served at least ninety percent of his minimum sentence, 
without reduction.

By October 15 of each year, there shall be submitted to the Associate 
Attorney General a report concerning each prisoner serving a sentence 
for a crime of violence whose limits of confinement have been extended 
during the twelve-month period ending the preceding September 30, 
indicating the offense and term for which, and the court by which, the 
prisoner was sentenced with respect to his present confinement; all 
other criminal offenses of which the prisoner has been convicted; the 
date, duration and purpose of each extension of the limits of his 
confinement; all parole board actions with respect to the prisoner; and 
all infractions of the terms of extension, violations of prison rules, 
or criminal offenses with which the prisoner has been officially charged 
since the beginning of his confinement.
    (c) With respect to all other prisoners, the authority conferred by 
subsection (a) may be exercised by an authorized representative 
designated by the Mayor.
    (d) As used in this Order crime of violence means murder, 
manslaughter, rape, kidnapping, robbery, burglary, assault with intent 
to kill, assault with intent to rape, assault with intent to rob or 
extortion involving the threat or use of violence to person.

[Order No. 636-76, 41 FR 3289, Jan. 26, 1976, as amended by Order No. 
676-76, 41 FR 56802, Dec. 30, 1976; Order No. 960-81, 46 FR 52348, Oct. 
27, 1981]



               Subpart R--Drug Enforcement Administration



Sec. 0.100   General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Administrator of the Drug 
Enforcement Administration:
    (a) Functions vested in the Attorney General by sections 1 and 2 of 
Reorganization Plan No. 1 of 1968.
    (b) Functions vested in the Attorney General by the Comprehensive 
Drug Abuse Prevention and Control Act of 1970, as amended. This will 
include functions which may be vested in the Attorney General in 
subsequent amendments to the Comprehensive Drug Abuse Prevention and 
Control Act of 1970, and not otherwise specifically assigned or reserved 
by him.
    (c) Functions vested in the Attorney General by section 1 of 
Reorganization Plan No. 2 of 1973 and not otherwise specifically 
assigned.

[Order No. 520-73, 38 FR 18380, July 10, 1973, as amended by Order No. 
960-81, 46 FR 52348, Oct. 27, 1981; Order No. 1203-87, 52 FR 24447, July 
1, 1987]



Sec. 0.101   Specific functions.

    The Administrator of the Drug Enforcement Administration shall be 
responsible for:
    (a) The development and implementation of a concentrated program 
throughout the Federal Government for the enforcement of Federal drug 
laws and for cooperation with State and local governments in the 
enforcement of their drug abuse laws.
    (b) The development and maintenance of a National Narcotics 
Intelligence System in cooperation with Federal, State, and local 
officials, and the provision of narcotics intelligence to any Federal, 
State, or local official that the Administrator determines has a 
legitimate official need to have access to such intelligence.
    (c) The development and implementation of a procedure to release 
property seized under section 511 of the Controlled Substances Act (21 
U.S.C. 881) to any innocent party having an immediate right to 
possession of the property, when the Administrator, in his discretion, 
determines it is not in

[[Page 58]]

the interests of justice to initiate forfeiture proceedings against the 
property.
    (d) Payment of awards (including those over $10,000) under 28 U.S.C. 
524(c)(2) and purchase of evidence (including the authority to pay more 
than $100,000) under 28 U.S.C. 524(c)(1)(F).

[Order No. 520-73, 38 FR 18380, July 10, 1973, as amended by Order No. 
565-74, 39 FR 15876, May 6, 1974; Order No. 898-80, 45 FR 44267, July 1, 
1980; Order No. 960-81, 46 FR 52348, Oct. 27, 1981; Order No. 1126-86, 
51 FR 7443, Mar. 4, 1986]



Sec. 0.102  Drug enforcement policy coordination.

    The Administrator of the Drug Enforcement Administration shall 
report to the Attorney General, through the Deputy Attorney General or 
the Associate Attorney General, as directed by the Attorney General.

[Order No. 1429-90, 55 FR 28909, July 16, 1990]



Sec. 0.103   Release of information.

    (a) The Administrator of DEA is authorized--
    (1) To release information obtained by DEA and DEA investigative 
reports to Federal, State, and local officials engaged in the 
enforcement of laws related to controlled substances.
    (2) To release information obtained by DEA and DEA investigative 
reports to Federal, State, and local prosecutors, and State licensing 
boards, engaged in the institution and prosecution of cases before 
courts and licensing boards related to controlled substances.
    (3) To authorize the testimony of DEA officials in response to 
subpoenas issued by the prosecution in Federal, State, or local criminal 
cases involving controlled substances.
    (b) Except as provided in paragraph (a) of this section, all other 
production of information or testimony of DEA officials in response to 
subpoenas or demands of courts or other authorities is governed by 
subpart B of part 16 of this chapter. However, it should be recognized 
that subpart B is not intended to restrict the release of 
noninvestigative information and reports as deemed appropriate by the 
Administrator of DEA. For example, it does not inhibit the exchange of 
information between governmental officials concerning the use and abuse 
of controlled substances as provided for by section 503(a)(1) of the 
Controlled Substances Act (21 U.S.C. 873(a)(1)).

[Order No. 520-73, 38 FR 18380, July 10, 1973]



Sec. 0.103a  Delegations respecting claims against the Drug Enforcement Administration.

    (a) The Administrator of DEA is authorized to exercise the power and 
authority vested in the Attorney General under the Act of December 7, 
1989, Public Law 101-203, 103 Stat. 1805 (31 U.S.C. 3724) with regard to 
claims thereunder arising out of the lawful activities of DEA personnel 
in an amount not to exceed $50,000.00 in any one case.
    (b) Notwithstanding the provisions of 28 CFR 0.104, the 
Administrator of DEA is authorized to redelegate the power and authority 
vested in him in paragraph (a) of this section to the Chief Counsel of 
DEA and the Chief Counsel's designee within the Office of Chief Counsel. 
This authority shall not be further redelegated below the Associate 
Chief Counsel level.

[Order No. 1751-93, 58 FR 35371, July 1, 1993]



Sec. 0.104  Redelegation of authority.

    The Administrator of the Drug Enforcement Administration is 
authorized to redelegate to any of his subordinates or any of the 
officers or employees of the Immigration and Naturalization Service any 
of the powers and functions vested in him by this subpart R.

[Order 1146-86, 51 FR 30485, Aug. 27, 1986]

            Appendix to Subpart R--Redelegation of Functions

    Section 1. Scope of authority. The authority delegated by this order 
is applicable to all officers and employees of the Drug Enforcement 
Administration (DEA) and Federal Bureau of Investigation (FBI).
    Sec. 2. Supervisors. All Special Agents-in-Charge of the DEA and the 
FBI are authorized to conduct enforcement hearings under 21 U.S.C. 883, 
and to take custody of seized property under 21 U.S.C. 881. All Special 
Agents-in-Charge of the DEA and the FBI

[[Page 59]]

are authorized to release information pursuant to 28 CFR 0.103(a) (1) 
and (2) which is obtained by the DEA and the FBI, and to authorize the 
testimony of DEA and FBI officials in response to prosecution subpoenas 
under 28 CFR 0.103(a)(3). All DEA Special Agents-in-Charge are 
authorized to take custody of, and make disposition of, controlled 
substances seized pursuant to 21 U.S.C. 824(g).
    Sec. 3. Enforcement officers. (a) All DEA criminal investigators 
(series 1811 under Office of Personnel Management regulations) and 
special agents of the FBI are authorized to exercise all of the powers 
of enforcement personnel granted by 21 U.S.C. 876, 878, and 879; to 
serve subpoenas, administer oaths, examine witnesses, and receive 
evidence under 21 U.S.C. 875; to execute administrative inspection 
warrants under 21 U.S.C. 880; and to seize property under 21 U.S.C. 881 
and 21 CFR 1316.71 et seq.
    (b) All DEA Diversion Investigators (series 1801 under Office of 
Personnel Management regulations) are authorized to administer oaths and 
serve subpoenas under 21 U.S.C. 875 and 876; to conduct administrative 
inspections and execute administrative inspection warrants under 21 
U.S.C. 878(2) and 880; to seize property incident to compliance and 
registration inspections and investigations under 21 U.S.C. 881; and to 
seize or place controlled substances under seal pursuant to 21 U.S.C. 
824.
    Sec. 4. Issuance of subpoenas. (a) The Chief Inspector of the DEA; 
the Deputy Chief Inspector and Associate Deputy Chief Inspector of the 
Office of Professional Responsibility of the DEA; all Special Agents-in-
Charge of the DEA and the FBI; DEA Inspectors assigned to the Inspection 
Division; DEA Associate Special Agents-in-Charge; DEA and FBI Assistant 
Special Agents-in-Charge; DEA Resident Agents-in-Charge; DEA Diversion 
Program Managers; and FBI Supervisory Senior Resident Agents are 
authorized to sign and issue subpoenas with respect to controlled 
substances, listed chemicals, tableting machines and/or encapsulating 
machines under 21 U.S.C. 875 and 876 in regard to matters within their 
respective jurisdictions.
    (b) The Administrative Law Judge of DEA is authorized to sign and 
issue subpoenas to compel the attendance of witnesses and the production 
of documents and materials to the extent necessary to conduct 
administrative hearings pending before him.
    Sec. 5. Legal functions. The Chief Counsel of the DEA is authorized 
to execute any certification required to authenticate any document 
pursuant to Sec. 0.146 of title 28, Code of Federal Regulations; to 
adjust, determine, compromise, and settle any claims involving the Drug 
Enforcement Administration under 28 U.S.C. 2672, relating to tort claims 
where the amount of the proposed adjustment, compromise, settlement or 
award does not exceed $2,500; to formulate and coordinate the 
proceedings relating to the conduct of hearings under 21 U.S.C. 875, 
including the signing and issuance of subpoenas, examining of witnesses 
and receiving evidence; to adjust, determine, compromise, and settle any 
tort claims when such claims arise in foreign countries in connection 
with Drug Enforcement Administration operations abroad, and to conduct 
enforcement hearings under 21 U.S.C. 883. The Forfeiture Counsel of the 
DEA is authorized to exercise all necessary functions with respect to 
decisions on petitions under 19 U.S.C. 1618 for remission or mitigation 
of forfeitures incurred under 21 U.S.C. 881.
    Sec. 6. Import and export permits. The Deputy Assistant 
Administrator of the DEA Office of Diversion Control is authorized to 
perform all and any functions with respect to the issuance of 
importation and exportation permits for controlled substances under 21 
U.S.C. 952 and 953, and all functions in regard to transshipments and 
intransit shipments of controlled substances under 21 U.S.C. 954.
    Sec. 7. Promulgation of regulations. The Deputy Assistant 
Administrator of the DEA Office of Diversion Control is authorized to 
exercise all necessary functions with respect to the promulgation and 
implementation of the following regulations published in chapter II, 
title 21, Code of Federal Regulations:
    (a) Part 1301, incident to the registration of manufacturers, 
distributors, and dispensers of controlled substances, except that final 
orders in connection with suspension, denial or revocation of 
registration shall be made by the Deputy Administrator of DEA.
    (b) Part 1302 relating to labelling and packaging requirements for 
controlled substances.
    (c) Part 1304 relating to records and reports of registrants.
    (d) Part 1305 relating to order forms.
    (e) Part 1306 relating to prescriptions, except provisions relating 
to dispensing of narcotic drugs for maintenance purposes.
    (f) Part 1307, title 21, Code of Federal Regulations, relating to 
miscellaneous provisions, except Sec. 1307.31 concerning special exempt 
persons.
    (g) The following sections of part 1308: Secs. 1308.21 and 1308.22 
relating to excluded nonnarcotic substances; Secs. 1308.23 and 1308.24 
relating to exempt chemical preparations; Secs. 1308.25 and 1308.26 
relating to excluded veterinary anabolic steroid implant products; 
Secs. 1308.31 and 1308.32 relating to exempted prescription products; 
and Secs. 1308.33 and 1308.34 relating to exempt anabolic steroid 
products, except that any final order following a contested proposed 
rulemaking shall be issued by the Deputy Administrator of DEA.
    (h) Part 1309, incident to the registration of manufacturers, 
distributors, importers

[[Page 60]]

and exporters of List I chemicals, except that final orders in 
connection with suspension, denial or revocation of registration shall 
be made by the Deputy Administrator of DEA.
    (i) Part 1310, relating to records, reports and identification of 
parties to transactions in listed chemicals and certain machinery, but 
not including the authority to add and delete listed chemicals pursuant 
to 21 CFR 1310.02.
    (j) Part 1311 relating to registration of importers and exporters of 
controlled substances, except that final orders in connection with 
suspension, denial or revocation of registration shall be made by the 
Deputy Administrator of DEA.
    (k) Part 1312 relating to importation and exportation of controlled 
substances, except that all final orders following a contested proposed 
rulemaking regarding the denial of an application for an import, export 
or transshipment permit shall be made by the Deputy Administrator of 
DEA.
    (l) Part 1313, relating to the importation and exportation of 
precursors and essential chemicals, but not including the authority to 
suspend shipments under 21 CFR 1313.41.
    Sec. 8. Financial functions. The Controller of the DEA is authorized 
to settle any employee claims filed under the Military Personnel and 
Civilian Employees' Claims Act in an amount not to exceed $25,000.
    Sec. 9. Chemical Diversion Act functions. The Chief of Operations of 
the DEA, Operations Division, is authorized to furnish, or cause to be 
furnished, descriptions of persons with whom regulated transactions may 
not be completed without prior approval of the DEA; to approve such 
transactions pursuant to 21 U.S.C. 830(b) and 21 CFR 1310.05(b); and to 
approve or disapprove regular customer or regular importer status under 
21 U.S.C. 971 and 21 CFR 1313.15 and 1313.24.
    Sec. 10. Deputization of State and local law enforcement officers. 
The Deputy Assistant Administrator for Investigative Support is 
authorized to exercise all necessary functions with respect to the 
deputization of state and local law enforcement officers as Task Force 
Officers of DEA pursuant to 21 U.S.C. 878(a).
    Sec. 11. Cross-Designation of Federal Law Enforcement Officers. The 
Deputy Assistant Administrator for Investigative Support is authorized 
to exercise all necessary functions with respect to the cross-
designation of Federal law enforcement officers to undertake title 21 
drug investigations under the supervision of DEA pursuant to 21 U.S.C. 
873(a).
    Sec. 12. All other functions. The Deputy Administrator is authorized 
to exercise all necessary functions under 21 CFR parts 1300 through 
1316, except those functions otherwise delegated within this subpart. 
This will include functions which may be vested in the Administrator in 
subsequent amendments to 21 CFR parts 1300 through 1316 and not 
otherwise specifically assigned or reserved by him.

[47 FR 43370, Oct. 1, 1982, as amended at 49 FR 41247, Oct. 22, 1984; 50 
FR 8607, Mar. 4, 1985; 50 FR 28769, July 16, 1985; 54 FR 50739, Dec. 11, 
1989; 55 FR 1583, Jan. 17, 1990; 55 FR 20456, May 17, 1990; 57 FR 7877, 
Mar. 5, 1992; 59 FR 23637, May 6, 1994; 59 FR 38121, July 27, 1994; 60 
FR 46019, Sept. 5, 1995; 61 FR 46720, Sept. 5, 1996; 62 FR 32032, June 
12, 1997]



            Subpart S--Immigration and Naturalization Service



Sec. 0.105   General functions.

    The Commissioner of the Immigration and Naturalization Service 
shall:
    (a) Subject to limitations contained in section 103 of the 
Immigration and Nationality Act (8 U.S.C. 1103) and excepting the 
authority delegated to the Executive Office for Immigration Review, the 
Board of Immigration Appeals, the Office of the Chief Immigration Judge, 
Immigration Judges, and the Office of the Chief Administrative Hearing 
Officer, administer and enforce the Immigration and Nationality Act and 
all other laws relating to immigration (including but not limited to 
admission, exclusion, and deportation), naturalization, and nationality. 
Nothing in this paragraph shall be construed to authorize the 
Commissioner of Immigration and Naturalization to supervise the 
litigation of or to approve the filing of records on review, appeals, or 
petitions for writs of certiorari or to intervene or have independent 
representation in cases under the immigration and nationality laws 
except as provided in paragraph (e) of this section.
    (b) For the purposes of paragraph (a) of this section, and as 
limited therein, exercise or perform any of the authority, functions, or 
duties conferred or imposed upon the Attorney General by the laws 
mentioned in that paragraph, including the authority to issue 
regulations.
    (c) Investigate alleged violations of the immigration and 
nationality laws, and make recommendations for prosecutions when deemed 
advisable.
    (d) Patrol the borders of the United States to prevent the entry of 
aliens

[[Page 61]]

into the United States in violation of law.
    (e) Supervise naturalization work in the specific courts designated 
by section 310 of the Immigration and Nationality Act (8 U.S.C. 1421) to 
have jurisdiction in such matters, including the requiring of 
accountings from the clerks of such courts for naturalization fees 
collected, investigation through field officers of the qualifications of 
citizenship applicants, and representation of the Government at all 
court hearings.
    (f) Cooperate with the public schools in providing citizenship 
textbooks and other services for the preparation of candidates for 
naturalization.
    (g) Register and fingerprint aliens in the United States, as 
required by section 262 of the Immigration and Nationality Act (8 U.S.C. 
1304).
    (h) Prepare reports on private bills pertaining to immigration 
matters.
    (i) Designate within the Immigration and Naturalization Service a 
certifying officer, and an alternate, to certify copies of documents 
issued by the Commissioner, or his designee, which are required to be 
filed with the Office of the Federal Register.
    (j) Direct officers and employees of the Immigration and 
Naturalization Service, assigned to accompany commercial aircraft, to 
perform the functions of a U.S.C. deputy marshal as a peace officer, in 
particular those set forth in 28 U.S.C. 570 and 18 U.S.C. 3053: (1) 
While aboard any aircraft to which they have been assigned, or (2) while 
within the general vicinity of such aircraft so long as it is within the 
jurisdiction of the United States. Such functions shall be in addition 
to those vested in such officers and employees pursuant to law.
    (k) Insure that a copy of any asylum application filed with INS 
shall be sent simultaneously to the Asylum Policy and Review Unit and to 
the Bureau of Human Rights and Humanitarian Affairs at the Department of 
State.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order 445-
70, 35 FR 19397, Dec. 23, 1970; Order 699-77, 42 FR 15315, Mar. 21, 
1977; Order 960-81, 46 FR 52348, Oct. 27, 1981; Order 998-83, 48 FR 
8056, Feb. 25, 1983; Order 1176-87, 52 FR 11044, Apr. 7, 1987; Order 
1237-87, 52 FR 44971, Nov. 24, 1987; Order 1245-87, 52 FR 48998, Dec. 
29, 1987]



Sec. 0.106   Certificates for expenses of unforeseen emergencies.

    The Commissioner of Immigration and Naturalization is authorized to 
exercise the power and authority vested in the Attorney General by 
section 6 of the act of July 28, 1950, 64 Stat. 380 (8 U.S.C. 1555), to 
make certificates with respect to expenses of unforeseen emergencies of 
a confidential character: Provided, That each such certificate made by 
the Commissioner of Immigration and Naturalization shall be approved by 
the Attorney General.



Sec. 0.107   Representation on committee for visit-exchange.

    The Commissioner of Immigration and Naturalization shall be a member 
of the committee which represents the Department of Justice in the 
development and implementation of plans for exchanging visits between 
the Iron Curtain countries and the United States and shall have 
authority to designate an alternate to serve on such committee.



Sec. 0.108  Redelegation of authority.

    The Commissioner of the Immigration and Naturalization Services may 
redelegate to any employee of the Service or the Department of Justice 
any of the powers, privileges, or duties conferred or imposed on the 
Commissioner by Sec. 0.105. The Commissioner is authorized to confer or 
impose upon any employee of the United States, with the consent of the 
head of the Department or other independent establishment under whose 
jurisdiction the employee is serving, any of the powers, privileges, or 
duties conferred or imposed on the Commissioner by Sec. 0.105. Existing 
redelegations by the Commissioner shall continue in force and effect 
until modified or revoked.

[Order No. 1150-86, 51 FR 31939, Sept. 8, 1986]



Sec. 0.109   Implementation of the Treaty of Friendship and General Relations Between the United States and Spain.

    The Commissioner of Immigration and Naturalization and immigration 
officers (as defined in 8 CFR 103.1(i)) are hereby designated as 
``competent national authorities'' on the part of the United States 
within the meaning

[[Page 62]]

of Article XXIV of the Treaty of Friendship and General Relations 
Between the United States and Spain (33 Stat. 2105, 2117), and shall 
fulfill the obligations assumed by the United States pursuant to that 
Article in the manner and form prescribed.



Sec. 0.110   Implementation of the Convention Between the United States and Greece.

    The Commissioner of Immigration and Naturalization and immigration 
officers (as defined in 8 CFR 103.1(i)) are hereby designated as ``local 
authorities'' and ``competent officers'' on the part of the United 
States within the meaning of Article XIII of the Convention Between the 
United States and Greece (33 Stat. 2122, 2131), and shall fulfill the 
obligations assumed by the United States pursuant to that Article in the 
manner and form prescribed.



                Subpart T--United States Marshals Service



Sec. 0.111   General functions.

    The Director of the United States Marshals Service shall direct and 
supervise all activities of the U.S. Marshals Service including:
    (a) Execution of Federal arrest warrants pursuant to rule 4 of the 
Federal Rules of Criminal Procedure, Federal parole violator warrants 
pursuant to section 4206 of title 18 U.S. Code, and Federal custodial 
and extradition warrants as directed.
    (b) The service of all civil and criminal process emanating from the 
Federal judicial system including the execution of lawful writs and 
court orders pursuant to section 569(b), title 28, U.S. Code.
    (c) Provisions for the health, safety, and welfare of Government 
witnesses and their families, including the psychological well-being and 
social adjustment of such persons, pursuant to 18 U.S.C. 3521, et seq., 
and issuance of necessary regulations for this purpose on behalf of the 
Attorney General.
    (d) Administration and implementation of courtroom security 
requirements for the Federal judiciary.
    (e) Protection of Federal jurists, court officers, and other 
threatened persons in the interests of justice where criminal 
intimidation impedes the functioning of the Federal judicial process.
    (f) Provision of assistance in the protection of Federal property 
and buildings.
    (g) Direction and supervision of a training school for United States 
Marshals Service personnel.
    (h) Disbursement of appropriated funds to satisfy Government 
obligations incurred in the administration of justice pursuant to 28 
U.S.C. 571.
    (i) Maintenance of custody, management control, and disposal of 
property and money seized or forfeited pursuant to any law enforced or 
administered by the Department of Justice, when the property is seized 
by the U.S. Marshals Service or delivered to the U.S. Marshals Service 
in accordance with regulations; and administer the Department of Justice 
Asset Forfeiture Fund.
    (j) Receipt, processing and transportation of prisoners held in the 
custody of a marshal or transported by the U.S. Marshals Service under 
cooperative or intergovernmental agreements.
    (k) Sustention of custody of Federal prisoners from the time of 
their arrest by a marshal or their remand to a marshal by the court, 
until the prisoner is committed by order of the court to the custody of 
the Attorney General for the service of sentence, otherwise released 
from custody by the court, or returned to the custody of the U.S. Parole 
Commission or the Bureau of Prisons.
    (l) Coordination and direction of the relationship of the offices of 
U.S. Marshals with the other organizational units of the Department of 
Justice.
    (m) Approval of staffing requirements of the offices of U.S. 
Marshals.
    (n) Investigation of alleged improper conduct on the part of U.S. 
Marshals Service personnel.
    (o) Acquisition of adequate and suitable detention space, health 
care and other services and materials required to support prisoners 
under the custody of the U.S. Marshal who are not housed in Federal 
facilities.
    (p) Approval of ``other necessary expenditures in the line of duty'' 
of U.S. Marshals and Deputy U.S. Marshals under 28 U.S.C. 567(3).

[[Page 63]]

    (q) Exercising the power and authority vested in the Attorney 
General under 28 U.S.C. 510 to conduct and investigate fugitive matters, 
domestic and foreign, involving escaped federal prisoners, probation, 
parole, mandatory release, and bond default violators.

[Order No. 516-73, 38 FR 12917, May 17, 1973, as amended by Order No. 
905-80, 45 FR 52145, Aug. 6, 1980; Order No. 960-81, 46 FR 52348, Oct. 
27, 1981; Order No. 1108-85, 50 FR 40197, Oct. 2, 1985; Order No. 1131-
86, 51 FR 15612, Apr. 25, 1986; Order No. 1376-89, 54 FR 47353, Nov. 14, 
1989]



Sec. 0.111a  Temporary prisoner-witness transfers.

    The Director of the United States Marshals Service and officers of 
the United States Marshals Service designated by him are authorized to 
exercise the power and authority vested in the Attorney General under 18 
U.S.C. 3508 to receive custody from foreign authorities of prisoner-
witnesses whose temporary transfer to the United States has been 
requested; to transport such persons in custody from the cooperating 
foreign country to the place in the United States at which the criminal 
proceedings in which they are to testify are pending; to maintain such 
persons in custody while they are in the United States, subject to any 
agreement entered into by the Assistant Attorney General for the 
Criminal Division or his or her delegee with the transferring country 
regarding the terms or conditions of the transfer; and to return such 
persons, in custody, to the foreign country when and in the manner 
designated by the Assistant Attorney General for the Criminal Division 
or his or her delegee. The Director of the United States Marshals 
Service and officers of the United States Marshals Service designated by 
him shall also be authorized to transport, surrender, receive and 
maintain custody of prisoner-witnesses temporarily transferred from or 
to the United States pursuant to a treaty, executive agreement, or other 
legal authority, and accept reimbursement from foreign authorities when 
appropriate.

[Order No. 1913-94, 59 FR 46551, Sept. 9, 1994]



Sec. 0.112  Special deputation.

    The Director, United States Marshals Service, is authorized to 
deputize the following persons to perform the functions of a Deputy U.S. 
Marshal in any district designated by the Director:
    (a) Selected officers or employees of the Department of Justice;
    (b) Selected federal, state, or local law enforcement officers 
whenever the law enforcement needs of the U.S. Marshals Service so 
require;
    (c) Selected employees of private security companies in providing 
courtroom security for the Federal judiciary;
    (d) Other persons designated by the Associate Attorney General 
pursuant to 28 CFR 0.19(a)(3).

All such deputations shall expire on a date certain which shall be 
stated on the face of the deputation.

[Order No. 1047-84, 49 FR 6485, Feb. 22, 1984, as amended at 61 FR 
33657, June 28, 1996]



Sec. 0.113  Redelegation of authority.

    The Director, U.S. Marshals Service, is authorized to redelegate to 
any of his subordinates any of the powers and functions vested in him by 
this subpart, except that the authority to approve ``other necessary 
expenditures in the line of duty'' of U.S. Marshals and Deputy U.S. 
Marshals may not be delegated below the Assistant Director level.

[Order No. 905-80, 45 FR 52145, Aug. 6, 1980]



           Subpart U--Executive Office for Immigration Review

    Source: Order 1237-87, 52 FR 44971, Nov. 24, 1987, unless otherwise 
noted.



Sec. 0.114  Fees for services.

    (a) The United States Marshals Service shall routinely collect fees 
according to the following schedule:
    (1) For process forwarded for service for one U.S. Marshals Service 
Office or suboffice to another--$3.00 per item forwarded;
    (2) For process served by mail--$3.00 per item mailed;
    (3) For process served or executed personally--$40.00 per item 
minimum if served by one U.S. Marshals Service employee, agent, or 
contractor in two

[[Page 64]]

regular office hours (duty hours) or less, or $50.00 per item minimum if 
served by one U.S. Marshals Service employee, agent, or contractor in 
two overtime hours (non-duty hours) or less, plus travel costs and any 
other out-of-pocket expenses. For each additional hour, or portion 
thereof, and/or each additional U.S. Marshals Service employee, agent, 
or contractor--$20.00 per duty hour ($25.00 per non-duty hours) for each 
item served, plus travel costs and any other out-of-pocket expenses. 
Travel costs, including mileage, shall be calculated according to 5 
U.S.C. chapter 57.
    (4) For copies at the request of any party--$.10 per page.
    (5) For keeping and advertisement of property attached--actual 
expenses incurred.
    (b) The United States Marshals Service shall collect the fees 
enumerated in paragraph (a) of this section, where applicable, even when 
process in returned to the court or the party unexecuted, as long as 
service is endeavored.
    (c) Pursuant to 28 U.S.C. 565, the Director of the United States 
Marshals Service is authorized to use funds appropriated for the Service 
to make payments for expenses incurred pursuant to personal services 
contracts and cooperative agreements for the service of summonses on 
complaints, subpoenas, and notices, and for security guards.
    (d) The United States Marshals Service shall collect a commission of 
3 percent of the first $1,000 collected and 1.5 percent on the excess of 
any sum over $1,000, for seizing or levying on property (including 
seizures in admiralty), disposing of such property by sale, setoff, or 
otherwise, and receiving and paying over money, except that the amount 
of commission shall not be less than $100.00 and shall not exceed 
$50,000. The U.S. Marshal's commission shall apply to all judicially 
ordered sales and/or execution sales, including but not limited to all 
private mortgage foreclosure sales. if the property is not disposed of 
by Marshal's sale, the commission shall be set by the court within the 
range established above.

[56 FR 2437, Jan 23, 1991



Sec. 0.115  General functions.

    The Executive Office for Immigration Review shall be headed by a 
Director, who shall be responsible for the general supervision of the 
Board of Immigration Appeals, the Office of the Chief Immigration Judge, 
and the Office of the Chief Administrative Hearing Officer in the 
execution of their duties.
    The Director may redelegate the authority delegated to him by the 
Attorney General to the Chairman of the Board of Immigration Appeals, 
the Office of the Chief Immigration Judge, or the Office of the Chief 
Administrative Hearing Officer.

[Order 1237-87, 52 FR 44971, Nov. 24, 1987; Order 1245-87, 52 FR 48998, 
Dec. 29, 1987]



Sec. 0.116  Board of Immigration Appeals.

    The Board of Immigration Appeals shall consist of a Chairman and 
fourteen other members. The Chairman shall be responsible for providing 
supervision and establishing internal operating procedures of the Board 
in the exercise of its authorities and responsibilities as delineated in 
8 CFR 3.1 through 3.8.

[Order 1237-87, 52 FR 44971, Nov. 24, 1987, as amended by Order 1992-95, 
60 FR 53268, Oct. 13, 1995; Order No. 2062-96, 61 FR 59305, Nov. 22, 
1996]



Sec. 0.117  Office of Chief Immigration Judge.

    The Chief Immigration Judge shall provide general supervision to the 
Immigration Judges in performance of their duties in accordance with the 
Immigration and Nationality Act, 8 U.S.C. 1226 and 1252 and 8 CFR 3.9.



Sec. 0.118  Office of Chief Administrative Hearing Officer.

    The Chief Administrative Hearing Officer shall provide general 
supervision to the Administrative Law Judges in performance of their 
duties in accordance with 8 U.S.C. 1324 A and B.



       Subpart U-1--Office of Community Oriented Policing Services

    Source: Order No. 1948-95, 60 FR 8933, Feb. 16, 1995, unless 
otherwise noted.


[[Page 65]]





Sec. 0.119  Organization.

    The Office of Community Oriented Policing Services shall be headed 
by a Director appointed by the Attorney General. The Director shall 
report to the Attorney General through the Associate Attorney General.



Sec. 0.120  General functions.

    The Director, Office of Community Oriented Policing Services shall:
    (a) Exercise the powers and perform the functions vested in the 
Attorney General by title I and subtitle H of title III of the Violent 
Crime Control and Law Enforcement Act of 1994 (Pub. L. 103-322); and
    (b) Perform such other duties and functions relating to policing and 
law enforcement as may be specially assigned by the Attorney General or 
the Associate Attorney General.



Sec. 0.121  Applicability of existing departmental regulations.

    Unless superseded by regulations promulgated by the Office of 
Community Oriented Policing Services, Departmental regulations set forth 
in part 18 of this title, applicable to grant programs administered 
through the Office of Justice Programs, shall apply with equal force and 
effect to grant programs administered by the Office of Community 
Oriented Policing Services, with references to the Office of Justice 
Programs and its components in such regulations deemed to refer to the 
Office of Community Oriented Policing Services, as appropriate.



               Subpart V--United States Parole Commission

    Source: Order No. 663-76, 41 FR 35184, Aug. 20, 1976, unless 
otherwise noted.

    Cross Reference: For regulations pertaining to the United States 
Parole Commission, see parts 2 and 4 of this chapter.



Sec. 0.124  United States Parole Commission.

    The U.S. Parole Commission is composed of nine Commissioners of whom 
one is designated Chairman. The Commission:
    (a) Has authority, under 18 U.S.C. 4201 et seq., to grant, modify, 
or revoke paroles of eligible U.S. prisoners serving sentences of more 
than 1 year, and is responsible for the supervision of parolees and 
prisoners mandatorily released prior to the expiration of their 
sentences, and for the determination of supervisory conditions and 
terms;
    (b) Has responsibility in cases in which the committing court 
specifies that the Parole Commission shall determine the date of parole 
eligibility of the prisoner;
    (c) Has responsibility for determining, in accordance with the 
Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 504), 
whether the service as officials in the field of organized labor or in 
labor oriented management positions of persons convicted of certain 
crimes is contrary to the purposes of that act; and
    (d) Has responsibility under the Employee Retirement Income Security 
Act of 1974 (29 U.S.C. 1111), for determining whether persons convicted 
of certain crimes may provide services to, or be employed by, employment 
benefit plans.

[Order No. 960-81, 46 FR 52349, Oct. 27, 1981]



Sec. 0.125   Chairman of U.S. Parole Commission.

    The Chairman of the United States Parole Commission shall make any 
temporary assignment of a Commissioner to act as Vice Chairman, National 
Appeals Board member, or Regional Commissioner in the case of an absence 
or vacancy in the position, without the concurrence of the Attorney 
General.



Sec. 0.126   Administrative support.

    The Department of Justice shall furnish administrative support to 
the Commission.



Sec. 0.127   Indigent prisoners.

    The U.S. Parole Commission is authorized to exercise the authority 
vested in the Attorney General by section 3569 of title 18, U.S. Code, 
to make a finding that a parolee is unable to pay a fine in whole or in 
part and to direct release of such parolee based on such finding.

[[Page 66]]



            Subpart V-1--Foreign Claims Settlement Commission

    Source: Order No. 960-81, 46 FR 52349, Oct. 27, 1981, unless 
otherwise noted.



Sec. 0.128  Organization.

    The Foreign Claims Settlement Commission of the United States is a 
separate agency within the Department of Justice. It is composed of a 
full-time Chairman, and two part-time Commissioners. All functions, 
powers, and duties of the Commission not directly related to 
adjudicating claims are vested in the Chairman of the Commission, 
including the functions set forth in section 3 of Reorganization Plan 
No. 1 of 1954 and the authority to issue rules and regulations. The 
Attorney General provides necessary administrative support and services 
to the Commission.



Sec. 0.128a  General functions.

    The Foreign Claims Settlement Commission has been authorized to 
determine claims of United States nationals for loss of property in 
specific foreign countries as a result of nationalization or other 
taking by the government of those countries by the International Claims 
Settlement Act of 1949, as amended, (22 U.S.C. 1621-1645o); and to 
determine claims of U.S. nationals and organizations in territories of 
the United States for damage and loss of property as a result of 
military operations during World War II and claims of U.S. military 
personnel and civilian American citizens for having been held in a 
captured status in specified areas during World War II, the Korean 
conflict and the Vietnam conflict by the War Claims Act of 1948, as 
amended (50 U.S.C. app. 2001-2017p).



Sec. 0.128b  Regulations.

    All rules of practice and regulations applicable to the management 
of the affairs of and the adjudication of claims by the Foreign Claims 
Settlement Commission of the United States are published in 45 CFR 
chapter V.



   Subpart W--Additional Assignments of Functions and Designation of 
 Officials to Perform the Duties of Certain Offices in Case of Vacancy, 
  or Absence Therein or in Case of Inability or Disqualification to Act



Sec. 0.130   Functions common to heads of organizational units.

    Subject to the general supervision and direction of the Attorney 
General, the head of each organizational unit within the Department 
shall:
    (a) Direct and supervise the personnel, administration, and 
operation of the office, division, bureau, or board of which he is in 
charge.
    (b) Under regulations prescribed by the Attorney General with the 
approval of the Director of the Office of Management and Budget, have 
authority to reallot funds allotted by the Assistant Attorney General 
for Administration and to redelegate to persons within his 
organizational unit authority and responsibility for the reallotment of 
such funds and control of obligations and expenditures within 
reallotments.
    (c) Perform such special assignments as may from time to time be 
made to him by the Attorney General.
    (d) Except as otherwise provided in this chapter, receive submittals 
and requests relative to the functions of his organizational unit.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 960-81, 46 FR 52349, Oct. 
27, 1981]



Sec. 0.131  Designation of Acting United States Attorneys.

    Each U.S. Attorney is authorized to designate any Assistant U.S. 
Attorney in his office to perform the functions and duties of the U.S. 
Attorney during his absence from office, or with respect to any matter 
from which he has recused himself, and to sign all necessary documents 
and papers, including indictments, as Acting U.S. Attorney

[[Page 67]]

while performing such functions and duties.

[Order No. 840-79, 44 FR 43468, July 25, 1979]



Sec. 0.132   Designating officials to perform the functions and duties of certain offices in case of absence, disability or vacancy.

    (a) In case of vacancy in the office of Attorney General, or of his 
absence or disability, the Deputy Attorney General shall, pursuant to 28 
U.S.C. 508(a) perform the functions and duties of and act as Attorney 
General. When by reason of absence, disability, or vacancy in office, 
neither the Attorney General nor the Deputy Attorney General is 
available to exercise the duties of the office of Attorney General, the 
Associate Attorney General shall, pursuant to 28 U.S.C. 508(b), perform 
the functions and duties of and act as Attorney General. In the event of 
vacancy, absence, or disability in each of these offices, the Solicitor 
General shall perform the functions and duties of and act as Attorney 
General.
    (b) In the event of a vacancy in the office of the Deputy Attorney 
General, the Attorney General may designate another official of the 
Department to perform the functions and duties of and act as Deputy 
Attorney General.
    (c) In the event of a vacancy in the office of Associate Attorney 
General, the Attorney General may designate another official of the 
Department to perform the functions and duties of and act as Associate 
Attorney General.
    (d) In the event of a vacancy in the office of head of any other 
organizational unit, the ranking deputy (or an equivalent official) in 
such unit who is available shall perform the functions and duties of and 
act as such head, unless the Attorney General shall direct otherwise. 
Except as otherwise provided by law, if there is no ranking deputy 
available, the Attorney General shall designate another official of the 
Department to perform the functions and duties of and act as such head.
    (e) The head of each organizational unit of the Department is 
authorized, in case of absence from office or disability, to designate 
the ranking deputy (or an equivalent official) in the unit who is 
available to act as head. If there is no deputy available to act, any 
other official in such unit may be designated. Alternatively, in his 
discretion, the Attorney Generay may designate any official in the 
Department to act as head of a unit whose head is absent or disabled.

[Order No. 755-77, 42 FR 59384, Nov. 17, 1977, as amended by Order No. 
1043-84, 49 FR 4469, Feb. 7, 1984; Order No. 1097-85, 50 FR 25708, June 
21, 1985; Order No. 1858-94, 59 FR 13883, Mar. 24, 1994]



    Subpart X--Authorizations With Respect to Personnel and Certain 
                         Administrative Matters



Sec. 0.137  Federal Bureau of Investigation and Drug Enforcement Administration.

    Except as to persons in Senior Executive Service positions reporting 
directly to the Director of the Federal Bureau of Investigation or the 
Administrator or Deputy Administrator of the Drug Enforcement 
Administration, the Director of the Federal Bureau of Investigation and 
the Administrator of the Drug Enforcement Administration are authorized, 
as to their respective jurisdictions, to exercise the power and 
authority vested in the Attorney General by law to take final action in 
matters pertaining to the employment, direction and general 
administration (including appointment, assignment, training, promotion, 
demotion, compensation, leave, awards, classification and separation) of 
personnel, including personnel in wage board positions. All personnel 
actions under this section shall be subject to post-audit and correction 
by the Assistant Attorney General for Administration.

[Order No. 1975-95, 60 FR 35335, July 7, 1995]



Sec. 0.138  Bureau of Prisons, Federal Prison Industries, Immigration and Naturalization Service, United States Marshals Service, Executive Office for U.S. 
          Attorneys.

    The Director of the Bureau of Prisons, the Commissioner of Federal 
Prison Industries, the Commissioner of Immigration and Naturalization, 
the Director of the U.S. Marshals Service, and the Director of the 
Executive Office for U.S. Attorneys are, as to their respective 
jurisdictions, authorized to

[[Page 68]]

exercise the power and authority vested in the Attorney General by law 
to take final action in matters pertaining to the employment, direction, 
and general administration (including appointment, assignment, training, 
promotion, demotion, compensation, leave, awards, classification, and 
separation) of personnel in General Schedule grades GS-1 through GS-15 
and in wage board positions, but excluding therefrom all attorney and 
U.S. Marshal positions. Such officials are, as to their respective 
jurisdictions, authorized to exercise the power and authority vested in 
the Attorney General by law to employ on a temporary basis experts or 
consultants or organizations thereof, including stenographic reporting 
services (5 U.S.C. 3109(b)). All personnel actions taken under this 
section shall be subject to post-audit and correction by the Assistant 
Attorney General for Administration.

[Order No. 1975-95, 60 FR 35335, July 7, 1995]
Sec. 0.139  [Reserved]



Sec. 0.140   Authority relating to advertisements, and purchase of certain supplies and services.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Administrator of 
the Drug Enforcement Administration, the Director of the Office of 
Justice Research and Statistics and the Director of the United States 
Marshals Service as to their respective jurisdictions, and the Assistant 
Attorney General for Administration, as to all other organizational 
units of the Department (including U.S. Attorneys), are authorized to 
exercise the power and authority vested in the Attorney General by law 
to take final action in the following-described matters:
    (a) Authorizing the publication of advertisements, notices, or 
proposals under (44 U.S.C. 3702).
    (b) Making determinations as to the acquisition of articles, 
materials, or supplies in accordance with sections 2 and 3 of the Buy 
American Act (47 Stat. 1520; 41 U.S.C. 10a, 10b).
    (c) Placing orders with other agencies of the Government for 
materials or services, and accepting orders therefor, in accordance with 
section 686 of title 31 of the U.S. Code.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 960-81, 46 FR 52350, Oct. 27, 1981]



Sec. 0.141   Audit and ledger accounts.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Immigration and 
Naturalization, the Administrator of the Drug Enforcement 
Administration, and the Director of the Office of Justice Assistance, 
Research and Statistics are, as to their respective jurisdictions, 
authorized to audit vouchers and to maintain general ledger accounts 
with respect to appropriations allotted to them.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 960-81, 46 FR 52350, Oct. 
27, 1981]



Sec. 0.142   Per diem and travel allowances.

    The Director of the Federal Bureau of Investigation, Director of the 
Bureau of Prisons, Commissioner of Fedeal Prison Industries, Inc., 
Commissioner of Immigration and Naturalization Service, Administrator of 
the Drug Enforcement Administration, Director of the United States 
Marshals Service, and Assistant Attorney General, Office of Justice 
Programs, as to their respective jurisdictions, and the Assistant 
Attorney General for Administration as to all other organizational units 
of the Department (including U.S. Attorneys), except as provided in 
paragraphs (f) and (g) of this section, are authorized to exercise the 
authority of the Attorney General to take final action in the following 
matters:
    (a) Authorizing travel, subsistence, and mileage allowances under 
sections 5702-5707 of title 5 of the U.S. Code in accordance with 
regulations prescribed by the Administrator of General Services and the 
Assistant Attorney General for Administration.
    (b) Fixing rates in accordance with sections 5702-5704 and 5707 of 
title 5,

[[Page 69]]

U.S. Code, and regulations prescribed by the Administrator of General 
Services and the Assistant Attorney General for Administration.
    (c) Authorizing travel advances pursuant to 5 U.S.C. 5705 in 
accordance with the regulations prescribed by the Administrator of 
General Services and the Assistant Attorney General for Administration.
    (d) Authorizing travel and transportation expenses, and, when 
applicable, relocation expenses for transferred employees, new 
appointees and student trainees, in accordance with 5 U.S.C. 5721-5733 
and regulations prescribed by the Administrator of General Services and 
the Assistant Attorney General for Administration.
    (e) Authorizing or approving, for purposes of security, the use of 
compartments or other transportation accommodations superior to lowest 
first-class accommodations under applicable travel regulations subject 
to 5 U.S.C. 5731.
    (f) The heads of Offices, Boards and Divisions, in addition to the 
Bureaus, have the authority to approve the use of cash in excess of $100 
in lieu of Government Transportation Requests in emergency 
circumstances, in accordance with regulations prescribed by the 
Administrator of the General Services Administration.
    (g) The Director of the Federal Bureau of Investigation and the 
Aministrator of the Drug Enforcement Administration are authorized to 
approve travel expenses of newly appointed special agents and the 
transportation expenses of their families and household goods and 
personal effects from place of residence at time of selection to the 
first duty station, in accordance with 28 U.S.C. 530 and regulations 
prescribed by the Assistant Attorney General for Administration.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 565-74, 39 FR 15877, May 
6, 1974; Order No. 787-78, 43 FR 22969, May 30, 1978; Order No. 800-78, 
43 FR 43297, Sept. 25, 1978; Order No. 864-79, 44 FR 69927, Dec. 5, 
1979; Order No. 960-81, 46 FR 52350, Oct. 27, 1981; Order No. 1093-85, 
50 FR 20908, May 21, 1985]



Sec. 0.143   Incentive Awards Plan.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Administrator of 
the Drug Enforcement Administration, the Director of the Office of 
Justice Assistance, Research and Statistics, the Director of the 
Executive Office for U.S. Attorneys, and the Director of the U.S. 
Marshals Service, as to their respective jurisdictions, and the 
Assistant Attorney General for Administration, as to all other 
organizational units of the Department are authorized to exercise the 
power and authority vested in the Attorney General by law with respect 
to the administration of the Incentive Awards Plan and to approve 
honorary awards and cash awards under such plan not in excess of $5,000.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 772-78, 43 FR 14009, Apr. 4, 1978; Order No. 960-81, 
46 FR 52350, Oct. 27, 1981]



Sec. 0.144  Determination of basic workweek.

    The Director of the Federal Bureau of Investigation, Director of the 
Bureau of Prisons, Commissioner of Federal Prison Industries, Inc., 
Commissioner of the Immigration and Naturalization Service, 
Administrator of the Drug Enforcement Administration, Director of the 
Office of Justice Assistance, Research and Statistics, Director of the 
Executive Office for United States Attorneys and Director of the United 
States Marshals Service, as to their respective jurisdictions, and the 
Assistant Attorney General for Administration, as to all other 
organizational units of the Department, are authorized to exercise the 
authority vested in the Attorney General by 5 U.S.C. 6101(a), to 
determine that the organizational unit concerned would be seriously 
handicapped in carrying out its functions or that costs would be 
substantially increased except upon modification of the basic workweek, 
and when such determination is made to fix the basic workweek of 
officers and employees of the unit concerned.

[Order No. 960-81, 46 FR 52350, Oct. 27, 1981]

[[Page 70]]



Sec. 0.145   Overtime pay.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Administrator of 
the Drug Enforcement Administration, the Director of the Office of 
Justice Assistance, Research and Statistics and the Director of the U.S. 
Marshals Service as to their respective jurisdictions, and the Assistant 
Attorney General for Administration, as to all other organizational 
units of the Department (including U.S. Attorneys), may, subject to any 
regulations which the Attorney General may prescribe, authorize overtime 
pay (including additional compensation in lieu of overtime of not less 
than 10 percent nor more than 25 percent pursuant to section 5545(c)(2) 
of title 5, U.S. Code) for such positions as may be designated by them.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 960-81, 46 FR 52350, Oct. 27, 1981]



Sec. 0.146   Seals.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Chairman of the 
Board of Parole, the Administrator of the Drug Enforcement 
Administration, the Director of the Office of Justice Assistance, 
Research and Statistics, and the Director of the U.S. Marshals Service 
shall each have custody of the seal pertaining to his respective 
jurisdiction and he, or such person or persons as he may designate, may 
execute under seal any certification required to authenticate any books, 
records, papers, or other documents as true copies of official records 
of their respective jurisdictions. The Assistant Attorney General for 
Administration shall have custody of the seal of the Department of 
Justice, and he, or such person or persons as he may designate, may 
execute under seal any certification required to authenticate any books, 
records, papers, or other documents as true copies of official records 
of the Department of Justice. He may also prescribe regulations 
governing the use of the seal of the Department and various 
organizational units.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 960-81, 46 FR 52350, Oct. 27, 1981]



Sec. 0.147  Certification of obligations.

    The following designated officials are authorized to make the 
certifications required by 31 U.S.C. 200(c): For the Federal Bureau of 
Investigation, the Assistant Director, Administrative Services Division; 
for the Bureau of Prisons, the Assistant Director for Planning and 
Development; for Federal Prison Industries, Inc., the Secretary; for the 
Immigration and Naturalization Service, the Comptroller; for the Drug 
Enforcement Administration, the Director of the Office of Administration 
and Management; for the Office of Justice Assistance, Research and 
Statistics, the Comptroller; and for all other organizational units of 
the Department (including U.S. Attorneys and U.S. Marshals), the Deputy 
Assistant Attorney General, Office of the Controller, Justice Management 
Division.

[Order No. 972-82, 47 FR 9823, Mar. 8, 1982]



Sec. 0.148  Certifying officers.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of the Federal Prison 
Industries, Inc., the Commissioner of the Immigration and Naturalization 
Service, the Administrator of the Drug Enforcement Administration, 
Assistant Attorney General for the Office of Justice Programs, the 
Director of the United States Marshals Service, and the Director of the 
Executive Office for United States Attorneys, as to their respective 
jurisdictions, and the Assistant Attorney General for Administration, as 
to all other organizational units of the Department are authorized to 
designate employees to certify vouchers.

[Order No. 1142-86, 51 FR 25049, July 10, 1986]

[[Page 71]]



Sec. 0.149  Cash payments.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of the Federal Prison 
Industries, Inc., the Commissioner of the Immigration and Naturalization 
Service, the Administrator of the Drug Enforcement Administration, the 
Assistant Attorney General for the Office of Justice Programs, the 
Director of the United States Marshals Service, and the Director of the 
Executive Office for United States Attorneys, as to their respective 
jurisdictions, and the Assistant Attorney General for Administration, as 
to all other organizational units of the Department, are authorized to:
    (a) Request Department of the Treasury designation of disbursing 
employees (including cashiers),
    (b) Approve waivers of the Department of the Treasury maximum 
limitation on routine payments of cash from imprest funds, and
    (c) Approve requests to place imprest funds in depositary cash 
demand withdrawal accounts and establish the maximum amount of each 
account.

Guidelines are to be promulgated by each component for the establishment 
and maintenance of such accounts in accordance with the provisions set 
forth in the Treasury Financial Manual, Volume I, Part 4, Chapter 3000. 
Existing authorizations to request designations of disbursing employees 
shall remain in effect until terminated by the official who by this 
section would be authorized to request such designations.

[Order No. 1142-86, 51 FR 25049, July 10, 1986]



Sec. 0.150   Collection of erroneous payments.

    The Director of the Federal Bureau of Investigation for the FBI and 
the Assistant Attorney General for Administration for all other 
organizational units of the Department are authorized, in accordance 
with the regulations prescribed by the Attorney General under section 
5514(b) of title 5, U.S. Code, to collect indebtedness resulting from 
erroneous payments to employees.

[Order No. 634-75, 40 FR 58644, Dec. 18, 1975]



Sec. 0.151   Administering oath of office.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Administrator of 
the Drug Enforcement Administration, the Director of the Office of 
Justice Assistance, Research and Statistics, the Director of the 
Executive Office for U.S. Attorneys, and the Director of the U.S. 
Marshals Service, as to their respective jurisdictions, and the 
Assistant Attorney General for Administration, as to all other 
organizational units of the Department are authorized to designate, in 
writing, pursuant to the provisions of sections 2903(b) and 2904 of 
title 5, U.S. Code, officers or employees to administer the oath of 
office required by section 3331 of title 5, U.S. Code, and to administer 
any other oath required by law in connection with employment in the 
executive branch of the Federal Government.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 772-78, 43 FR 14009, Apr. 4, 1978; Order No. 960-81, 
46 FR 52351, Oct. 27, 1981]



Sec. 0.152   Approval of funds for attendance at meetings.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Immigration and 
Naturalization, the Administrator of the Drug Enforcement Administration 
and the Director of the Office of Justice Assistance, Research and 
Statistics, as to their respective jurisdictions, and the Assistant 
Attorney General for Administration, as to all other organizational 
units of the Department (including U.S. Attorneys and Marshals), are 
authorized to exercise the power and authority vested in the Attorney 
General by law to prescribe regulations for the expenditure of 
appropriated funds available for expenses of attendance at meetings of 
organizations.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 960-81, 46 FR 52351, Oct. 
27, 1981]

[[Page 72]]



Sec. 0.153  Selection and assignment of employees for training.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
Inc., the Commissioner of the Immigration and Naturalization Service, 
the Administrator of the Drug Enforcement Administration, the Director 
of the Office of Justice Assistance, Research and Statistics, the 
Director of the Executive Office for United States Attorneys and the 
Director of the United States Marshals Service, as to their respective 
jurisdictions, and the Assistant Attorney General for Administration, as 
to all other organizational units of the Department, are hereby 
authorized to exercise the authority vested in the Attorney General by 5 
U.S.C. 4109, with respect to the selection and assignment of employees 
for training by, in, or through Government facilities and the payment or 
reimbursement of expenses for such training.

[Order No. 960-81, 46 FR 52351, Oct. 27, 1981]



Sec. 0.154   Advance and evacuation payments and special allowances.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Administrator of 
the Drug Enforcement Administration, the Director of the United States 
Marshals Service, and the Director of the Office of Justice Assistance, 
Research and Statistics, as to their respective jurisdictions, and the 
Assistant Attorney General for Administration, as to all other 
organizational units of the Department (including U.S. Attorneys), are 
hereby authorized to exercise the authority vested in the Attorney 
General by sections 5522-5527 of title 5, U.S. Code, and Executive Order 
10982 of December 25, 1961, and to administer the regulations adopted by 
the Attorney General in Order No. 269-62 with respect to advance and 
evacuation payments and special allowances.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 565-74, 39 FR 15877, May 
6, 1974; Order No. 960-81, 46 FR 52351, Oct. 27, 1981]



Sec. 0.155   Waiver of claims for erroneous payments of pay and allowances.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Administrator of 
the Drug Enforcement Administration, and the Director of the Office of 
Justice Assistance, Research and Statistics, as to their respective 
jurisdictions, and the Assistant Attorney General for Administration as 
to all other organizational units of the Department (including U.S. 
Attorneys and Marshals) are authorized to exercise the authority under 5 
U.S.C. 5584, as amended by Public Law 92-453, for the waiver of claims 
of the United States for erroneous payments of pay and allowances to 
employees of the Department of Justice in accordance with the standards 
prescribed by the Comptroller General in 4 CFR parts 91 through 93.

[Order No. 514-73, 38 FR 12110, May 17, 1973, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 960-81, 46 FR 52351, Oct. 
27, 1981]



Sec. 0.156   Execution of U.S. Marshals' deeds or transfers of title.

    A chief deputy or deputy U.S. Marshal who sells property--real, 
personal, or mixed--on behalf of a U.S. Marshal, may execute a deed or 
transfer of title to the purchaser on behalf of and in the name of the 
U.S. Marshal.



Sec. 0.157  Federal Bureau of Investigation--Drug Enforcement Administration Senior Executive Service.

    (a) Pursuant to 5 U.S.C. 3151, there is established a personnel 
system for senior personnel within the Federal Bureau of Investigation 
(FBI) and the Drug Enforcement Administration

[[Page 73]]

(DEA) to be known as the FBI-DEA Senior Executive Service (FBI-DEA SES).
    (b) The FBI-DEA SES is subject to the overall supervision and 
direction of the Deputy Attorney General.
    (c) With respect to personnel within the FBI and the DEA who report 
directly to the Director of the FBI or to the Administrator or Deputy 
Administrator of the DEA, the Deputy Attorney General is authorized to 
exercise the authority conferred upon the Attorney General by 5 U.S.C. 
3151 and shall ensure that the FBI-DEA SES is designed and administered 
in compliance with all statutory and regulatory requirements.
    (d) With respect to personnel within the FBI and the DEA not covered 
by paragraph (c) of this section, and consistent with paragraph (b) of 
this section and Sec. 0.137, the Director of the FBI and the 
Administrator of the DEA are authorized to exercise for their respective 
jurisdictions the authority conferred upon the Attorney General by 5 
U.S.C. 3151 and shall ensure that the FBI-DEA SES is designed and 
administered in compliance with all statutory and regulatory 
requirements.
    (e) The Attorney General retains the authority to recommend members 
of the FBI-DEA SES for Presidential rank awards.

[Order No. 1600-92, 57 FR 31314, July 15, 1992, as amended by Order No. 
1975-95, 60 FR 35335, July 7, 1995]
Sec. 0.158  [Reserved]



Sec. 0.159  Redelegation of authority.

    Except as to the authority delegated by Sec. 0.147, the authority 
conferred by this subpart X upon heads of organizational units may be 
redelegated by them, respectively, to any of their subordinates. 
Existing delegations of authority to officers and employees and to U.S. 
Attorneys, not inconsistent with this subpart X, made by any officer 
named in this section or by the Assistant Attorney General for 
Administration, shall continue in force and effect until modified or 
revoked.

[Order No. 543-73, 38 FR 29587, Oct. 26, 1973]



     Subpart Y--Authority to Compromise and Close Civil Claims and 
     Responsibility for Judgments, Fines, Penalties, and Forfeitures



Sec. 0.160   Offers that may be accepted by Assistant Attorneys General.

    (a) Subject to the limitations set forth in paragraph (c) of this 
section, Assistant Attorneys General are authorized, with respect to 
matters assigned to their respective divisions, to:
    (1) Accept offers in compromise of claims asserted by the United 
States in all cases in which the difference between the gross amount of 
the original claim and the proposed settlement does not exceed 
$2,000,000 or 15 percent of the original claim, whichever is greater;
    (2) Accept offers in compromise of, or settle administratively, 
claims against the United States in all cases in which the principal 
amount of the proposed settlement does not exceed $2,000,000; and
    (3) Accept offers in compromise in all nonmonetary cases.
    (b) Subject to the limitations set forth in paragraph (c) of this 
section, the Assistant Attorney General, Tax Division, is further 
authorized to accept offers in compromise of, or settle 
administratively, claims against the United States, regardless of the 
amount of the proposed settlement, in all cases in which the Joint 
Committee on Taxation has indicated that it has no adverse criticism of 
the proposed settlement.
    (c) Any proposed settlement, regardless of amount or circumstances, 
must be referred to the Deputy Attorney General or the Associate 
Attorney General, as appropriate:
    (1) When, for any reason, the compromise of a particular claim 
would, as a practical matter, control or adversely influence the 
disposition of other claims and the compromise of all the claims taken 
together would exceed the authority delegated by paragraph (a) of this 
section; or
    (2) When the Assistant Attorney General concerned is of the opinion 
that because of a question of law or policy presented, or because of 
opposition to

[[Page 74]]

the proposed settlement by a department or agency involved, or for any 
other reason, the proposed settlement should receive the personal 
attention of the Deputy Attorney General or the Associate Attorney 
General, as appropriate;
    (3) When the proposed settlement converts into a mandatory duty the 
otherwise discretionary authority of a department or agency to 
promulgate, revise, or rescind regulations;
    (4) When the proposed settlement commits a department or agency to 
expend funds that Congress has not appropriated and that have not been 
budgeted for the action in question, or commits a department or agency 
to seek particular appropriation or budget authorization; or
    (5) When the proposed settlement otherwise limits the discretion of 
a department or agency to make policy or managerial decisions committed 
to the department or agency by Congress or by the Constitution.

[Order No. 1958-95, 60 FR 15674, Mar. 27, 1995]



Sec. 0.161  Acceptance of certain offers by the Deputy Attorney General or Associate Attorney General, as appropriate.

    (a) In all cases in which the acceptance of a proposed offer in 
compromise would exceed the authority delegated by Sec. 0.160, the 
Assistant Attorney General concerned shall, when he is of the opinion 
that the proposed offer should be accepted, transmit his recommendation 
to that effect to the Deputy Attorney General or the Associate Attorney 
General, as appropriate.
    (b) The Deputy Attorney General or the Associate Attorney General, 
as appropriate, is authorized to exercise the settlement authority of 
the Attorney General as to all claims asserted by or against the United 
States.

[Order No. 1958-95, 60 FR 15675, Mar. 27, 1995]



Sec. 0.162   Offers which may be rejected by Assistant Attorneys General.

    Each Assistant Attorney General is authorized, with respect to 
matters assigned to his division or office, to reject offers in 
compromise of any claims in behalf of the United States, or, in 
compromises or administrative actions to settle, against the United 
States, except in those cases which come under Sec. 0.160(c)(2).

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 960-81, 46 FR 52352, Oct. 
27, 1981]



Sec. 0.163   Approval by Solicitor General of action on compromise offers in certain cases.

    In any Supreme Court case the acceptance, recommendation of 
acceptance, or rejection, under Sec. 0.160, Sec. 0.161, or Sec. 0.162, 
of a compromise offer by the Assistant Attorney General concerned, shall 
have the approval of the Solicitor General. In any case in which the 
Solicitor General has authorized an appeal to any other court, a 
compromise offer, or any other action, which would terminate the appeal, 
shall be accepted or acted upon by the Assistant Attorney General 
concerned only upon advice from the Solicitor General that the 
principles of law involved do not require appellate review in that case.



Sec. 0.164  Civil claims that may be closed by Assistant Attorneys General.

    Assistant Attorneys General are authorized, with respect to matters 
assigned to their respective divisions, to close (other than by 
compromise or by entry of judgment) claims asserted by the United States 
in all cases in which they would have authority to accept offers in 
compromise of such claims under Sec. 0.160(a), except:
    (a) When for any reason, the closing of a particular claim would, as 
a practical matter, control or adversely influence the disposition of 
other claims and the closing of all the claims taken together would 
exceed the authority delegated by this section; or
    (b) When the Assistant Attorney General concerned is of the opinion 
that because of a question of law or policy presented, or because of 
opposition to the proposed closing by the department or agency involved, 
or for any other reason, the proposed closing should receive the 
personal attention of the Attorney General, the Deputy Attorney General 
or the Associate Attorney General, as appropriate.

[Order No. 1958-95, 60 FR 15675, Mar. 27, 1995]

[[Page 75]]



Sec. 0.165  Recommendations to the Deputy Attorney General or Associate Attorney General, as appropriate, that certain claims be closed.

    In all cases in which the closing of a claim asserted by the United 
States would exceed the authority delegated by Secs. 0.160(a) and 0.164, 
the Assistant Attorney General concerned shall, when he is of the 
opinion that the claim should be closed, transmit his recommendation to 
that effect, together with a report on the matter, to the Deputy 
Attorney General or the Associate Attorney General, as appropriate, for 
review and final action. Such report shall be in such form as the Deputy 
Attorney General or the Associate Attorney General may require.

[Order No. 1958-95, 60 FR 15675, Mar. 27, 1995]



Sec. 0.166   Memorandum pertaining to closed claim.

    In each case in which a claim is closed under Sec. 0.164 the 
Assistant Attorney General concerned shall execute and place in the file 
pertaining to the claim a memorandum which shall contain a description 
of the claim and a full statement of the reasons for closing it.



Sec. 0.167   Submission to Associate Attorney General by Director of Office of Alien Property of certain proposed allowances and disallowances.

    In addition to the matters which he is required to submit to the 
Associate Attorney General under preceding sections of this subpart Y, 
the Director of the Office of Alien Property, shall submit to the 
Associate Attorney General for such review as he may desire to make the 
following:
    (a) Any proposed allowance by the Director, without hearing, of a 
title or debt claim.
    (b) Any final determination of a title of debt claim, whether by 
allowance or disallowance.
    (c) Any proposed allowance or disallowance by the Director, without 
hearing, of a title claim under section 9(a) of the Trading with the 
Enemy Act, as amended, filed less than 2 years after the date of vesting 
in or transfer to the Alien Property Custodian or the Attorney General 
of the property or interest in respect of which the claim is made:

Provided, That any such title or debt claim is within one of the 
following-described categories.
    (1) Any title claim which involves the return of assets having a 
value of $50,000 or more, or any debt claim in the amount of $50,000 or 
more.
    (2) Any title claim which will, as a practical matter, control the 
disposition of related title claims involving, with the principal claim, 
assets having a value of $50,000 or more; or any debt claim which will, 
as a practical matter, control the disposition of related debt claims in 
the aggregate amount, including the principal claim, of $50,000 or more.
    (3) Any title claim or debt claim presenting a novel question of law 
or a question of policy which, in the opinion of the Director, should 
receive the personal attention of the Associate Attorney General or the 
Attorney General.
    (d) Any sale or other disposition of vested property involving 
assets of $50,000 or more.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 543-73, 38 FR 29587, Oct. 
26, 1973; Order No. 568-74, 39 FR 18646, May 29, 1974; Order No. 699-77, 
42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52352, Oct. 27, 
1981]



Sec. 0.168  Redelegation by Assistant Attorneys General.

    (a) Assistant Attorneys General are authorized, with respect to 
matters assigned to their respective divisions, to redelegate to 
subordinate division officials and United States Attorneys any of the 
authority delegated by Secs. 0.160 (a) and (b), 0.162, 0.164, and 
0.172(b), except that any disagreement between a United States Attorney 
or other Department attorney and a client agency over a proposed 
settlement that cannot be resolved below the Assistant Attorney General 
level must be presented to the Assistant Attorney General for 
resolution.
    (b) Redelegations of authority under this section shall be in 
writing and shall be approved by the Deputy Attorney General or the 
Associate Attorney General, as appropriate, before taking effect.

[[Page 76]]

    (c) Existing delegations and redelegations of authority to 
subordinate division officials and United States Attorneys to compromise 
or close civil claims shall continue in effect until modified or revoked 
by the respective Assistant Attorneys General.
    (d) Subject to the limitations set forth in Sec. 0.160(c) and 
paragraph (a) of this section, redelegations by the Assistant Attorneys 
General to United States Attorneys may include the authority to:
    (1) Accept offers in compromise of claims asserted by the United 
States in all cases in which the gross amount of the original claim does 
not exceed $5,000,000 and in which the difference between the original 
claim and the proposed settlement does not exceed $1,000,000; and
    (2) Accept offers in compromise of, or settle administratively, 
claims against the United States in all cases in which the principal 
amount of the proposed settlement does not exceed $1,000,000.

[Order No. 1958-95, 60 FR 15675, Mar. 27, 1995]



Sec. 0.169  Definition of ``gross amount of the original claim''.

    The phrase gross amount of the original claim, as used in this 
subpart Y and as applied to any civil claim brought under section 592 of 
the Tariff Act of 1930, as amended (see Sec. 0.45(c)), shall mean the 
actual amount of lost customs duties involved. In nonrevenue loss cases 
brought under section 592 of the Tariff Act of 1930, as amended, the 
phrase ``gross amount of the original claim'' shall mean the amount 
demanded in the Customs Service's mitigation decision issued pursuant to 
19 U.S.C. 1618, or, if no mitigation decision has been issued, the 
``gross amount of the original claim'' shall mean twenty percent of the 
dutiable value of the merchandise.

[Order No. 1149-86, 51 FR 31940, Sept. 8, 1986]



Sec. 0.170   Interest on monetary limits.

    In computing the gross amount of the original claim and the amount 
of the proposed settlement pursuant to this subpart Y, accrued interest 
shall be excluded.



Sec. 0.171  Judgments, fines, penalties, and forfeitures.

    (a) Each United States Attorney shall be responsible for conducting, 
handling, or supervising such litigation or other actions as may be 
appropriate to accomplish the satisfaction, collection, or recovery of 
judgments, fines, penalties, and forfeitures (including bail bond 
forfeitures) imposed in his district, unless the Assistant Attorney 
General, or his delegate, of the litigating division which has 
jurisdiction of the case in which such judgment, fine, penalty or 
forfeiture is imposed notifies the United States Attorney in writing 
that the division will assume such enforcement responsibilities.
    (b) Each U.S. Attorney shall designate an Assistant U.S. Attorney, 
and such other employees as may be necessary, or shall establish an 
appropriate unit within his office, to be responsible for activities 
related to the satisfaction, collection, or recovery, as the case may 
be, of judgments, fines, penalties, and forfeitures (including bail-bond 
forfeitures).
    (c) The Director of the Executive Office for United States Attorneys 
shall be responsible for the establishment of policy and procedures and 
other appropriate action to accomplish the satisfaction, collection, or 
recovery of fines, special assessments, penalties, interest, bail bond 
forfeitures, restitution, and court costs arising from the prosecution 
of criminal cases by the Department of Justice and the United States 
Attorneys. He shall also prepare regulations required by 18 U.S.C. 
3613(c), pertaining to the application of tax lien provisions to 
criminal fines, for issuance by the Attorney General.
    (d) The United States Attorney for the judicial district in which a 
criminal monetary penalty has been imposed is authorized to receive all 
notifications of payment, certified copies of judgments or orders, and 
notifications of change of address pertaining to an unpaid fine, which 
are otherwise required to be delivered to the Attorney General pursuant 
to 18 U.S.C. 3612. If an Assistant Attorney General of a litigating 
division has notified the United

[[Page 77]]

States Attorney, pursuant to paragraph (a) of this section that such 
division will assume responsibility for enforcement of a criminal 
monetary penalty, the United States Attorney shall promptly transmit 
such notifications and certified copies of judgments or orders to such 
division.
    (e) With respect to cases assigned to his office, each United States 
Attorney--
    (1) Shall be responsible for collection of any unpaid fine with 
respect to which a certification has been issued as provided in 18 
U.S.C. 3612(b);
    (2) Shall provide notification of delinquency or default of any fine 
as provided in 18 U.S.C. 3612 (d) and (e);
    (3) May waive all or any part of any interest or penalty relating to 
a fine imposed under any prior law if, as determined by such United 
States Attorney, reasonable efforts to collect the interest or penalty 
are not likely to be effective; and
    (4) Is authorized to accept delivery of the amount or property due 
as restitution for transfer to the victim or person eligible under 18 
U.S.C. 3663 (or under 18 U.S.C. 3579 (f)(4) with respect to offenses 
committed prior to November 1, 1987).
    (f) With respect to offenses committed after December 31, 1984, and 
prior to November 1, 1987, each United States Attorney is authorized 
with respect to cases assigned to his office--
    (1) At his discretion, to declare the entire unpaid balance of a 
fine or penalty payable immediately in accordance with 18 U.S.C. 
3565(b)(3);
    (2) If a fine or penalty exceeds $500, to receive a certified copy 
of the judgment, otherwise required to be delivered by the clerk of the 
court to the Attorney General;
    (3) When a fine or penalty is satisfied as provided by law,
    (i) To file with the court a notice of satisfaction of judgment if 
the defendant makes a written request to the United States Attorney for 
such filing; or,
    (ii) If the amount of the fine or penalty exceeds $500 to enter into 
a written agereement with the defendant to extend the twenty-year period 
of obligation to pay fine.
    (g) With respect to offenses committed prior to November 1, 1987, 
each United States Attorney is hereby authorized, with respect to the 
discharge of indigent prisoners under 18 U.S.C. 3569, to make a finding 
as to whether the retention by a convict of property, in excess of that 
which is by law exempt from being taken on civil process for debt, is 
reasonably necessary for the convict's support or that of his family.
    (h) The Director of the Bureau of Prisons shall take such steps as 
may be necessary to assure that the appropriate U.S. Attorney is 
notified whenever a prisoner is released prior to the payment of his 
fine.
    (i) The Pardon Attorney shall notify the appropriate U.S. Attorney 
whenever the President issues a pardon and whenever the President remits 
or commutes a fine.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 699-77, 42 FR 15315, Mar. 
21, 1977; Order No. 960-81, 46 FR 52352, Oct. 27, 1981; Order No. 1034-
83, 48 FR 50714, Nov. 3, 1983; Order No. 1413-90, 55 FR 19064, May 8, 
1990]



Sec. 0.172  Authority: Federal tort claims.

    (a) The Director of the Bureau of Prisons, the Commissioner of 
Federal Prison Industries, the Commissioner of Immigration and 
Naturalization, the Director of the United States Marshals Service and 
the Administrator of the Drug Enforcement Administration shall have 
authority to adjust, determine, compromise, and settle a claim involving 
the Bureau of Prisons, Federal Prison Industries, the Immigration and 
Naturalization Service, the U.S. Marshals Service and the Drug 
Enforcement Administration, respectively, under section 2672 of title 
28, U.S. Code, relating to the administrative settlement of Federal tort 
claims, if the amount of a proposed adjustment, compromise, settlement 
or award does not exceed $10,000. When in the opinion of one of the said 
Directors or one of the said Commissioners such a claim pending before 
him presents a novel question of law or a question of policy, he shall 
obtain the advice of the Assistant Attorney General in charge of the 
Civil Division.

[[Page 78]]

    (b) Subject to the provisions of Sec. 0.160, the assistant Attorney 
General in charge of the Civil Division shall have authority to adjust, 
determine, compromise, and settle any other claim involving the 
Department under section 2672, of title 28, U.S. Code, relating to the 
administrative settlement of Federal tort claims.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18381, July 10, 1973; Order No. 565-74, 39 FR 15877, May 
6, 1974; Order No. 1149-86, 51 FR 31940, Sept. 8, 1986; Order No. 1528-
91, 56 FR 48734, Sept. 26, 1991]

  Appendix to Subpart Y--Redelegations of Authority To Compromise and 
                           Close Civil Claims

                             Civil Division

                             [Memo No. 374]

    Editorial Note: Civil Division, Memorandum No. 374 was superseded by 
Civil Division, Directive No. 110-78, appearing at 43 FR 38820, Aug. 31, 
1978.

                          [Directive No. 18-71]

    Editorial Note: Civil Division, Directive No. 18-71 was superseded 
by Civil Division, Directive No. 110-78, appearing at 43 FR 38820, Aug. 
31, 1978.

                          [Directive No. 31-72]

    Editorial Note: Civil Division, Directive No. 31-72 was superseded 
by Civil Division, Directive No. 110-78, appearing at 43 FR 38820, Aug. 
31, 1978.

                         [Directive No. 110-78]

    Editorial Note: Civil Division, Directive No. 110-78 was superseded 
by Civil Division, Directive No. 145-81, appearing at 46 FR 52353, Oct. 
27, 1981.

                         [Directive No. 145-81]

    Editorial Note: Civil Division, Directive No. 145-81 was removed by 
Civil Division, Directive No. 163-86, appearing at 53 FR 4010, Feb. 11, 
1988.

  Redelegation of Authority, to Branch Directors, Heads of Offices and 
             United States Attorneys in Civil Division Cases

                          [Directive No. 14-95]

    By virtue of the authority vested in me by part 0 of title 28 of the 
Code of Federal Regulations, particularly Secs. 0.45, 0.160, 0.164, and 
0.168, it is hereby ordered as follows:

Section 1. Authority To Compromise or Close Cases and to File Suits and 
                                 Claims

    (a) Delegation to Deputy Assistant Attorneys General. The Deputy 
Assistant Attorneys General are authorized to act for, and to exercise 
the authority of, the Assistant Attorney General in charge of the Civil 
Division with respect to the institution of suits, the acceptance or 
rejection of compromise offers, and the closing of claims or cases, 
unless any such authority is required by law to be exercised by the 
Assistant Attorney General personally or has been specifically delegated 
to another Department official.
    (b) Delegation to United States Attorneys, Branch, Office and Staff 
Directors and Attorneys-in-Charge of Field Offices. Subject to the 
limitations imposed by 28 CFR 0.160(c), and 0.164(a) and section 4(c) of 
this directive, and the authority of the Solicitor General set forth in 
28 CFR 0.163,
    (1) Branch, Office, and Staff Directors, and Attorneys-in-Charge of 
Field Offices with respect to matters assigned or delegated to their 
respective components are hereby delegated the authority to:
    (a) Accept offers in compromise of claims on behalf of the United 
States;
    (i) In all cases in which the gross amount of the original claim did 
not exceed $500,000; and,
    (ii) In all cases in which the gross amount of the original claim 
was between $500,000 and $5,000,000, so long as the difference between 
the gross amount of the original claim and the proposed settlement does 
not exceed $500,000 or 15 percent of the original claim, whichever is 
greater;
    (b) Accept offers in compromise of, or settle administratively, 
claims against the United States in all cases where the principal amount 
of the proposed settlement does not exceed $500,000; and,
    (c) Reject any offers.
    (2) United States Attorneys with respect to matters assigned or 
delegated to their respective components are hereby delegated the 
authority to:
    (a) Accept offers in compromise of claims on behalf of the United 
States;
    (i) In all cases in which the gross amount of the original claim did 
not exceed $1,000,000 and,
    (ii) In all cases in which the gross amount of the original claim 
does not exceed $5,000,000, and in which the difference between the 
gross amount of the original claim and the proposed settlement does not 
exceed $1,000,000;
    (b) Accept offers in compromise of, or settle administratively, 
claims against the United States in all cases where the principal amount 
of the proposed settlement does not exceed $1,000,000 and,
    (c) Reject any offers.

[[Page 79]]

    (3) With respect to claims asserted in bankruptcy proceedings, the 
term gross amount of the original claim in (1) (a) and (b), and (2) (a) 
and (b) above means liquidation value. Liquidation value is the forced 
sale value of the collateral, if any, securing the claim(s) plus the 
dividend likely to be paid for the unsecured portion of the claim(s) in 
an actual or hypothetical liquidation of the bankruptcy estate.
    (c) Subject to the limitations imposed by sections 1(e) and 4(c) of 
this directive, United States Attorneys, Directors, and Attorneys-in-
Charge are authorized to file suits, counterclaims, and cross-claims, to 
close, or to take any other action necessary to protect the interests of 
the United States in all routine nonmonetary cases, in all routine loan 
collection and foreclosure cases, and in other monetary claims or cases 
where the gross amount of the original claim does not exceed $500,000, 
or in the case of United States Attorneys, $1,000,000. Such actions in 
nonmonetary cases which are other than routine will be submitted for the 
approval of the Assistant Attorney General, Civil Division.
    (d) United States Attorneys may redelegate in writing the above-
conferred compromise and suit authority to Assistant United States 
Attorneys who supervise other Assistant United States Attorneys who 
handle civil litigation.
    (e) Limitations on delegations. The authority to compromise cases, 
file suits, counter-claims, and cross-claims, to close cases, or take 
any other action necessary to protect the interests of the United 
States, delegated by paragraphs (a) and (b) of this section, may not be 
exercised, and the matter shall be submitted for resolution to the 
Assistant Attorney General, Civil Division, when:
    (1) For any reason, the proposed action, as a practical matter, will 
control or adversely influence the disposition of other claims totaling 
more than the respective amounts designated in the above paragraphs.
    (2) Because a novel question of law or a question of policy is 
presented, or for any other reason, the proposed action should, in the 
opinion of the officer or employee concerned, receive the personal 
attention of the Assistant Attorney General, Civil Division.
    (3) The agency or agencies involved are opposed to the proposed 
action. The views of an agency must be solicited with respect to any 
significant proposed action if it is a party, if it has asked to be 
consulted with respect to any such proposed action, or if such proposed 
action in a case would adversely affect any of its policies.
    (4) The U.S. Attorney involved is opposed to the proposed action and 
requests that the matter be submitted to the Assistant Attorney General 
for decision.
    (5) The case is on appeal, except as determined by the Director of 
the Appellate Staff.

                       Section 2. Action Memoranda

    (a) Whenever an official of the Civil Division or a United States 
Attorney accepts a compromise, closes a claim or files a suit or claim 
pursuant to the authority delegated by this Directive, a memorandum 
fully explaining the basis for the action taken shall be executed and 
placed in the file. In the case of matters compromised, closed, or filed 
by United States Attorneys, a copy of the memorandum must be sent to the 
appropriate Branch or Office of the Civil Division.
    (b) The compromising of cases or closing of claims or the filing of 
suits for claims, which a United States Attorney is not authorized to 
approve, shall be referred to the appropriate Branch or Office within 
the Civil Division, for decision by the Assistant Attorney General or 
the appropriate authorized person within the Civil Division. The 
referral memorandum should contain a detailed description of the matter, 
the United States Attorney's recommendation, the agency's recommendation 
where applicable, and a full statement of the reasons therefor.

          Section 3. Return of Civil Judgment Cases to Agencies

    Claims arising out of judgments in favor of the United States which 
cannot be permanently closed as uncollectible may be returned to the 
referring Federal agency for servicing and surveillance whenever all 
conditions set forth in USAM 4-2.230 have been met.

   Section 4. Authority for Direct Reference and Delegation of Civil 
                Division Cases to United States Attorneys

    (a) Direct reference to United States Attorneys by agencies. The 
following civil actions under the jurisdiction of the Assistant Attorney 
General, Civil Division, may be referred by the agency concerned 
directly to the appropriate United States Attorney for handling in trial 
courts, subject to the limitations imposed by paragraph (c) of this 
section. United States Attorneys are hereby delegated the authority to 
take all necessary steps to protect the interests of the United States, 
without prior approval of the Assistant Attorney General, Civil 
Division, or his representations, subject to the limitations set forth 
in section 1(e) of this directive. Agencies may, however, if special 
handling is desired, refer these cases to the Civil Division. Also, when 
constitutional questions or other significant issues arise in the course 
of such litigation, or when an appeal is taken by any party, the Civil 
Division should be consulted.
    (1) Money claims by the United States, except claims involving 
penalties and forfeitures, where the gross amount of the original claim 
does not exceed $1,000,000.

[[Page 80]]

    (2) Single family dwelling house foreclosures arising out of loans 
made or insured by the Department of Housing and Urban Development, the 
Veterans Administration and the Farmers Home Administration.
    (3) Suits to enjoin violations of, and to collect penalties under, 
the Agricultural Adjustment Act of 1938, 7 U.S.C. 1376, the Packers and 
Stockyards Act, 7 U.S.C. 203, 207(g), 213, 215, 216, 222, and 228a, the 
Perishable Agricultural Commodities Act, 1930, 7 U.S.C. 499c(a) and 
499h(d), the Egg Products Inspection Act, 21 U.S.C. 1031 et seq., the 
Potato Research and Promotion Act, 7 U.S.C. 2611 et seq., the Cotton 
Research and Promotion Act of 1966, 7 U.S.C. 2101 et seq., the Federal 
Meat Inspection Act, 21 U.S.C. 601 et seq., and the Agricultural 
Marketing Agreement Act of 1937, as amended, 7 U.S.C. 601 et seq.
    (4) Suits by social security beneficiaries under the Social Security 
Act, 42 U.S.C. 402 et seq.
    (5) Social Security disability suits under 42 U.S.C. 423 et seq.
    (6) Black lung beneficiary suits under the Federal Coal Mine Health 
and Safety Act of 1969, 30 U.S.C. 921 et seq.
    (7) Suits by Medicare beneficiaries under 42 U.S.C. 1395ff.
    (8) Garnishment actions authorized by 42 U.S.C. 659 for child 
support or alimony payments and actions for general debt, 5 U.S.C. 
5520a.
    (9) Judicial review of actions of the Secretary of Agriculture under 
the food stamp program, pursuant to the provisions of 7 U.S.C. 2022 
involving retail food stores.
    (10) Cases referred by the Department of Labor for the collection of 
penalties or for injunctive action under the Fair Labor Standards Act of 
1938 and the Occupational Safety and Health Act of 1970.
    (11) Cases referred by the Department of Labor solely for the 
collection of civil penalties under the Farm Labor Contractor 
Registration Act of 1963, 7 U.S.C. 2048(b).
    (12) Cases referred by the Interstate Commerce Commission to enforce 
orders of the Interstate Commerce Commission or to enjoin or suspend 
such orders pursuant to 28 U.S.C. 1336.
    (13) Cases referred by the United States Postal Service for 
injunctive relief under the nonmailable matter laws, 39 U.S.C. 3001 et 
seq.
    (b) Delegation to United States Attorneys. Upon the recommendation 
of the appropriate Director, the Assistant Attorney General, Civil 
Division may delegate to United States Attorneys suit authority 
involving any claims or suits where the gross amount of the original 
claim does not exceed $5,000,000 where the circumstances warrant such 
delegations. United States Attorneys may compromise any case redelegated 
under this subsection in which the gross amount of the original claim 
does not exceed $5,000,000, so long as the difference between the gross 
amount of the original claim and the proposed settlement does not exceed 
$1,000,000. United States Attorneys may close cases redelegated to them 
under this subsection only upon the authorization of the appropriate 
authorized person within the Department of Justice. All delegations 
pursuant to this subsection shall be in writing and no United States 
Attorney shall have authority to compromise or close any such delegated 
case or claim except as is specified in the required written delegation 
or in section 1(c) of this directive. The limitations of section 1(e) of 
this directive also remain applicable in any case or claim delegated 
hereunder.
    (c) Cases not covered. Regardless of the amount in controversy, the 
following matters normally will not be delegated to United States 
Attorneys for handling but will be personally or jointly handled or 
monitored by the appropriate Branch or Office within the Civil Division:
    (1) Civil actions in the Court of Federal Claims.
    (2) Cases within the jurisdiction of the Commercial Litigation 
Branch involving patents, trademarks, copyrights, etc.
    (3) Cases before the United States Court of International Trade.
    (4) Any case involving bribery, conflict of interest, breach of 
fiduciary duty, breach of employment contract, or exploitation of public 
office.
    (5) Any fraud or False Claims Act case where the amount of single 
damages, plus civil penalties, if any, exceeds $1,000,000.
    (6) Any case involving vessel-caused pollution in navigable waters.
    (7) Cases on appeal, except as determined by the Director of the 
Appellate Staff.
    (8) Any case involving litigation in a foreign court.
    (9) Criminal proceedings arising under statutes enforced by the Food 
and Drug Administration, the Consumer Product Safety Commission, the 
Federal Trade Commission, and the National Highway Traffic Safety 
Administration (relating to odometer tampering), except as determined by 
the Director of the Office of Consumer Litigation.
    (10) Nonmonetary civil cases, including injunction suits, 
declaratory judgment actions, and applications for inspection warrants, 
and cases seeking civil penalties including but not limited to those 
arising under statutes enforced by the Food and Drug Administration, the 
Consumer Product Safety Commission, the Federal Trade Commission, and 
the National Highway Traffic Safety Administration (relating to odometer 
tampering), except as determined by the Director of the Office of 
Consumer Litigation.
    (11) Administrative claims arising under the Federal Tort Claims 
Act.

[[Page 81]]

                      Section 5. Adverse Decisions

    All final judicial decisions adverse to the Government involving any 
direct reference or delegated case must be reported promptly to the 
Assistant Attorney General, Civil Division, attention Director, 
Appellate Staff. Consult title 2 of the United States Attorney's Manual 
for procedures and time limitations. An appeal cannot be taken without 
approval of the Solicitor General. Until the Solicitor General has made 
a decision whether an appeal will be taken, the Government attorney 
handling the case must take all necessary procedural actions to preserve 
the Government's right to take an appeal, including filing a protective 
notice of appeal when the time to file a notice of appeal is about to 
expire and the Solicitor General has not yet made a decision. Nothing in 
the foregoing directive affects this obligation.

                         Section 6. Supersession

    This directive supersedes Civil Division Directive No. 176-91 
regarding redelegation of the Assistant Attorney General's authority in 
Civil Division cases to Branch Directors, heads of offices and United 
States Attorneys.

                        Section 7. Applicability

    This directive applies to all cases pending as of the date of this 
directive and is effective immediately.

[60 FR 17457, Apr. 6, 1995]

                            Criminal Division

                             [Memo No. 375]

Standards And Procedures With Respect To Criminal Prosecutions Involving 
           Certain Agricultural Marketing Quota Penalty Cases

    By virtue of the authority vested in me by part 0 of title 28 of the 
Code of Federal Regulations, particularly Secs. 0.55, 0.160, 0.162, 
0.164, 0.166, and 0.168, it is hereby ordered as follows:
    Section 1. Purpose. The purpose of this Memorandum is to prescribe 
standards and procedures for U.S. Attorneys with respect to the handling 
of the criminal aspects of agricultural marketing quota penalty cases 
which are submitted to the U.S. Attorneys by direct referral from the 
attorney in charge of the local office of the General Counsel of the 
Department of Agriculture (hereinafter in this Memorandum referred to as 
the General Counsel). Supplement No. 1 of October 26, 1955, to 
Memorandum No. 119 is hereby superseded. Attention is invited to the 
fact that Memorandum No. 374, of June 3, 1964, which superseded 
Memorandum No. 119 of December 8, 1954, deals with the civil aspects of 
agricultural marketing quota penalty cases.
    Sec. 2. Scope of authority. (a) The authority conferred by this 
Memorandum is applicable to alleged criminal violations involving the 
provisions of the Agricultural Adjustment Act of 1938, as amended (7 
U.S.C. 1311-1376), in cases in which the gross amount involved does not 
exceed $5,000.
    (b) Matters involving alleged criminal violations of the 
Agricultural Adjustment Act of 1938, as amended, shall be referred 
directly to the U.S. Attorney concerned by the attorney in charge of the 
local office of the General Counsel which has jurisdiction over any such 
matter requiring action. U.S. Attorneys may initiate criminal 
prosecution or decline to do so as they, in their judgment, may deem 
appropriate. U.S. Attorneys are, of course, urged to obtain the advice 
and assistance of this Department whenever they feel that such advice 
and assistance might be helpful.
    Sec. 3. Correspondence--(a) With the Department of Justice. 
Inquiries to the Department concerning any matters covered by this 
Memorandum should be directed to the attention of the Assistant Attorney 
General in charge of the Criminal Division (hereinafter in this 
Memorandum referred to as the Assistant Attorney General). Any such 
inquiry should be accompanied by copies of all pertinent correspondence 
and other documents, including the indictment if one shall have been 
returned, since files concerning these matters will not be maintained in 
Washington.
    (b) With the Department of Agriculture. Correspondence calling for 
additional factual details, and requests for investigations, documents, 
witnesses, and similar matters, should be directed to the General 
Counsel's attorney in charge who originated the matter. However, only 
the U.S. Attorney and his duly appointed assistants are authorized to 
exercise any control whatsoever over the handling of any such matter 
referred to the U.S. Attorney for action. The U.S. Attorney is charged 
with the entire responsibility for the manner in which such matters are 
handled.
    Sec. 4. Closing of the Prosecution. (a) U.S. Attorneys may decline 
to prosecute any case involving a matter covered by this Memorandum 
without prior consultation or approval of the Assistant Attorney 
General. If, however, prosecution has been initiated by way of 
indictment or information, the indictment or information shall not be 
dismissed until authority to do so has been obtained from the Assistant 
Attorney General or his representative unless the reason for the 
dismissal is one which does not necessitate the prior approval of the 
Criminal Division. (See U.S. Attorneys' Manual, title 2: Criminal 
Division, pages 18-20.)
    (b) In each instance in which a case is closed by a U.S. Attorney 
and in which prior approval of the Assistant Attorney General

[[Page 82]]

or his representative has not been obtained, a memorandum shall be 
prepared and placed in the file describing the action taken and the 
reasons therefor.
    Sec. 5. Appeals. The instructions existing with reference to 
criminal appeals shall govern appeals in cases covered by this 
Memorandum.

[29 FR 7423, June 9, 1964]

                            [Directive No. 1]

    Editorial Note: Criminal Division, Directive No. 1, was superseded 
by Criminal Division, Directive No. 2, appearing at 43 FR 50677, Oct. 
31, 1978.

                            [Directive No. 2]

    Editorial Note: Criminal Division, Directive No. 2, was superseded 
by Criminal Division, Directive No. 116, appearing at 48 FR 50713, Nov. 
3, 1983.

                  [Attorney General Order No. 1598-92]

Redelegations of Authority to United States Attorneys, Deputy Assistant 
   Attorneys General, Section Chiefs, and Director, Asset Forfeiture 
                    Office, in the Criminal Division

    By virtue of the authority vested in me by part 0 of title 28 of the 
Code of Federal Regulations, as amended, particularly Secs. 0.160, 
0.162, 0.164, 0.168 and 0.171, it is hereby ordered as follows:
    (a)(1) Each U.S. Attorney is authorized in cases delegated to the 
Assistant Attorney General of the Criminal Division--
    (A) To accept or reject offers in compromise of--
    (i) Claims in behalf of the United States in all cases (other than 
forfeiture cases) in which the original claim did not exceed $500,000, 
and in all cases in which the original claim was between $500,000 and 
$5,000,000, so long as the difference between the gross amount of the 
original claim and the proposed settlement does not exceed 15 percent of 
the original claim; and in all civil or criminal forfeiture cases, 
except that the U.S. Attorney shall consult with the Asset Forfeiture 
Office of the Criminal Division before accepting offers in compromise or 
plea offers in forfeiture cases in which the orignial claim was 
$5,000,000 or more, and in forfeiture cases in which the original claim 
was between $500,000 and $5,000,000, when the difference between the 
gross amount of the original forfeiture sought and the proposed 
settlement exceeds 15 percent of the original claim; and
    (ii) Claims against the United States in all cases, or in 
administrative actions to settle, in which the amount of the proposed 
settlement does not exceed $500,000; and
    (B) To close (other than by compromise or entry of judgment) claims 
asserted by the United States in all cases (other than forfeiture cases) 
in which the gross amount of the original claim does not exceed 
$500,000, and in all civil or criminal forfeiture cases, except that the 
U.S. Attorney shall consult with the Asset Forfeiture Office of the 
Criminal Division before closing a forfeiture case in which the gross 
amount of the original forfeiture sought is $500,000 or more.
    (2) This subsection does not apply--
    (A) When, for any reason, the compromise or closing of a particular 
claim (other than a forfeiture case) will, as a practical matter, 
control or adversely influence the disposition of other claims, which, 
when added to the claim in question, total more than the respective 
amounts designated above;
    (B) When the U.S. Attorney is of the opinion that because of a 
question of law or policy presented, or for any other reason, the matter 
should receive the personal attention of the Assistant Attorney General;
    (C) When a settlement converts into a mandatory duty the otherwise 
discretionary authority of an agency or department to revise, amend, or 
promulgate regulations;
    (D) When a settlement commits a department or agency to expend funds 
that Congress has not appropriated and that have not been budgeted for 
the action in question, or commits a department or agency to seek a 
particular appropriation or budget authorization; or
    (E) When a settlement limits the discretion of a Secretary or agency 
administrator to make policy or managerial decisions committed to the 
Secretary or agency administrator by Congress or by the Constitution.
    (b) Notwithstanding the provisions of this Order, the Assistant 
Attorney General of the Criminal Division may delegate to U.S. Attorneys 
authority to compromise or close other cases, including those involving 
amounts greater than as set forth in paragraph (a) above, and up to the 
maximum limit of his authority, where the circumstances warrant such 
delegation.
    (c) All other authority delegated to me by Secs. 0.160, 0.162, 0.164 
and 0.171 of title 28 of the Code of Federal Regulations not falling 
within the limitations of paragraph (a) of this Order is hereby 
redelegated to Section Chiefs in the Criminal Division, except that--
    (1) The authority delegated to me by Secs. 0.160, 0.162, 0.164 and 
0.171 of that title relating to conducting, handling, or supervising 
civil and criminal forfeiture litigation (other than bail bond 
forfeiture), including acceptance or denial of petitions for remission 
or mitigation of forfeiture, is hereby redelegated to the Director of 
the Asset Forfeiture Office; and
    (2) When a Section Chief or the Director of the Asset Forfeiture 
Office is of the opinion that because of a question of law or policy 
presented, or for any other reason, a matter described in paragraph (c) 
should receive the

[[Page 83]]

personal attention of a Deputy Assistant Attorney General or Assistant 
Attorney General, he shall refer the matter to the appropriate Deputy 
Assistant Attorney General or to the Assistant Attorney General.
    (d) Notwithstanding any of the above redelegations, when the agency 
or agencies involved have objected in writing to the proposed closing or 
dismissal of a case, or to the acceptance or rejection of an offer in 
compromise, any such unresolved objection shall be referred to the 
Assistant Attorney General for resolution.

[Order No. 1598-92, 57 FR 30396, July 9, 1992]

                   Land and Natural Resources Division

                             [Memo. No. 388]

    Editorial Note: Land and Natural Resources Division, Memo No. 388, 
was superseded by Land and Natural Resources Division, Directive No. 7-
76, appearing at 41 FR 53660, Dec. 8, 1976.

                          [Directive No. 4-72]

    Editorial Note: Land and Natural Resources Division, Directive No. 
4-72, was superseded by Land and Natural Resources Division, Directive 
No. 7-76, appearing at 41 FR 53660, Dec. 8, 1976.

                          [Directive No. 5-72]

    Editorial Note: Land and Natural Resources Division, Directive No. 
5-72, was superseded by Land and Natural Resources Division, Directive 
No. 7-76, appearing at 41 FR 53660, Dec. 8, 1976.

                          [Directive No. 7-76]

Redelegation Of Authority To Initiate And To Compromise Land And Natural 
                        Resources Division Cases

    This directive supersedes Land and Natural Resources Memorandum No. 
388 (appendix to subpart Y) and Directives Nos. 4-72 and 5-72. By virtue 
of the authority vested in me by part 0 of title 28 of the Code of 
Federal Regulations, and particularly Secs. 0.65, 0.160, 0.162, 0.164, 
0.166, and 0.168 thereof, I hereby redelegate to the Deputy Assistant 
Attorney General, certain Section Chiefs, and to the United States 
Attorneys, the following authority to act in connection with, and to 
compromise, Land and Natural Resources Division cases:

                 Section I--Authority To Initiate Cases

    A. Delegation to United States Attorneys--1. Land Cases. United 
States Attorneys are hereby authorized to act in matters concerning real 
property of the United States, including tribal and restricted 
individual Indian land, not involving new or unusual questions or 
questions of title or water rights, on behalf of any other department or 
agency in response to a direct request in writing from an authorized 
field officer of the department or agency concerned, without prior 
authorization from the Land and Natural Resources Division, in the 
following-described cases:
    (a) Actions to recover possession of property from tenants, 
squatters, trespassers, or others, and actions to enjoin trespasses on 
Federal property;
    (b) Actions to recover damages resulting from trespasses when the 
amount of the claim for actual damage based upon an innocent trespass 
does not exceed $200,000 (The United States Attorneys may seek recovery 
of amounts exceeding $200,000 (i) if the actual damages are $200,000 or 
less and State statutes permit the recovery of multiple damages, e.g., 
double or treble, for either a willful or an innocent trespass; or (ii) 
if the actual damages are $200,000 or less, but the action is for 
conversion to obtain recovery of the enhanced value of property severed 
and removed in the trespass);
    (c) Actions to collect delinquent rentals or damages for use and 
occupancy of not more than $200,000;
    (d) Actions to collect costs of forest fire suppression and other 
damages resulting from such fires if the total claim does not exceed 
$200,000;
    (e) Actions to collect delinquent operation and maintenance charges 
accruing on Indian irrigation projects and federal reclamation projects 
of not more than $200,000; and
    (f) Actions to collect loans of money or livestock made by the 
United States to individual Indians without limitation on amount, 
including loans made by Indian tribal organizations to individual 
Indians if the loan agreements, notes and securities have been assigned 
by the tribal organizations to the United States.
    2. Environmental cases. Pursuant to paragraph 10 of the memorandum 
of understanding between the Department of Justice and the Environmental 
Protection Agency (42 FR 48942) with respect to the handling of 
litigation to which the Environmental Protection Agency is a party, all 
requests of the Environmental Protection Agency for litigation must be 
submitted by the Agency through its General Counsel or its Assistant 
Administrator for Enforcement to the Assistant Attorney General, except 
that matters requiring an immediate temporary restraining order may be 
submitted by regional Administrators of the Environmental Protection 
Agency simultaneously to a U.S. Attorney and the Assistant Attorney 
General. Consequently, except for matters requiring an immedate 
temporary restraining order, U.S. Attorneys are not authorized to accept 
on a direct reference basis any matters or cases

[[Page 84]]

originating in any office of the Environmental Protection Agency.
    U.S. Attorneys are authorized to act, without prior authorization 
from the Land and Natural Resources Division, on behalf of Federal 
departments or agencies other than the Environmental Protection Agency, 
in response to a direct request in writing from an authorized field 
officer of the department or agency concerned, in the following 
environmental cases:
    (a) Civil or criminal actions involving the filling or the deposit 
of dredged or fill material upon, or the alteration of the channels of, 
the waters of the United States, in violation of section 10 of the River 
and Harbor Act of March 3, 1899 (33 U.S.C. 403), or of section 404 of 
the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 
1344), or of both statutes;
    (b) Civil or criminal actions involving the discharge of refuse into 
the navigable waters of the United States, and, in certain cases, their 
tributaries, in violation of section 13 of the Act of March 3, 1899 (33 
U.S.C. 407), except for
    (i) In rem actions against vessels, which actions shall continue to 
be handled in the manner set forth in departmental memorandums 374 and 
376, dated June 3, 1964, and shall continue to be under the jurisdiction 
of the Civil Division; and
    (ii) Criminal actions involving the discharge either of oil or of 
hazardous substances, for which discharge a government agency either has 
imposed a civil penalty pursuant to section 311(b)(6) of the Federal 
Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1321(b)(6)), 
or has under consideration the imposition of such a penalty.
    3. Notification to Division of Direct Referral. In each case 
referred to the United States Attorneys pursuant to the authority set 
forth in Subparagraphs 1 and 2 above, the United States Attorney shall, 
prior to taking action, assure that a copy of the authorized field 
officer's written request has been forwarded to the Assistant Attorney 
General, Land and Natural Resources Division, Department of Justice, 
Washington, DC, 20530.

      Section II--Authority To Compromise, Dismiss, or Close Cases

    A. Delegation to Deputy Assistant Attorney General. Subject to the 
limitations imposed by Paragraph D of this Section, the Deputy Assistant 
Attorney General in the Land and Natural Resources Division is hereby 
authorized, with respect to matters assigned to the Land and Natural 
Resources Division, to accept or reject offers in compromise of claims 
against the United States in which the amount of the proposed settlement 
does not exceed $500,000, and of claims in behalf of the United States 
in which the gross amount of the original claim does not exceed 
$500,000.
    B. Delegation to Section Chiefs. Subject to the limitations imposed 
by Paragraph D of this Section, the Chiefs of the Land Acquisition, 
Indian Claims, Pollution Control, Indian Resources, and General 
Litigation Sections of the Land and Natural Resources Division are 
hereby authorized, with respect to matters assigned to their respective 
sections, to accept or reject offers in compromise of claims against the 
United States in which the amount of the proposed settlement does not 
exceed $300,000, and of claims in behalf of the United States in which 
the gross amount of the original claim does not exceed $300,000.
    C. Delegations to United States Attorneys--1. Compromise of land 
cases. Subject to the limitations imposed by paragraph D of this 
section, U.S. Attorneys are authorized, without the prior approval of 
the Land and Natural Resources Division, to accept or reject offers in 
compromise in the direct referral land cases listed in subparagraph A-1 
of section I, and in claims against the United States in which the 
amount of the proposed settlement does not exceed $200,000, if the 
authorized field officer of the interested agency concurs in writing, 
except that where the United States is a plaintiff, a U.S. Attorney may 
accept an offer without the concurrence of the field officer if the 
acceptance is based solely upon the financial circumstances of the 
debtor.
    2. Compromise of environmental cases. Prior delegations of authority 
to the U.S. Attorneys to settle any type of case in which the Department 
of Justice represents the Environmental Protection Agency, or the 
Administrator or any other official of that Agency, are hereby revoked; 
all offers in compromise of such cases shall be submitted to the 
Assistant Attorney General of the Land and Natural Resources Division, 
for appropriate action.
    3. Compromise of Condemnation Cases. (a) Subject to the limitations 
imposed in Paragraph D of this section, United States Attorneys are 
hereby authorized, without the prior approval of the Land and Natural 
Resources Division, to accept or reject offers in compromise of claims 
against the United States for just compensation in condemnation 
proceedings in any case in which
    (i) The gross amount of the proposed settlement does not exceed 
$100,000; and
    (ii) The settlement is approved in writing (the written approval to 
be retained in the file of the United States Attorney concerned) by the 
authorized field representative of the acquiring agency if the amount of 
the settlement exceeds the amount deposited with the declaration of 
taking as to the particular tract of land involved; and
    (iii) The amount of the settlement is compatible with the sound 
appraisal, or appraisals, upon which the United States would rely as 
evidence in the event of trial, due regard

[[Page 85]]

being had for probable minimum trial costs and risks; and
    (iv) The case does not involve the revestment of any land or 
improvements or any interest, or interests, in land under the Act of 
October 21, 1942, 56 Stat. 797 (40 U.S.C. 258f). 3(b). When a United 
States Attorney has settled a condemnation proceeding under the 
authority conferred upon him by the foregoing subparagraph, he shall 
promptly secure the entry of judgment and distribution of the award, and 
shall take all other steps necessary to dispose of the matter 
completely. The United States Attorney concerned shall also immediately 
forward to the Department a report, in the form of a letter or 
memorandum, bearing his signature or showing his personal approval, 
stating the action taken and containing an adequate statement of the 
reasons therefor. In routine cases, a form, containing the minimum 
elements of the required report, may be used in lieu of a letter or 
memorandum. In any case, special care shall be taken to see that the 
report contains a statement as to what the valuation testimony of the 
United States would have been if the case had been tried.
    4. Closing or Dismissal of Matters and Cases. Subject to the 
limitations imposed in Paragraph D of this section, a direct referral 
matter described in Section I may be closed without action by the United 
States Attorney or, if filed in court, may be dismissed by him, if the 
field officer of the interested agency concurs in writing that it is 
without merit legally or factually. Except for claims on behalf of 
Indians or Indian tribes, the United States Attorney may close a claim 
without consulting the field officer of the interested agency if the 
claim is for money only and if he concludes (a) that the cost of 
collection under the circumstances would exceed the amount of the claim, 
or (b) that the claim is uncollectable. With respect to claims asserted 
by the United States on behalf of individual Indians or Indian tribes, 
the United States Attorney may close a claim without consulting the 
field officer of the interested agency if the claim is for money only 
and if he concludes that the claim is uncollectable; claims on behalf of 
Indian individuals and tribes may not be closed merely because the cost 
of collection might exceed the amount of the claim.
    D. Limitations on delegations. The authority to compromise, close or 
dismiss cases delegated by Paragraphs A, B and C of this section may not 
be exercised when,
    (a) For any reason, the compromise of a particular claim, as a 
practical matter, will control or adversely influence the disposition of 
other claims totaling more than the respective amounts designated above;
    (b) Because a novel question of law or a question of policy is 
presented, or for any other reason, the offer should, in the opinion of 
the officer or employee concerned, receive the personal attention of the 
Assistant Attorney General in charge of the Land and Natural Resources 
Division; and
    (c) The agency or agencies involved are opposed to the proposed 
closing or dismissal of a case, or acceptance or rejection of the offer 
in compromise.
    If any of the conditions listed above exist, the matter shall be 
submitted for resolution to the Assistant Attorney General in charge of 
the Land and Natural Resources Division.
    Effective date of this directive. This Directive shall be effective 
on December 8, 1976.

[41 FR 53660, Dec. 8, 1976, as amended at 43 FR 36069, Aug. 15, 1978; 51 
FR 12848, Apr. 16, 1986]

                          [Directive No. 90-50]

Redelegation of Authority To Initiate and To Compromise Environment and 
                    Natural Resources Division Cases

    Pursuant to the authority vested in me by title 28 of the Code of 
Federal Regulations, and particularly Secs. 0.65, 0.65(a), 0.160, 0.162, 
0.164, 0.166, 0.168 and 50.7 thereof, I hereby redelegate to the Section 
Chief of the Environmental Enforcement Section, the following authority 
to initiate and to compromise Environment and Natural Resources Division 
cases and to approve Federal Register Notices describing settlements of 
actions to enjoin discharges of pollutants into the environment.

                       Authority To Initiate Cases

    The Section Chief of the Environmental Enforcement Section is hereby 
authorized to initiate civil actions on behalf of any other department 
or agency in response to a written request from an authorized official 
of the department or agency concerned, under the following environmental 
statutes:
    1. Cases under section 14 of the Federal Insecticide, Fungicide, and 
Rodenticide Act, 7 U.S.C. 136l(a), section 16 of the Toxic Substances 
Control Act, 15 U.S.C. 2615(a) and section 309(g)(9) of the Clean Water 
Act, 33 U.S.C. 309(g)(9), for collection of civil penalties previously 
assessed by the Environmental Protection Agency in a formal 
administrative proceeding.
    2. Cases under sections 112 and 113 of the Clean Air Act, 42 U.S.C. 
7412 and 7413 for violations of the national emission standards for 
asbestos hazardous air pollutants.
    3. Cases under section 311 of the Clean Water Act, 33 U.S.C. 1321, 
for recovery of costs expended by the United States' to remove oil or 
hazardous substances discharged into or upon the navigable waters of the 
United States, adjoining shorelines, or into or upon the waters of the 
contiguous zone where such costs do not exceed $1 million, exclusive of 
interest.

[[Page 86]]

    4. Cases under section 104(e) of the Comprehensive Environmental 
Response, Compensation and Liability Act, 42 U.S.C. 9604(e) to enforce 
requests for access to information, entry and/or inspection and samples.
    5. Cases under section 107 of the Comprehensive Environmental 
Response, Compensation and Liability Act, 42 U.S.C. 9607, for recovery 
of costs of removal or remedial action incurred by the United States 
where such costs do not exceed $1 million, exclusive of interest.
    Any case initiation under paragraphs 1-5 above, should be referred 
to the Assistant Attorney General, Environment and Natural Resources 
Division, for approval, whenever the Section Chief of the Environmental 
Enforcement Section is of the opinion that because of a question of law 
or policy presented, or for any other reason, the matter should receive 
the attention of the Assistant Attorney General, Environment and Natural 
Resources Division.

                      Authority To Compromise Cases

    The Section Chief of the Environmental Enforcement Section is hereby 
authorized to compromise civil claims on behalf of the United States 
under the following environmental statutes:
    1. Cases under section 14 of the Federal Insecticide, Fungicide, and 
Rodenticide Act, 7 U.S.C. 1361(a), section 16 of the Toxic Substances 
Control Act, 15 U.S.C. 2615(a) and section 309(g)(9) of the Clean Water 
Act, 33 U.S.C. 309(g)(9), for collection of civil penalties previously 
assessed by the Environmental Protection Agency in a formal 
administrative proceeding.
    2. Cases under sections 112 and 113 of the Clean Air Act, 42 U.S.C. 
7412 and 7413 for violations of the national emission standards for 
asbestos hazardous air pollutants.
    3. Cases under the Safe Drinking Water Act, 42 U.S.C. 300(f) et 
seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et 
seq., the Clean Air Act, 42 U.S.C. 7401 et seq., the Clean Water Act, 33 
U.S.C. 1251 et seq., the Federal Insecticide, Fungicide and Rodenticide 
Act, 7 U.S.C. 136 et seq., and the Toxic Substances Control Act, 15 
U.S.C. 2601 et seq., where the amount of the civil penalty to be paid to 
the United States does not exceed $100,000.
    4. Cases under section 311 of the Clean Water Act, 33 U.S.C. 1321, 
for recovery of costs expended by the United States to remove oil or 
hazardous substances discharged into or upon the navigable waters of the 
United States, adjoining shorelines, or into or upon the waters of the 
contiguous zone, where such costs do not exceed $1 million, exclusive of 
interest, and the difference between the United States' claim and the 
proposed settlement does not exceed $500,000.
    5. Cases under section 104(e) of the Comprehensive Environmental 
Response, Compensation and Liability Act, 42 U.S.C. 9604(e), to enforce 
requests for access to information, entry and/or inspection and samples.
    6. Cases under section 107 of the Comprehensive Environmental 
Response, Compensation and Liability Act, 42 U.S.C. 9607, for recovery 
of costs of removal or remedial action incurred by the United States, 
where such costs do not exceed $1 million, exclusive of interest, and 
the difference between the United States' claim and the proposed 
settlement does not exceed $500,000.
    Any settlement under paragraphs 4 and 6 above, regardless of the 
amount or circumstances, should be referred to the Assistant Attorney 
General, Environment and Natural Resources Division, when for any 
reason, the compromise of a particular claim, as a practical matter, 
will control or adversely influence the disposition of other claims 
totalling more than $500,000. In addition, any settlement under 
paragraphs 1-6 above should be referred to the Assistant Attorney 
General, Environment and Natural Resources Division, whenever the 
Section Chief of the Environmental Enforcement Section is of the opinion 
that because of a question of law or policy presented, or because of 
opposition to the proposed settlement by the agency or agencies 
involved, or for any other reason, the offer should receive the personal 
attention of the Assistant Attorney General, Environment and Natural 
Resources Division.

              Authority To Approve Federal Register Notices

    The Section Chief of the Environmental Enforcement Section is hereby 
authorized to approve all Federal Register Notices under 28 CFR 50.7 and 
to transmit those notices to the Assistant Attorney General, Office of 
Legal Counsel, for publication.

   Authority of Persons Acting in the Capacity of the Section Chief, 
                    Environmental Enforcement Section

    In the event that another person is acting in the capacity of the 
Section Chief, Environmental Enforcement Section, that person will have 
the authority to initiate and to compromise cases under these 
delegations only if specifically authorized in writing by the Assistant 
Attorney General, Environment and Natural Resources Division.

                           Date of Delegations

    This Directive shall be effective December 24, 1990, and the United 
States Attorneys' Manual will be revised accordingly.

[Order No. 50-90, 55 52839, Dec. 24, 1990]

                            [Directive 1-86]

    Pursuant to the authority vested in me under 28 CFR Sec. 16.4(b) and 
Sec. 16.42(b), I delegate to the Deputy Assistant Attorney General

[[Page 87]]

who supervises the Policy, Legislation and Special Litigation Section, 
or to whoever is acting in that capacity, the authority to grant to deny 
any request for a record of the Land and Natural Resources Division made 
pursuant to the Freedom of Information Act, 5 U.S.C. 552, or the Privacy 
Act of 1974, 5 U.S.C. 552a.
    Effective Date: January 9, 1986.

[51 FR 12849, Apr. 16, 1986]

                            [Directive 6-85]

Delegation of Authority to Chief, Land Acquisition Section, to Stipulate 
  or Agree in Behalf of the United States to Exclude Property Taken on 
    Behalf of the United States by Declaration of Taking or Otherwise

    Section 258f of the Declaration of Taking Act, 40 U.S.C. 258a, et 
seq., contains the following provision:
    In any condemnation proceeding instituted by or on behalf of the 
United States, the Attorney General is authorized to stipulate or agree 
in behalf of the United States to exclude any property or any part 
thereof, or any interest therein, that may have been, or may be, taken 
by or on behalf of the United States by declaration of taking or 
otherwise.
    The foregoing authority has been delegated to the Assistant Attorney 
General, Land and Natural Resources Division, by the Attorney General, 
chapter I, part O, subpart M, Secs. 0.65 and 0.160(a)(2), title 28, Code 
of Federal Regulations.
    In view of the frequency of agency requests that this office 
stipulate or agree to exclude property or parts of property taken by 
declaration of taking or otherwise, and in the interest of efficient 
administration of the duties and responsibilities of this office, I 
hereby make the following limited delegation of authority to stipulate 
or agree to such exclusions (revestments).
    The Chief, Land Acquisition Section, is authorized to stipulate or 
agree in behalf of the United States to exclude (revest) any property or 
any part thereof, or any interest therein, that may have been, or may be 
taken by or on behalf of the United States by declaration of taking or 
otherwise, when:
    1. The exclusion (revestment) has been requested or approved in 
writing by a duly authorized officer of the agency for which the 
property was taken; and
    2. In the case of a partial exclusion (revestment) in connection 
with an overall settlement of the case, the combined amount of the 
monetary payment of compensation and the government's appraised value of 
the land to be excluded (revested) does not exceed the monetary 
limitation on the Section Chief's settlement authority; or
    3. In the case of an exclusion (revestment) that is not part of an 
overall settlement of the case, the government's appraised value of the 
land to be excluded (revested) together with any payment of compensation 
for possession and/or litigation expenses do not exceed the monetary 
limitations of the Section Chief's settlement authority.
    Provided that the delegation of settlement authority shall not 
extend to any revestment which raises precedential questions or policy 
issues. In such instances, the decision on whether to stipulate or agree 
to exclusions of property shall remain with the Assistant Attorney 
General of the Land and Natural Resources Division.
    Effective Date: February 4, 1985.

[51 FR 12849, Apr. 16, 1986]

                            [Directive 6-83]

    By virtue of the authority vested in me by part 0 of title 28, Code 
of Federal Regulations Sec. 0.65, the Section Chief of the Wildlife and 
Marine Resources Section is now authorized to rule upon petitions for 
remission or mitigation of civil or criminal forfeitures filed with the 
Attorney General pursuant to the Endangered Species Act of 1973 (16 
U.S.C. 1531-1543); the Lacey Act and related provisions (18 U.S.C. 41-
44, 47); the Airborne Hunting Act (16 U.S.C. 742j-1); the Migratory Bird 
Act (16 U.S.C. 701, et seq.); the Bald and Golden Eagle Protection Act 
(16 U.S.C. 668-668d); the Fish and Wildlife Coordination Act (16 U.S.C. 
661 et seq.); the National Wildlife Refuge System Administration Act (16 
U.S.C. 668dd, 668ee); the Magnuson Fishery Conservation and Management 
Act (16 U.S.C. 1801 et seq.); the Tuna Conventions Act (16 U.S.C. 951 et 
seq.); the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.,) the 
Sockeye Salmon or Pink Salmon Fishing Act (16 U.S.C. 776 et seq.); the 
Protection of Sea Otters on the High Seas Act (16 U.S.C. 1171 et seq.); 
the Northern Pacific Halibut Act (16 U.S.C. 772 et seq.); and the North 
Pacific Fisheries Act (16 U.S.C. 1021 et seq.).
    The Section Chief of the Wildlife and Marine Resources Section shall 
base his decision upon a review of all the pertinent facts including the 
petition for remission or mitigation, the report and recommendation of 
the appropriate United States Attorney, the report of the seizing law 
enforcement agency, and the report prepared within the Section.
    Following the adverse decision a petitioner may request the 
Assistant Attorney General for the Land and Natural Resources Division 
to review the decision of the Section Chief.
    The above directive shall be effective immediately and shall be the 
interim procedure in effect until promulgation of regulations by the 
Department of Justice which address the remission and mitigation process 
in the Land and Natural Resources Division.
    Effective Date: April 12, 1983.

[51 FR 12849, Apr. 16, 1986]

[[Page 88]]

                            [Directive 6-81]

    This directive establishes the Division's policy of notice to 
appropriate state officials of action against states. The Chief of each 
section in the Land and Natural Resources Division shall:
    1. Insure that each attorney in his or her respective section reads, 
becomes familiar with, and complies with this directive.
    2. In each suit or claim brought against state government, agencies, 
and entities;
    (a) Satisfy the Deputy Assistant Attorney General to whom the 
section reports of compliance with this directive,
    (b) Before such suit or claim is brought, advise the Attorney 
General and governor of any affected state as to the nature of the 
contemplated action and the terms of the remedy sought and
    (c) Place a memorandum in the file of the case of matter, indicating 
compliance with this directive.
    Such prior notice may:
    (1) Result in settlement of the action in advance of its filing on 
terms acceptable to the United States,
    (2) Permit the state to bring to our attention facts or issues that 
may change our outlook on the action, or
    (3) Permit the State Attorney General and the Governor to respond 
knowledgeably to inquires from local officials and the media when the 
action is commenced.
    Because the actual situation covered by this directive may vary from 
section to section, no single detailed procedure can be established but 
common sense should prevail. To that end, the state through its Attorney 
General and Governor should get fair warning and an opportunity to 
resolve the litigation. The notice should be given sufficiently in 
advance of the contemplated action to allow state officials to respond.
    Where a Section Chief believes he has good cause to seek an 
exception from the terms of this directive he should discuss the matter 
with the Deputy Assistant Attorney General to whom he or she reports.
    Effective Date: April 27, 1981.

[51 FR 12849, Apr. 16, 1986]

                              Tax Division

                           [Directive No. 27]

    Editorial Note: Tax Division, Directive No. 27, was superseded by 
Tax Division, Directive No. 28, appearing at 41 FR 53005, Dec. 3, 1976.

                           [Directive No. 28]

    Editorial Note: Tax Division, Directive No. 28, was superseded by 
Tax Division, Directive No. 31, appearing at 43 FR 36438, Aug. 17, 1978.

                             [Memo No. 391]

    Editorial Note: Tax Division Memo No. 391 was superseded by Tax 
Division Directive No. 29.

                           [Directive No. 29]

    Editorial Note: Tax Division, Directive No. 29 was superseded by Tax 
Division, Directive No. 30, appearing at 43 FR 36438, Aug. 17, 1978.

                           [Directive No. 30]

    Editorial Note: Tax Division, Directive No. 30 was superseded by Tax 
Division, Directive No. 55, appearing at 51 FR 16841, May 7, 1986.

                           [Directive No. 31]

    Editorial Note: Tax Division, Directive No. 31 was superseded by Tax 
Division, Directive No. 36, appearing at 45 FR 20799, Mar. 31, 1980.

                           [Directive No. 36]

    Editorial Note: Tax Division, Directive No. 36 was superseded by Tax 
Division, Directive No. 40, appearing at 45 FR 81201, Dec. 10, 1980 and 
redesignated as Directive No. 41 appearing at 46 FR 52352, Oct. 27, 
1981.

                           [Directive No. 41]

    Editorial Note: Tax Division, Directive No. 41 was superseded by Tax 
Division, Directive No. 42, appearing at 47 FR 44254, Oct. 7, 1982.

                           [Directive No. 42]

    Editorial Note: Tax Division, Directive No. 42 was superseded by Tax 
Division, Directive No. 43, appearing at 48 FR 16674, Apr. 19, 1983.

                           [Directive No. 43]

    Editorial Note: Tax Division, Directive No. 43 was superseded by Tax 
Division, Directive No. 45, appearing at 48 FR 25183, June 6, 1983, 
corrected at 48 FR 28634, June 23, 1983.

                           [Directive No. 45]

    Editorial Note: Tax Division, Directive No. 45 was superseded by Tax 
Division Directive No. 47, appearing at 49 FR 12247, Mar. 29, 1984.

                           [Directive No. 47]

    Editorial Note: Tax Division, Directive No. 47 was superseded by Tax 
Division Directive No. 54, appearing at 51 FR 16842, May 7, 1986.

[[Page 89]]

                           [Directive No. 54]

    Editorial Note: Tax Division, Directive No. 54 was superseded by Tax 
Division Directive No. 82, appearing at 55 FR 22901, June 5, 1990.

                           [Directive No. 55]

    Editorial Note: Tax Division, Directive No. 55 was superseded by Tax 
Division Directive No. 83, appearing at 55 FR 22902, June 5, 1990.

                           [Directive No. 83]

    By virtue of the authority vested in me by part 0 of title 28 of the 
Code of Federal Regulations, particularly sections 0.70, 0.160, 0.162, 
0.164, 0.166, and 0.168, it is hereby ordered as follows:
    Section 1. The U.S. Attorney for each district in which is located 
real property, which is subject to a right of redemption of the United 
States in respect of Federal tax liens, arising under section 2410(c) of 
title 28 of the United States Code, or under State law when the United 
States has been joined as a party to a suit, is authorized to release 
the right of redemption, subject to the following limitations and 
conditions--
    (1) This redelegation of authority relates only to real property on 
which is located only one single-family residence, and to all other real 
property having a fair market value not exceeding $200,000. That 
limitation as to value or use shall not apply in those cases in which 
the release is requested by the Department of Veterans Affairs or any 
other Federal agency.
    (2) The consideration paid for the release must be equal to the 
value of the right of redemption, or fifty dollars ($50), whichever is 
greater. However, no consideration shall be required for releases issued 
to the Department of Veterans Affairs or any other Federal agency.
    (3) The following described documents must be placed in the U.S. 
Attorney's file in each case in which a release is issued--
    (A) Appraisals by two disinterested and well-qualified persons. In 
those cases in which the applicant is a Federal agency, the appraisal of 
that agency may be substituted for the two appraisals generally 
required.
    (B) Such other information and documents as the Tax Division may 
prescribe.
    Section 2. This directive supersedes Tax Division Directive No. 55, 
effective May 7, 1986.
    Section 3. This directive shall become effective on the date of its 
publication in the Federal Register.

[55 FR 22902, June 5, 1990]

                           [Directive No. 105]

    By virtue of the authority vested in me by Part 0 of Title 28 of the 
Code of Federal Regulations, particularly Sections 0.70, 0.160, 0.162, 
0.164, 0.166, and 0.168, It Is Hereby Ordered As Follows:
    Section 1. The Chiefs of the Civil Trial Sections, the Court of 
Federal Claims Section, and the Appellate Section are authorized to 
reject offers in compromise, regardless of amount, provided that such 
action is not opposed by the agency or agencies involved.
    Section 2. Subject to the conditions and limitations set forth in 
Section 8 hereof, the Chiefs of the Civil Trial Sections and the Court 
of Federal Claims Section are authorized to:
    (A) Accept offers in compromise in all civil cases, other than:
    (i) Cases involving liability under Section 6672 of the Internal 
revenue Code; and
    (ii) Cases in which judgments in favor of the United States have 
been entered, in which the amount of the Government's concession, 
exclusive of statutory interest, does not exceed $300,000;
    (B) Approve administrative settlements of civil claims against the 
United States in all cases, other than cases involving liability under 
Section 6672 of the Internal Revenue Code, in which the amount of the 
Government's concession, exclusive of statutory interest, does not 
exceed $200,000;
    (C) Approve concessions (other than by compromise) of civil claims 
asserted by the United States in all cases, other than cases involving 
liability under Section 6672 of the Internal Revenue Code, in which the 
gross amount of the original claim does not exceed $200,000;
    (D) In civil cases involving liability under Section 6672 of the 
Internal Revenue Code, (i) accept offers in compromise in which the 
amount of the Government's concession, exclusive of statutory interest, 
does not exceed $500,000; (ii) approve administrative settlements of 
claims against the United States in which the amount of the Government's 
concession, exclusive of statutory interest, does not exceed $350,000; 
and (iii) approve concessions (other than by compromise) of claims 
asserted by the United States in which the gross amount of the original 
claim does not exceed $350,000;
    (E) Accept offers in compromise of judgments in favor of the United 
States in all civil cases in which the amount of the Government's 
concession, exclusive of statutory interest, does not exceed $500,000;
    (F) Accept offers in compromise in injunction or declaratory 
judgment suits against the United States in which the principal amount 
of the related liability, if any, does not exceed $300,000; and

[[Page 90]]

    (G) Accept offers in compromise in all other nonmonetary cases;

provided that such action is not opposed by the agency or agencies 
involved, and provided further that the proposed compromise, 
administrative settlement, or concession is not subject to reference to 
the Joint Committee on Taxation.
    Section 3. The Chiefs of the Civil Trial Sections and the Court of 
Federal Claims Section are authorized on a case-by-case basis to 
redelegate in writing to their respective Assistant Section Chiefs or 
Reviewers the authority delegated to them in Section 1 hereof to reject 
offers, and in Section 2 hereof,
    (A) to accept offers in compromise in which the amount of the 
Government's concession, exclusive of statutory interest, does not 
exceed $100,000;
    (B) to approve administrative settlements of civil claims against 
the United States in which the amount of the Government's concession, 
exclusive of statutory interest, does not exceed $100,000; and
    (C) to approve concessions (other than by compromise) of civil 
claims asserted by the United States in which the gross amount of the 
original claim does not exceed $100,000;

provided that such redelegation is not made to the attorney-of-record in 
the case. The redelegations pursuant to this section shall be by 
memorandum signed by the Section Chief, which shall be placed in the 
Department of Justice file for the applicable case.
    Section 4. Subject to the conditions and limitations set forth in 
Section 8 hereof, the Chief of the Appellate Section is authorized to:
    (A) Accept offers in compromise with reference to litigating hazards 
of the issues on appeal in all civil cases in which the amount of the 
Government's concession, exclusive of statutory interest, does not 
exceed $300,000;
    (B) Accept offers in compromise in declaratory judgment suits 
against the United States in which the principal amount of the related 
liability, if any, does not exceed $300,000; and
    (C) Accept offers in compromise in all other nonmonetary cases which 
do not involve issues concerning collectibility;

provided that (i) such acceptance is not opposed by the agency or 
agencies involved or the chief of the section in which the case 
originated, and (ii) the proposed compromise is not subject to reference 
to the Joint Committee on Taxation.
    Section 5. Subject to the conditions and limitations set forth in 
Section 8 hereof, the Chief of the Office of Review is authorized to:
    (A) Accept offers in compromise of claims against the United States 
in all civil cases in which the amount of the Government's concession, 
exclusive of statutory interest, does not exceed $1,500,000;
    (B) Accept offers in compromise of claims on behalf of the United 
States in all civil cases in which the difference between the gross 
amount of the original claim and the proposed settlement does not exceed 
$1,500,000 or 15 percent of the original claim, whichever is greater;
    (C) Approve administrative settlements of civil claims against the 
United States in all cases in which the amount of the Government's 
concession, exclusive of statutory interest, does not exceed $1,000,000;
    (D) Approve concessions (other than by compromise) of civil claims 
asserted by the United States in all cases in which the gross amount of 
the original claim does not exceed $1,000,000;
    (E) Accept offers in compromise in all nonmonetary cases; and
    (F) Reject offers in compromise or disapprove administrative 
settlements or concessions, regardless of amount,

provided that such action is not opposed by the agency or agencies 
involved or the chief of the section to which the case is assigned, and 
provided further that the proposed compromise, administrative 
settlement, or concession is not subject to reference to the Joint 
Committee on Taxation.
    Section 6. Subject to the conditions and limitations set forth in 
Section 8 hereof, each of the Deputy Assistant Attorneys General is 
authorized to:
    (A) Accept offers in compromise of claims against the United States 
in all civil cases in which the amount of the Government's concession, 
exclusive of statutory interest, does not exceed $2,000,000;
    (B) Accept offers in compromise of claims on behalf of the United 
States in all civil cases in which the difference between the gross 
amount of the original claim and the proposed settlement does not exceed 
$2,000,000 or 15 percent of the original claim, whichever is greater;
    (C) Approve administrative settlements of civil claims against the 
United States in all cases in which the amount of the Government's 
concession does not exceed $1,500,000, exclusive of statutory interest;
    (D) Approve concessions (other than by compromise) of civil claims 
asserted by the United States in all cases in which the gross amount of 
the original claim does not exceed $1,500,000;
    (E) Accept offers in compromise in all nonmonetary cases; and
    (F) Reject offers in compromise or disapprove administrative 
settlements or concessions, regardless of amount,

provided that such action is not opposed by the agency or agencies 
involved and the proposed compromise, administrative settlement, or 
concession is not subject to reference to the Joint Committee on 
Taxation.

[[Page 91]]

    Section 7. Subject to the conditions and limitations set forth in 
Section 8 hereof, United States Attorneys are authorized to:
    (A) Reject offers in compromise of judgments in favor of the United 
States, regardless of amount;
    (B) Accept offers in compromise of judgments in favor of the United 
States where the amount of the judgment does not exceed $300,000; and
    (C) Terminate collection activity by his or her office as to 
judgments in favor of the United States which do not exceed $300,000 if 
the United States Attorney concludes that the judgment is uncollectible;

provided that such action has the concurrence in writing of the agency 
or agencies involved, and provided further that this authorization 
extends only to judgments which have been formally referred to the 
United States Attorney for collection.
    Section 8. The authority redelegated herein shall be subject to the 
following conditions and limitations:
    (A) When, for any reason, the compromise, administrative settlement, 
or concession of a particular claim, as a practical matter, will control 
or adversely influence the disposition of other claims totalling more 
than the respective amounts designated in Sections 2, 3, 4, 5, 6, and 7 
hereof, the case shall be forwarded for review at the appropriate level 
for the cumulative amount of the affected claims;
    (B) When, because of the importance of a question of law or policy 
presented, the position taken by the agency or agencies or by the United 
States Attorney involved, or any other considerations, the person 
otherwise authorized herein to take final action is of the opinion that 
the proposed disposition should be reviewed at a higher level, the case 
shall be forwarded for such review;
    (C) If the Department has previously submitted a case to the Joint 
Committee on Taxation leaving one or more issues unresolved, any 
subsequent compromise, administrative settlement, or concession in that 
case must be submitted to the Joint Committee, whether or not the 
overpayment exceeds the amount specified in Section 6405 of the Internal 
Revenue Code;
    (D) Nothing in this Directive shall be construed as altering any 
provision of Subpart Y of Part O of Title 28 of the Code of Federal 
Regulations requiring the submission of certain cases to the Attorney 
General, the Associate Attorney General, or the Solicitor General.
    (E) Authority to approve recommendations that the Government confess 
error or make administrative settlements in cases on appeal is excepted 
from the foregoing redelegations; and
    (F) The Assistant Attorney General, at any time, may withdraw any 
authority delegated by this Directive as it relates to any particular 
case or category of cases, or to any part thereof.
    Section 9. This Directive supersedes Tax Division Directive No. 95, 
effective February 21, 1992.
    Section 10. This Directive is effective on June 14, 1995.

[60 FR 31244, June 14, 1995]

                   Attorney General Order No. 1147-86

    By virtue of the authority vested in the Attorney General by 18 
U.S.C. 2254, the Attorney General hereby designates the Postal Service 
with the authority to conduct civil forfeitures under section 2254 of 
the Protection of Childern Against Sexual Exploitation Act, as amended 
by the Child Protection of 1984, 18 U.S.C. 2251-2255.
    In utilizing the authority hereby granted, all rules, regulations, 
and procedures of the Federal Bureau of Investigation relating to the 
aforementioned Act must be followed, including the Federal Bureau of 
Investigation's Manual of Investigative Operations and Guidelines.
    The authority hereby granted to enforce section 2254 of the 
Protection of Children Against Sexual Exploitation Act, as amended by 
the Child Protection Act of 1984, is subject to the direction of the 
Attorney General.

[Order No. 1148-86, 51 FR 31940, Sept. 8, 1986]



 Subpart Z--Assigning Responsibility Concerning Applications for Orders 
       Compelling Testimony or Production of Evidence by Witnesses



Sec. 0.175  Judicial and administrative proceedings.

    (a) The Assistant Attorney General in charge of the Criminal 
Division, or any Deputy Assistant Attorney General of the Criminal 
Division is authorized to exercise the authority vested in the Attorney 
General by 18 U.S.C. 6003, to approve the application of a U.S. Attorney 
to a Federal court for an order compelling testimony or the production 
of information by a witness in any proceeding before or ancillary to a 
court or grand jury of the United States, and the authority vested in 
the Attorney General by 18 U.S.C. 6004, to approve the issuance by an 
agency of the United States of an order compelling testimony or the 
production of information by a witness in a proceeding before the 
agency, when the subject

[[Page 92]]

matter of the case or proceeding is either within the cognizance of the 
Criminal Division or is not within the cognizance of the Divisions or 
Administration designated in paragraphs (b) and (c) of this section.
    (b) The Assistant Attorneys General or any Deputy Assistant Attorney 
General of the Antitrust Division, the Civil Division, the Civil Rights 
Division, the Land and Natural Resources Division and the Tax Division 
are authorized to exercise the power and authority vested in the 
Attorney General by 18 U.S.C. 6003 to approve the application of a U.S. 
Attorney to a Federal court for an order compelling testimony or the 
production of information in any proceeding before or ancillary to a 
court or grand jury of the United States when the subject matter of the 
case or proceeding is within the cognizance of their respective 
Divisions: Provided, however, That no approval shall be granted unless 
the Criminal Division indicates that it has no objection to the proposed 
grant of immunity.
    (c) The Assistant Attorneys General and Deputy Assistant Attorneys 
General designated in paragraph (b) of this section, and the 
Administrator of the Drug Enforcement Administration are authorized to 
exercise the authority vested in the Attorney General by 18 U.S.C. 6004 
to approve the issuance by an agency of the United States of an order 
compelling testimony or the production of information by a witness in a 
proceeding before the agency when the subject matter of the proceeding 
is within the cognizance of their respective Divisions or the 
Administration: Provided, however, That no approval shall be granted 
unless the Criminal Division indicates that it has no objection to the 
proposed grant of immunity.

[Order No. 1310-88, 54 FR 297, Jan. 5, 1989]



Sec. 0.176   Congressional proceedings.

    (a) A notice of an intention to request an order from a district 
court compelling testimony or the production of information in a 
congressional proceeding when submitted to the Attorney General by 
either House of Congress or a committee or a subcommittee of the 
Congress pursuant to 18 U.S.C. 6005 shall be referred to the Assistant 
Attorney General of the Division or the Administrator of the 
Administration having cognizance of the subject matter of the 
proceedings: Provided, however, That either the notice or a copy thereof 
shall in any event be referred to the Assistant Attorney General in 
charge of the Criminal Division.
    (b) The Assistant Attorneys General and Deputy Assistant Attorneys 
General designated in Sec. 0.175 (a) and (b) are authorized to exercise 
the power and authority vested in the Attorney General by 18 U.S.C. 6005 
to apply to a district court of the United States to defer the issuance 
of an order compelling the testimony of a witness or the production of 
information in a proceeding before either House of Congress, or any 
committee or subcommittee of either House, or any joint committee of the 
two Houses.

[Order No. 445-70, 35 FR 19397, Dec. 23, 1970, as amended by Order No. 
520-73, 38 FR 18381, July 10, 1973; Order No. 960-81, 46 FR 52353, Oct. 
27, 1981; Order No. 1310-88, 54 FR 298, Jan. 5, 1989]



Sec. 0.177   Applications for orders under the Comprehensive Drug Abuse Prevention and Control Act.

    Notwithstanding the delegation of functions contained in subpart R 
of this part, the Assistant Attorney General in charge of the Criminal 
Division is authorized to exercise the authority vested in the Attorney 
General by section 514 of the Comprehensive Drug Abuse Prevention and 
Control Act of 1970, 84 Stat. 1276, to approve the application of a U.S. 
Attorney to a Federal court for an order compelling testimony or the 
production of information in any proceeding before a court or grand jury 
of the United States. Immunity shall be granted in agency proceedings 
under that Act only with the concurrence of the Assistant Attorney 
General in charge of the Criminal Division.

[Order No. 445-70, 35 FR 19397, Dec. 23, 1970]



Sec. 0.177a  Antitrust civil investigative demands.

    The Assistant Attorney General in charge of the Antitrust Division 
is authorized to issue orders pursuant to section 6004 of title 18, 
United States

[[Page 93]]

Code, to compel testimony in response to antitrust civil investigative 
demands for oral testimony. Issuance of such orders shall be subject to 
the concurrence of the Assistant Attorney General in charge of the 
Criminal Division.

[Order No. 753-77, 42 FR 56730, Oct. 28, 1977]



Sec. 0.178   Redelegation of authority.

    The Administrator of the Drug Enforcement Administration is 
authorized to redelegate the authority delegated by this subpart to the 
Deputy Administrator of DEA, to be exercised solely during the absence 
of the Administrator from the City of Washington.

[Order No. 445-70, 35 FR 19397, Dec. 23, 1970, as amended by Order No. 
520-73, 38 FR 18381, July 10, 1973; Order No. 960-81, 46 FR 52354, Oct. 
27, 1981; Order No. 1310-88, 54 FR 298, Jan. 5, 1989]



Subpart Z-1--Prosecutions for Obstruction of Justice and Related Charges



Sec. 0.179   Scope.

    This subpart applies to the following matters:
    (a) Obstruction of justice and obstruction of a criminal 
investigation (18 U.S.C. 1501-1511);
    (b) Perjury and subornation of perjury (18 U.S.C. 1621, 1622);
    (c) False declarations before a grand jury or court (18 U.S.C. 
1623);
    (d) Fraud and false statements in matters within the jurisdiction of 
a government agency (18 U.S.C. 1001); and
    (e) Conspiracy to defraud the United States (18 U.S.C. 371).

[Order No. 630-75, 40 FR 53390, Nov. 18, 1975]



Sec. 0.179a   Enforcement responsibilities.

    (a) Matters involving charges of obstruction of justice, perjury, 
fraud or false statement, as described in Sec. 0.179, shall be under the 
supervisory jurisdiction of the Division having responsibility for the 
case or matter in which the alleged obstruction occurred. The Assistant 
Attorney General in charge of each Division shall have full authority to 
conduct prosecution of such charges, including authority to appoint 
special attorneys to present evidence to grand juries. However, such 
enforcement shall be preceded by consultation with the Assistant 
Attorney General in charge of the Criminal Division, to determine the 
appropriate supervisory jurisdiction. (See 38 CFR 0.55(p).)
    (b) In the event the Assistant Attorney General in charge of the 
Division having responsibility for the case or matter does not wish to 
assume supervisory jurisdiction he shall refer the matter to the 
Assistant Attorney General in charge of the Criminal Division for 
handling by that Division.

[Order No. 630-75, 40 FR 53390, Nov. 18, 1975]



               Subpart AA--Orders of the Attorney General

    Source: Order No. 460-71, 36 FR 12096, June 25, 1971, unless 
otherwise noted.



Sec. 0.180   Documents designated as orders.

    All documents relating to the organization of the Department or to 
the assignment, transfer, or delegation of authority, functions, or 
duties by the Attorney General or to general departmental policy shall 
be designated as orders and shall be issued only by the Attorney General 
in a separate, numbered series. Classified orders shall be identified as 
such, included within the numbered series, and limited to the 
distribution provided for in the order or determined by the Assistant 
Attorney General for Administration. All documents amending, modifying, 
or revoking such orders, in whole or in part, shall likewise be 
designated as orders within such numbered series, and no other 
designation of such documents shall be used.



Sec. 0.181   Requirements for orders.

    Each order prepared for issuance by or approval of the Attorney 
General shall be given a suitable title, shall contain a clear and 
concise statement explaining the substance of the order, and shall cite 
the authority for its issuance.



Sec. 0.182   Submission of proposed orders to the Office of Legal Counsel.

    All orders prepared for the approval or signature of the Attorney 
General shall be submitted to the Office of

[[Page 94]]

Legal Counsel for approval as to form and legality and consistency with 
existing orders.



Sec. 0.183   Distribution of orders.

    The distribution of orders, unless otherwise provided by the 
Attorney General, shall be determined by the Assistant Attorney General 
for Administration.



                    Subpart BB--Sections and Subunits



Sec. 0.190  Changes within organizational units.

    (a) The head of each Office, Board, Division or Bureau may from time 
to time propose the establishment, transfer, reorganization or 
termination of major functions within his organizational unit as he may 
deem necessary or appropriate. In each instance, the head of the Office, 
Board, Division or Bureau shall submit the proposed change in writing to 
the Assistant Attorney General for Administration. The Assistant 
Attorney General for Administration shall evaluate the proposal and 
shall submit the proposed change, along with his recommendation, to the 
Associate Attorney when appropriate, and in all other cases directly to 
the Deputy Attorney General. Where the Associate Attorney General has 
received a proposed change, he shall evaluate it, and shall submit it 
along, with his recommendation, to the Deputy Attorney General. The 
Deputy Attorney General shall then approve or disapprove the change.
    (b) The approval shall be final in the case of changes which do not 
affect the overall structure of the Department. Proposed changes which 
are determined by the Deputy Attorney General to affect the overall 
structure of the Department's organization shall be forwarded by the 
Deputy Attorney General to the Attorney General for final approval prior 
to implementation, and shall be effectuated by issuance of an Attorney 
General's order, in accordance with subpart AA of this part.

[Order No. 960-81, 46 FR 52354, Oct. 27, 1981]



Sec. 0.191  Changes which affect the overall structure of the Department.

    Changes to the overall structure of the Department include: The 
establishment, merger or abolishment of Offices, Boards, Divisions, and 
Bureaus; changes in reporting lines of Offices, Boards, Divisions and 
Bureaus to the Department; and transfers of major functions between or 
among Offices, Boards, Divisions and Bureaus.

[Order No. 808-78, 43 FR 54929, Nov. 24, 1978]



                Subpart CC--Jurisdictional Disagreements



Sec. 0.195   Procedure with respect to jurisdictional disagreements.

    Any disagreement between or among heads of the organizational units 
as to their respective jurisdictions shall be resolved by the Attorney 
General, who may, if he so desires, issue an order in the numbered 
series disposing of the matter.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969. Redesignated by Order No. 
445-70. 35 FR 19397, Dec. 23, 1970]



Sec. 0.196  Procedures for resolving disagreements concerning mail or case assignments.

    When an assignment for the handling of mail or a case has been made 
through established procedures and the appropriate authorities in any 
organizational unit of the Department disagree concerning jurisdiction 
of the unit for handling the matter or matters assigned, the 
disagreement, together with a statement of the view of the unit or units 
involved, shall be referred to the Assistant Attorney General for 
Administration for determination. If the disagreement cannot be 
resolved, the matter shall be referred to the Deputy Attorney General 
for final disposition.

[Order No. 900-80, 45 FR 43703, June 30, 1980]



Sec. 0.197  Agreements, in connection with criminal proceedings or investigations, promising non-deportation or other immigration benefits.

    The Immigration and Naturalization Service (Service) shall not be 
bound, in

[[Page 95]]

the exercise of its authority under the immigration laws, through plea 
agreements, cooperation agreements, or other agreements with or for the 
benefit of alien defendants, witnesses, or informants, or other aliens 
cooperating with the United States Government, except by the 
authorization of the Commissioner of the Service or the Commissioner's 
delegate. Both the agreement itself and the necessary authorization must 
be in writing to be effective, and the authorization shall be attached 
to the agreement.

[Order No. 2055-96, 61 FR 48406, Sept. 13, 1996]



PART 1--EXECUTIVE CLEMENCY--Table of Contents




Sec.
1.1  Submission of petition; form to be used; contents of petition.
1.2  Eligibility for filing petition for pardon.
1.3  Eligibility for filing petition for commutation of sentence.
1.4  Offenses against the laws of possessions or territories of the 
          United States.
1.5  Disclosure of files.
1.6  Consideration of petitions; recommendations to the President.
1.7  Notification of grant of clemency.
1.8  Notification of denial of clemency.
1.9  Delegation of authority.
1.10  Advisory nature of regulations.

    Authority: U.S. Const., Art. II, sec. 2; authority of the President 
as Chief Executive; and 28 U.S.C. 509, 510.

    Source: Order No. 1798-93, 58 FR 53658, Oct. 18, 1993, unless 
otherwise noted.



Sec. 1.1  Submission of petition; form to be used; contents of petition.

    A person seeking executive clemency by pardon, reprieve, commutation 
of sentence, or remission of fine shall execute a formal petition. The 
petition shall be addressed to the President of the United States and 
shall be submitted to the Pardon Attorney, Department of Justice, 
Washington, DC 20530, except for petitions relating to military 
offenses. Petitions and other required forms may be obtained from the 
Pardon Attorney. Petition forms for commutation of sentence also may be 
obtained from the wardens of federal penal institutions. A petitioner 
applying for executive clemency with respect to military offenses should 
submit his or her petition directly to the Secretary of the military 
department that had original jurisdiction over the court-martial trial 
and conviction of the petitioner. In such a case, a form furnished by 
the Pardon Attorney may be used but should be modified to meet the needs 
of the particular case. Each petition for executive clemency should 
include the information required in the form prescribed by the Attorney 
General.



Sec. 1.2  Eligibility for filing petition for pardon.

    No petition for pardon should be filed until the expiration of a 
waiting period of at least five years after the date of the release of 
the petitioner from confinement or, in case no prison sentence was 
imposed, until the expiration of a period of at least five years after 
the date of the conviction of the petitioner. Generally, no petition 
should be submitted by a person who is on probation, parole, or 
supervised release.



Sec. 1.3  Eligiblity for filing petition for commutation of sentence.

    No petition for commutation of sentence, including remission of 
fine, should be filed if other forms of judicial or administrative 
relief are available, except upon a showing of exceptional 
circumstances.



Sec. 1.4  Offenses against the laws of possessions or territories of the United States.

    Petitions for executive clemency shall relate only to violations of 
laws of the United States. Petitions relating to violations of laws of 
the possessions of the United States or territories subject to the 
jurisdiction of the United States should be submitted to the appropriate 
official or agency of the possession or territory concerned.



Sec. 1.5  Disclosure of files.

    Petitions, reports, memoranda, and communications submitted or 
furnished in connection with the consideration of a petition for 
executive clemency generally shall be available only to the officials 
concerned with the consideration of the petition. However, they may be 
made available for inspection, in whole or in part, when in the judgment 
of the Attorney General

[[Page 96]]

their disclosure is required by law or the ends of justice.



Sec. 1.6  Consideration of petitions; recommendations to the President.

    (a) Upon receipt of a petition for executive clemency, the Attorney 
General shall cause such investigation to be made of the matter as he/
she may deem necessary and appropriate, using the services of, or 
obtaining reports from, appropriate officials and agencies of the 
Government, including the Federal Bureau of Investigation.
    (b) The Attorney General shall review each petition and all 
pertinent information developed by the investigation and shall determine 
whether the request for clemency is of sufficient merit to warrant 
favorable action by the President. The Attorney General shall report in 
writing his or her recommendation to the President, stating whether in 
his or her judgment the President should grant or deny the petition.



Sec. 1.7  Notification of grant of clemency.

    When a petition for pardon is granted, the petitioner or his or her 
attorney shall be notified of such action and the warrant of pardon 
shall be mailed to the petitioner. When commutation of sentence is 
granted, the petitioner shall be notified of such action and the warrant 
of a commutation shall be sent to the petitioner through the officer in 
charge of his or her place of confinement, or directly to the petitioner 
if he/she is on parole, probation, or supervised release.



Sec. 1.8  Notification of denial of clemency.

    (a) Whenever the President notifies the Attorney General that he has 
denied a request for clemency, the Attorney General shall so advise the 
petitioner and close the case.
    (b) Except in cases in which a sentence of death has been imposed, 
whenever the Attorney General recommends that the President deny a 
request for clemency and the President does not disapprove or take other 
action with respect to that adverse recommendation within 30 days after 
the date of its submission to him, it shall be presumed that the 
President concurs in that adverse recommendation of the Attorney 
General, and the Attorney General shall so advise the petitioner and 
close the case.



Sec. 1.9  Delegation of authority.

    The Attorney General may delegate to any officer of the Department 
of Justice any of his or her duties or responsibilities under Secs. 1.1 
through 1.8.



Sec. 1.10  Advisory nature of regulations.

    The regulations contained in this part are advisory only and for the 
internal guidance of Department of Justice personnel. They create no 
enforceable rights in persons applying for executive clemency, nor do 
they restrict the authority granted to the President under Article II, 
section 2 of the Constitution.



PART 2--PAROLE, RELEASE, SUPERVISION AND RECOMMITMENT OF PRISONERS, YOUTH OFFENDERS, AND JUVENILE DELINQUENTS--Table of Contents




Sec.
2.1  Definitions.
2.2  Eligibility for parole; adult sentences.
2.3  Same: Narcotic Addict Rehabilitation Act.
2.4  Same: Youth offenders and juvenile delinquents.
2.5  Sentence aggregation.
2.6  Withheld and forfeited good time.
2.7  Committed fines and restitution orders.
2.8  Mental competency proceedings.
2.9  Study prior to sentencing.
2.10  Date service of sentence commences.
2.11  Application for parole; notice of hearing.
2.12  Initial hearings: Setting presumptive release dates.
2.13  Initial hearing; procedure.
2.14  Subsequent proceedings.
2.15  Petition for consideration of parole prior to date set at hearing.
2.16  Parole of prisoner in state, local, or territorial institution.
2.17  Original jurisdiction cases.
2.18  Granting of parole.
2.19  Information considered.
2.20  Paroling policy guidelines: Statement of general policy.
2.21  Reparole consideration guidelines.
2.22  Communication with the Commission.
2.23  Delegation to hearing examiners.
2.24  Review of panel recommendation by the Regional Commissioner.
2.25  [Reserved]
2.26  Appeal to National Appeals Board.

[[Page 97]]

2.27  Petition for reconsideration of original jurisdiction decisions.
2.28  Reopening of cases.
2.29  Release on parole.
2.30  False information or new criminal conduct: Discovery after 
          release.
2.31  Parole to detainers: Statement of policy.
2.32  Parole to local or immigration detainers.
2.33  Release plans.
2.34  Recission of parole.
2.35  Mandatory release in the absence of parole.
2.36  Recission guidelines.
2.37  Disclosure of information concerning parolees: Statement of 
          policy.
2.38  Community supervision by U.S. Probation Officers.
2.39  Jurisdiction of the Commission.
2.40  Conditions of release.
2.41  Travel approval.
2.42  Probation officer's reports to Commission.
2.43  Early termination.
2.44  Summons to appear or warrant for retaking of parolee.
2.45  Same; youth offenders.
2.46  Execution of warrant and service of summons.
2.47  Warrant placed as a detainer and dispositional review.
2.48  Revocation: Preliminary interview.
2.49  Place of revocation hearing.
2.50  Revocation hearing procedure.
2.51  Issuance of a subpoena for the appearance of witnesses or 
          production of documents.
2.52  Revocation decisions.
2.53  Mandatory parole.
2.54  Reviews pursuant to 18 U.S.C. 4215(c).
2.55  Disclosure of file prior to parole hearing.
2.56  Disclosure of Parole Commission regional office file.
2.57  Special parole terms.
2.58  Prior orders.
2.59  Designation of a Commissioner to act as a hearing examiner.
2.60  Superior program achievement.
2.61  Qualifications of representatives.
2.62  Prisoners transferred pursuant to treaty.
2.63  Rewarding assistance in the prosecution of other offenders; 
          criteria and guidelines.
2.64  Quorum.
2.65  Youth Corrections Act.
2.66  Paroling policy for prisoners serving aggregate U.S. and D.C. Code 
          sentences.

    Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).

    Source: 42 FR 39809, Aug. 5, 1977, unless otherwise noted.



Sec. 2.1  Definitions.

    As used in this part:
    (a) The term Commission refers to the U.S. Parole Commission.
    (b) The term Commissioner refers to members of the U.S. Parole 
Commission.
    (c) The term National Appeals Board refers to the three-member 
Commission sitting as a body to decide appeals taken from decisions of a 
Regional Commissioner, who participates as a member of the National 
Appeals Board. The Vice Chairman shall be Chairman of the National 
Appeals Board.
    (d) The term National Commissioners refers to the Chairman of the 
Commission and to the Commissioner who is not serving as the Regional 
Commissioner in respect to a particular case.
    (e) The term Regional Commissioner refers to Commissioners who are 
assigned to make initial decisions, pursuant to the authority delegated 
by these rules, in respect to prisoners and parolees in regions defined 
by the Commission.
    (f) The term eligible prisoner refers to any Federal prisoner 
eligible for parole pursuant to this part and includes any Federal 
prisoner whose parole has been revoked and who is not otherwise 
ineligibile for parole.
    (g) The term parolee refers to any Federal prisoner released on 
parole or as if on parole pursuant to 18 U.S.C. 4164 or 4205(f). The 
term mandatory release refers to release pursuant to 18 U.S.C. 4163 and 
4164.
    (h) The term effective date of parole refers to a parole date that 
has been approved following an in-person hearing held within nine months 
of such date, or following a pre-release record review.
    (i) All other terms used in this part shall be deemed to have the 
same meaning as identical or comparable terms as used in chapter 311 of 
part IV of title 18 of the U.S. Code or 28 CFR chapter I, part 0, 
subpart V.

[42 FR 39809, Aug. 5, 1977, as amended at 43 FR 22707, May 26, 1978; 
Order No. 960-81, 46 FR 52354, Oct. 27, 1981; 60 FR 51350, Oct. 2, 1995; 
61 FR 55743, Oct. 29, 1996]

[[Page 98]]



Sec. 2.2  Eligibility for parole; adult sentences.

    (a) A Federal prisoner serving a maximum term or terms of more than 
one year imposed pursuant to 18 U.S.C. 4205 (a) (or pursuant to former 
18 U.S.C. 4202) may be released on parole in the discretion of the 
Commission after completion of one-third of such term or terms, or after 
completion of ten years of a life sentence or of a sentence of over 
thirty years.
    (b) A Federal prisoner serving a maximum term or terms of more than 
one year imposed pursuant to 18 U.S.C. 4205(b)(1) (or pursuant to former 
18 U.S.C. 4208(a)(1)) may be released on parole in the discretion of the 
Commission after completion of the court-designated minimum term, which 
may be less than but not more than one-third of the maximum sentence 
imposed.
    (c) A Federal prisoner serving a maximum term or terms of more than 
one year imposed pursuant to 18 U.S.C. 4205(b)(2) (or pursuant to former 
18 U.S.C. 4208(a)(2)) may be released on parole at any time in the 
discretion of the Commission.
    (d) If the Court has imposed a maximum term or terms of more than 
one year pursuant to 18 U.S.C. 924(a) or 26 U.S.C. 5871 [violation of 
Federal gun control laws], a Federal prisoner serving such term or terms 
may be released in the discretion of the Commission as if sentenced 
pursuant to 18 U.S.C. 4205(b)(2). However, if the prisoner's offense was 
committed on or after October 12, 1984, and the Court imposes a term or 
terms under 26 U.S.C. 5871, the prisoner is eligible for parole only 
after service of one-third of such term or terms, pursuant to 18 U.S.C. 
4205(a).
    (e) A Federal prisoner serving a maximum term or terms of one year 
or less is not eligible for parole consideration by the Commission.

[42 FR 41408, Aug. 17, 1977, as amended at 50 FR 36423, Sept. 6, 1985; 
53 FR 46870, Nov. 21, 1988]



Sec. 2.3  Same: Narcotic Addict Rehabilitation Act.

    A Federal prisoner committed under the Narcotic Addict 
Rehabilitation Act may be released on parole in the discretion of the 
Commission after completion of at least six months in treatment, not 
including any period of time for ``study'' prior to final judgment of 
the court. Before parole is ordered by the Commission, the Surgeon 
General or his designated representative must certify that the prisoner 
has made sufficent progress to warrant his release and the Attorney 
General or his designated representative must also report to the 
Commission whether the prisoner should be released. Recertification by 
the Surgeon General prior to reparole consideration is not required (18 
U.S.C. 4254).

[48 FR 22918, May 23, 1983]



Sec. 2.4  Same: Youth offenders and juvenile delinquents.

    Committed youth offenders and juvenile delinquents may be released 
on parole at any time in the discretion of the Commission.

(18 U.S.C. 5017(a) and 5041)

[45 FR 44925, July 2, 1980]



Sec. 2.5  Sentence aggregation.

    When multiple sentences are aggregated by the Bureau of Prisons 
pursuant to 18 U.S.C. 4161 and 4205, such sentences are treated as a 
single aggregate sentence for the purpose of every action taken by the 
Commission pursuant to these rules, and the prisoner has a single parole 
eligibility date as determined by the Bureau of Prisons.

[45 FR 44925, July 2, 1980]



Sec. 2.6  Withheld and forfeited good time.

    While neither a forfeiture of good time nor a withholding of good 
time shall bar a prisoner from receiving a parole hearing, section 4206 
of title 18 of the U.S. Code permits the Commission to parole only those 
prisoners who have substantially observed the rules of the institution.

[43 FR 38822, Aug. 31, 1978]



Sec. 2.7  Committed fines and restitution orders.

    (a) Committed fines. In any case in which a prisoner shall have had 
a fine imposed upon him by the committing court for which he is to stand 
committed until it is paid or until he is otherwise discharged according 
to law, such prisoner shall not be released on parole

[[Page 99]]

or mandatory release until payment of the fine, or until the fine 
commitment order is discharged according to law under the regulations of 
the Bureau of Prisons. Discharge from the commitment obligation of any 
committed fine does not discharge the prisoner's obligation to pay the 
fine as a debt due the United States.
    (b) Restitution orders. Where a prisoner applying for parole is 
under an order of restitution, and it appears that the prisoner has the 
ability to pay and has willfully failed to do so, the Commission shall 
require that approval of a parole release plan be contingent upon the 
prisoner first satisfying such restitution order. The prisoner shall be 
notified that failure to satisfy this condition shall result in 
retardation of parole under the provisions of Sec. 2.28(e).

[48 FR 44527, Sept. 29, 1983, as amended at 50 FR 36422, Sept. 6, 1985]



Sec. 2.8  Mental competency proceedings.

    (a) Whenever a prisoner (or parolee) is scheduled for a hearing in 
accordance with the provisions of this part and reasonable doubt exists 
as to his mental competency, i.e., his ability to understand the nature 
of and participate in scheduled proceedings, a preliminary inquiry to 
determine his mental competency shall be conducted by the hearing panel, 
hearing examiner or other official (including a U.S. Probation Officer) 
designated by the Regional Commissioner.
    (b) The hearing examiner(s) or designated official shall receive 
oral or written psychiatric or psychological testimony and other 
evidence that may be available. A preliminary determination of mental 
competency shall be made upon the testimony, evidence, and personal 
observation of the prisoner (or parolee). If the examiner(s) or 
designated official determines that the prisoner is mentally competent, 
the previously scheduled hearing shall be held. If they determine that 
the prisoner is not mentally competent, the previously scheduled hearing 
shall be temporarily postponed.
    (c) Whenever the hearing examiner(s) or designated official 
determine that a prisoner is incompetent and postpone the previously 
scheduled hearing, they shall forward the record of the preliminary 
hearing with their findings to the Regional Commissioner for review. If 
the Regional Commissioner concurs with their findings, he shall order 
the temporarily postponed hearing to be postponed indefinitely until 
such time as it is determined that the prisoner has recovered 
sufficiently to understand the nature of and participate in the 
proceedings, and in the case of a parolee may order such parolee 
transferred to a Bureau of Prisons facility for further examination. In 
any such case, the Regional Commissioner shall require a progress report 
on the mental health of the prisoner at least every 6 months. When the 
Regional Commissioner determines that the prisoner has recovered 
sufficiently, he shall reschedule the hearing for the earliest feasible 
date.
    (d) If the Regional Commissioner disagrees with the findings of the 
hearing examiner(s) or designated official as to the mental competency 
of the prisoner, he shall take such action as he deems appropriate.

[44 FR 3408, Jan. 16, 1979]



Sec. 2.9  Study prior to sentencing.

    When an adult Federal offender has been committed to an institution 
by the sentencing court for observation and study prior to sentencing, 
under the provisions of 18 U.S.C. 4205(c), the report to the sentencing 
court is prepared and submitted directly by the U.S. Federal Prison 
System.

[50 FR 36423, Sept. 6, 1985]



Sec. 2.10  Date service of sentence commences.

    (a) Service of a sentence of imprisonment commences to run on the 
date on which the person is received at the penitentiary, reformatory, 
or jail for service of the sentence: Provided, however, That any such 
person shall be allowed credit toward the service of his sentence for 
any days spent in custody in connection with the offense or acts for 
which sentence was imposed.
    (b) The imposition of a sentence of imprisonment for civil contempt 
shall interrupt the running of any sentence of imprisonment being served 
at the time the sentence of civil contempt is imposed, and the sentence 
or sentences

[[Page 100]]

so interrupted shall not commence to run again until the sentence of 
civil contempt is lifted.
    (c) Service of the sentence of a committed youth offender or person 
committed under the Narcotic Addict Rehabilitation Act commences to run 
from the date of conviction and is interrupted only when such prisoner 
or parolee:
    (1) Is on court-ordered bail;
    (2) Is in escape status;
    (3) Has absconded from parole supervision; or
    (4) Comes within the provisions of paragraph (b) of this section.

[42 FR 39809, Aug. 5, 1977, as amended at 47 FR 36634, Aug. 23, 1982]



Sec. 2.11  Application for parole; notice of hearing.

    (a) A federal prisoner (including a committed youth offender or 
prisoner sentenced under the Narcotic Addict Rehabilitation Act) 
desiring to apply for parole shall execute an application form as 
prescribed by the Commission. Such forms shall be available at each 
federal institution and shall be provided to each prisoner who is 
eligible for an initial parole hearing pursuant to Sec. 2.12. Prisoners 
committed under the Federal Juvenile Delinquency Act shall be considered 
for parole without application and may not waive parole consideration. A 
prisoner who receives an initial hearing need not apply for subsequent 
hearings.
    (b) A prisoner may knowingly and intelligently waive any parole 
consideration on a form provided for that purpose. If a prisoner waives 
parole consideration, he may later apply for parole and may be heard 
during the next visit of the Commission to the institution at which he 
is confined, provided that he has applied at least 60 days prior to the 
first day of the month in which such visit of the Commission occurs.
    (c) A prisoner who declines either to apply for or waive parole 
consideration is deemed to have waived parole consideration.
    (d) In addition to the above procedures relating to parole 
application, all prisoners prior to initial hearing shall be provided 
with an inmate background statement by the Bureau of Prisons for 
completion by the prisoner.
    (e) At least sixty days prior to the initial hearing (and prior to 
any hearing conducted pursuant to Sec. 2.14), the prisoner shall be 
provided with written notice of the time and place of the hearing and of 
his right to review the documents to be considered by the Commission, as 
provided by Sec. 2.55. A prisoner may waive such notice, except that if 
such notice is not waived, the case shall be continued to the time of 
the next regularly scheduled proceeding of the Commission at the 
institution in which the prisoner is confined.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 6381, Jan. 28, 1980; 47 
FR 21041, May 17, 1982; 49 FR 7228, Feb. 28, 1984]



Sec. 2.12  Initial hearings: Setting presumptive release dates.

    (a) An initial hearing shall be conducted within 120 days of a 
prisoner's arrival at a federal institution or as soon thereafter as 
practicable; except that in a case of a prisoner with a minimum term of 
parole ineligibility of ten years or more, the initial hearing will be 
conducted nine months prior to the completion of such a minimum term, or 
as soon thereafter as practicable.
    (b) Following initial hearing, the Commission shall (1) set a 
presumptive release date (either by parole or by mandatory release) 
within fifteen years of the hearing; (2) set an effective date of 
parole; or (3) continue the prisoner to a fifteen year reconsideration 
hearing pursuant to Sec. 2.14(c).
    (c) Notwithstanding the above paragraph, a prisoner may not be 
paroled earlier than the completion of any judicially set minimum term 
of imprisonment or other period of parole ineligibility fixed by law.
    (d) A presumptive parole date shall be contingent upon an 
affirmative finding by the Commission that the prisoner has a continued 
record of good conduct and a suitable release plan and shall be subject 
to the provisions of Secs. 2.14 and 2.28. In the case of a prisoner 
sentenced under the Narcotic Addict Rehabilitation Act, 18 U.S.C. 4254, 
a presumptive parole date shall also be contingent upon certification by 
the Surgeon General pursuant to Sec. 2.3 of

[[Page 101]]

these rules. Consideration of disciplinary infractions in cases with 
presumptive parole dates may be deferred until the commencement of the 
next in-person hearing or the prerelease record review required by 
Sec. 2.14(b). While prisoners are encouraged to earn the restoration of 
forfeited or withheld good time, the Commission will consider the 
prisoner's overall institutional record in determining whether the 
conditions of a presumptive parole date have been satisfied.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3405, 3407, Jan. 16, 
1979; 48 FR 22919, May 23, 1983; 49 FR 34208, Aug. 29, 1984; 57 FR 
41391, Sept. 10, 1992; 60 FR 51350, Oct. 2, 1995]



Sec. 2.13  Initial hearing; procedure.

    (a) An initial hearing shall be conducted by a single hearing 
examiner unless the Regional Commissioner orders that the hearing be 
conducted by a panel of two examiners. The examiner shall discuss with 
the prisoner his offense severity rating and salient factor score as 
described in Sec. 2.20, his institutional conduct and, in addition, any 
other matter the examiner may deem relevant.
    (b) A prisoner may be represented at a hearing by a person of his or 
her choice. The function of the prisoner's representative shall be to 
offer a statement at the conclusion of the interview of the prisoner by 
the examiner, and to provide such additional information as the examiner 
shall request. Interested parties who oppose parole may select a 
representative to appear and offer a statement. The hearing examiner 
shall limit or exclude any irrelevant or repetitious statement.
    (c) At the conclusion of the hearing, the examiner shall discuss the 
decision to be recommended by the examiner, and the reasons therefor, 
except in the extraordinary circumstance of a complex issue that 
requires further deliberation before a recommendation can be made.
    (d) In accordance with 18 U.S.C. 4206, the reasons for establishment 
of a release date shall include a guidelines evaluation statement 
containing the prisoner's offense severity rating and salient factor 
score (including the points credited on each item of such score) as 
described in Sec. 2.20, as well as the specific factors and information 
relied upon for any decision outside the range indicated by the 
guidelines.
    (e) No interviews with the Commission, or any representative 
thereof, shall be granted to a prisoner unless his name is docketed for 
a hearing in accordance with Commission procedures. Hearings shall not 
be open to the public.
    (f) A full and complete record of every hearing shall be retained by 
the Commission. Upon a request, pursuant to Sec. 2.56, the Commission 
shall make available to any eligible prisoner such record as the 
Commission has retained of the hearing.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 6381, Jan. 28, 1980; 47 
FR 25736, June 15, 1982; 48 FR 23183, May 24, 1983; 59 FR 45625, Sept. 
2, 1994]



Sec. 2.14  Subsequent proceedings.

    (a) Interim proceedings. The purpose of an interim hearing required 
by 18 U.S.C. 4208(h) shall be to consider any significant developments 
or changes in the prisoner's status that may have occurred subsequent to 
the initial hearing.
    (1) Notwithstanding a previously ordered presumptive release date or 
fifteen year reconsideration hearing, interim hearings shall be 
conducted by an examiner panel pursuant to the procedures of 
Sec. 2.13(b), (c), (e), and (f) at the following intervals from the date 
of the last hearing:
    (i) In the case of a prisoner with a maximum term or terms of less 
than seven years, every eighteen months (until released);
    (ii) In the case of a prisoner with a maximum term or terms of seven 
years or more, every twenty-four months (until released); Provided That, 
in the case of a prisoner whose presumptive parole date exceeds the 
minimum term by no more than nine months, and where at least twenty-four 
months has elapsed since the initial hearing, such prisoner shall be 
entitled to an interim hearing nine months preceding the month of parole 
eligibility.
    (iii) In the case of a prisoner with an unsatisfied minimum term, 
other than described under paragraph (a)(1)(ii) of this section, the 
first interim hearing shall be deferred until the docket of

[[Page 102]]

hearings immediately preceding the month of parole eligibility.
    (2) Following an interim hearing, the Commission may:
    (i) Order no change in the previous decision;
    (ii) Advance a presumptive release date, or the date of a fifteen 
year reconsideration hearing. However, it shall be the policy of the 
Commission that once set, a presumptive release date or the date of a 
fifteen year reconsideration hearing shall be advanced only:
    (1) For superior program achievement under the provisions of 
Sec. 2.60; or
    (2) For other clearly exceptional circumstances.
    (iii) Retard or rescind a presumptive parole date for reason of 
disciplinary infractions. In a case in which disciplinary infractions 
have occurred, the interim hearing shall be conducted in accordance with 
the procedures of Sec. 2.34(c) through (f). (Prior to each interim 
hearing, prisoners shall be notified on the progress report furnished by 
the Federal Prison System that any finding of misconduct by an 
Institutional Disciplinary Committee since the previous hearing will be 
considered for possible action under this paragraph);
    (iv) If a presumptive date falls within nine months after the date 
of an interim hearing, the Commission may treat the interim hearing as a 
prerelease review in lieu of the record review required by paragraph (b) 
of this section.
    (b) Pre-release reviews. The purpose of a pre-release review shall 
be to determine whether the conditions of a presumptive release date by 
parole have been satisfied.
    (1) At least sixty days prior to a presumptive parole date, the case 
shall be reviewed on the record, including a current institutional 
progress report.
    (2) Following review, the Regional Commissioner may:
    (i) Approve the parole date;
    (ii) Advance or retard the parole date for purpose of release 
planning as provided by Sec. 2.28(e);
    (iii) Retard the parole date or commence rescission proceedings as 
provided by Sec. 2.34;
    (iv) Advance the parole date for superior program achievement under 
the provisions of Sec. 2.60.
    (3) A pre-release review pursuant to this section shall not be 
required if an in-person hearing has been held within nine months of the 
parole date.
    (4) Where:
    (i) There has been no finding of misconduct by an Institutional 
Disciplinary Committee nor any allegation of criminal conduct since the 
last hearing; and
    (ii) No other modification of the release date appears warranted, 
the administrative hearing examiner may act for the Regional 
Commissioner under paragraph (b)(2) of this section to approve 
conversion of the presumptive parole date to an effective date of 
parole.
    (c) Fifteen year reconsideration hearings. A fifteen year 
reconsideration hearing shall be a full reassessment of the case 
pursuant to the procedures at Sec. 2.13.
    (1) A fifteen year reconsideration hearing shall be ordered 
following initial hearing in any case in which a release date is not 
set.
    (2) Following a fifteen year reconsideration hearing, the Commission 
may take any one of the actions authorized by Sec. 2.12(b).

[46 FR 39136, July 31, 1981; 47 FR 25735, June 15, 1982, as amended at 
48 FR 9247, Mar. 4, 1983; 48 FR 44525, Sept. 29, 1983; 49 FR 34208, Aug. 
29, 1984; 55 FR 290, Jan. 4, 1990; 60 FR 51350, Oct. 2, 1995]



Sec. 2.15  Petition for consideration of parole prior to date set at hearing.

    When a prisoner has served the minimum term of imprisonment required 
by law, the Bureau of Prisons may petition the responsible Regional 
Commissioner for reopening the case under Sec. 2.28(a) and consideration 
for parole prior to the date set by the Commission at the initial or 
review hearing. The petition must show cause why it should be granted, 
i.e., an emergency, hardship, or the existence of other extraordinary 
circumstances that would warrant consideration of early parole.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3407, Jan. 16, 1979]

[[Page 103]]



Sec. 2.16  Parole of prisoner in state, local, or territorial institution.

    (a) Any person who is serving a sentence of imprisonment for any 
offense against the United States, but who is confined therefor in a 
state reformatory or other state or territorial institution, shall be 
eligible for parole by the Commission on the same terms and conditions, 
by the same authority, and subject to recommittal for the violation of 
such parole, as though he were confined in a Federal penitentiary, 
reformatory, or other correctional institution.
    (b) Federal prisoners serving concurrent state and Federal sentences 
in state, local, or territorial institutions shall be furnished upon 
request parole application forms. Upon receipt of the application and 
any supplementary classification material submitted by the institution, 
parole consideration shall be made by an examiner panel of the 
appropriate region on the record only. If such prisoner is released from 
his state sentence prior to a Federal grant of parole, he shall be given 
a personal hearing as soon as feasible after receipt at a Federal 
institution.
    (c) Prisoners who are serving Federal sentences exclusively but who 
are being boarded in State, local, or territorial institutions may be 
provided hearings at such facilities or may be transferred by the Bureau 
of Prisons to Federal Institutions for hearings by examiner panels of 
the Commission.

(18 U.S.C. 4203, 4204)

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 44924, July 2, 1980; 50 
FR 36424, Sept. 6, 1985]



Sec. 2.17  Original jurisdiction cases.

    (a) Following any hearing conducted pursuant to these rules, a 
Regional Commissioner may designate certain cases for decision by a 
majority of the Commission, as original jurisdiction cases. In such 
instances, he shall forward the case with his vote, and any additional 
comments he may deem germane, to the National Commissioners for 
decision. Decisions shall be based upon the concurrence of two votes, 
with the Regional Commissioner and the National Commissioners each 
having one vote.
    (b) The following criteria will be used in designating cases as 
original jurisdiction cases:
    (1) Prisoners who have committed serious crimes against the security 
of the Nation, e.g., espionage or aggravated subversive activity.
    (2) Prisoners whose offense behavior:
    (i) Involved an unusual degree of sophistication or planning, or
    (ii) Was part of a large scale criminal conspiracy or a continuing 
criminal enterprise.
    (3) Prisoners who have received national or unusual attention 
because of the nature of the crime, arrest, trial, or prisoner status, 
or because of the community status of the offender or his victim.
    (4) Long-term sentences. Prisoners sentenced to a maximum term of 
forty-five years (or more) or prisoners serving life sentences.
    (c)(1) Any case designated for the original jurisdiction of the 
Commission shall remain an original jurisdiction case unless designation 
is removed pursuant to this subsection.
    (2) A case found to be inappropriately designated for the 
Commission's original jurisdiction, or to no longer warrant such 
designation, may be removed from original jurisdiction under the 
procedures specified in paragraph (a) of this section following a 
regularly scheduled hearing or the reopening of the case pursuant to 
Sec. 2.28. Removal from original jurisdiction may also occur by majority 
vote of the Commission considering a petition for reconsideration 
pursuant to Sec. 2.27. Where the circumstances warrant, a case may be 
redesignated as original jurisdiction pursuant to the provisions of 
paragraphs (a) and (b) of this section.

[42 FR 39809, Aug. 5, 1977, as amended at 42 FR 44234, Sept. 2, 1977; 48 
FR 53409, Nov. 28, 1983; 61 FR 13763, Mar. 28, 1996; 61 FR 55743, Oct. 
29, 1996]



Sec. 2.18  Granting of parole.

    The granting of parole to an eligible prisoner rests in the 
discretion of the U.S. Parole Commission. As prerequisites to a grant of 
parole, the Commission must determine that the prisoner has 
substantially observed the rules of the institution or institutions in 
which he has been confined; and

[[Page 104]]

upon consideration of the nature and circumstances of the offense and 
the history and characteristics of the prisoner, must determine that 
release would not depreciate the seriousness of his offense or promote 
disrespect for the law, and that release would not jeopardize the public 
welfare (i.e., that there is a reasonable probability that, if released, 
the prisoner would live and remain at liberty without violating the law 
or the conditions of his parole).



Sec. 2.19  Information considered.

    (a) In making a parole or reparole determination the Commission 
shall consider, if available and relevant:
    (1) Reports and recommendations which the staff of the facility in 
which such prisoner is confined may make;
    (2) Official reports of the prisoner's prior criminal record, 
including a report or record of earlier probation and parole 
experiences;
    (3) Pre-sentence investigation reports;
    (4) Recommendations regarding the prisoner's parole made at the time 
of sentencing by the sentencing judge and prosecuting attorney;
    (5) Reports of physical, mental, or psychiatric examination of the 
offender; and
    (6) A statement, which may be presented orally or otherwise, by any 
victim of the offense for which the prisoner is imprisoned about the 
financial, social, psychological, and emotional harm done to, or loss 
suffered by such victim.
    (b)(1) There shall also be taken into consideration such additional 
relevant information concerning the prisoner (including information 
submitted by the prisoner) as may be reasonably available (18 U.S.C. 
4207). The Commission encourages the submission of relevant information 
concerning an eligible prisoner by interested persons.
    (2) To permit adequate review of information concerning the 
prisoner, materials submitted to the Commission should be received by 
the Commission no later than the first day of the month preceding the 
month of the scheduled hearing docket.
    (3) If material of more than six (6), double-spaced, letter-sized 
pages is first submitted at the time of the hearing (or preliminary 
interview) and the hearing panel (or person conducting the hearing or 
preliminary interview) concludes that it is not feasible to read all the 
material at that time, the person submitting the material will be 
permitted to summarize it briefly at the hearing (or preliminary 
interview). All of the material submitted will become part of the record 
to be considered by the Commission in its review of the proceedings.
    (4) The Commission will normally consider only verbal and written 
evidence at hearings. Recorded audio and visual material will be 
reviewed at hearings only if there is no adequate substitute to permit a 
finding under paragraph (c) of this section. Otherwise, recorded audio 
and visual material should be submitted prior to the hearing for review 
and summarization, pursuant to paragraph (b)(2) of this section.
    (c) The Commission may take into account any substantial information 
available to it in establishing the prisoner's offense severity rating, 
salient factor score, and any aggravating or mitigating circumstances, 
provided the prisoner is apprised of the information and afforded an 
opportunity to respond. If the prisoner disputes the accuracy of the 
information presented, the Commission shall resolve such dispute by the 
preponderance of the evidence standard; that is, the Commission shall 
rely upon such information only to the extent that it represents the 
explanation of the facts that best accords with reason and probability. 
If the Commission is given evidence of criminal behavior that has been 
the subject of an acquittal in a federal, state, or local court, the 
Commission may consider that evidence if:
    (1) The Commission finds that it cannot adequately determine the 
prisoner's suitability for release on parole, or to remain on parole, 
unless the evidence is taken into account;
    (2) The Commission is satisfied that the record before it is 
adequate notwithstanding the acquittal;
    (3) The prisoner has been given the opportunity to respond to the 
evidence before the Commission; and
    (4) The evidence before the Commission meets the preponderance 
standard.


[[Page 105]]


In any other case, the Commission shall defer to the trial jury. Offense 
behavior in Category 5 or above shall presumptively support a finding 
under paragraph (c)(1) of this section.
    (d) Recommendations and information from sentencing judges, defense 
attorneys, prosecutors, and other interested parties are welcomed by the 
Commission. In evaluating a recommendation concerning parole, the 
Commission must consider the degree to which such recommendation 
provides the Commission with specific facts and reasoning relevant to 
the statutory criteria for parole (18 U.S.C. 4206) and the application 
of the Commission's guidelines (including reasons for departure 
therefrom). Thus, to be most helpful, a recommendation should state its 
underlying factual basis and reasoning. However, no recommendation 
(including a prosecutorial recommendation pursuant to a plea agreement) 
may be considered as binding upon the Commission's discretionary 
authority to grant or deny parole.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 26550, May 4, 1979; 44 
FR 27658, May 11, 1979; 44 FR 31638, June 1, 1979; 49 FR 34207, Aug. 29, 
1984; 49 FR 44098, Nov. 2, 1984; 50 FR 36423, Sept. 6, 1985; 51 FR 7064, 
Feb. 28, 1986; 56 FR 16270, Apr. 22, 1991; 56 FR 30868, July 8, 1991; 58 
FR 16612, Mar. 30, 1993]



Sec. 2.20  Paroling policy guidelines: Statement of general policy.

    (a) To establish a national paroling policy, promote a more 
consistent exercise of discretion, and enable fairer and more equitable 
decision-making without removing individual case consideration, the U.S. 
Parole Commission has adopted guidelines for parole release 
consideration.
    (b) These guidelines indicate the customary range of time to be 
served before release for various combinations of offense (severity) and 
offender (parole prognosis) characteristics. The time ranges specified 
by the guidelines are established specifically for cases with good 
institutional adjustment and program progress.
    (c) These time ranges are merely guidelines. Where the circumstances 
warrant, decisions outside of the guidelines (either above or below) may 
be rendered.
    (d) The guidelines contain instructions for the rating of certain 
offense behaviors. However, especially mitigating or aggravating 
circumstances in a particular case may justify a decision or a severity 
rating different from that listed.
    (e) An evaluation sheet containing a ``salient factor score'' serves 
as an aid in determining the parole prognosis (potential risk of parole 
violation). However, where circumstances warrant, clinical evaluation of 
risk may override this predictive aid.
    (f) Guidelines for reparole consideration are set forth at 
Sec. 2.21.
    (g) The Commission shall review the guidelines, including the 
salient factor score, periodically and may revise or modify them at any 
time as deemed appropriate.
    (h) If an offender was less than 18 years of age at the time of the 
current offense, such youthfulness shall, in itself, be considered as a 
mitigating factor.
    (i) For criminal behavior committed while in confinement see 
Sec. 2.36 (Rescission Guidelines).
    (j)(1) In probation revocation cases, the original federal offense 
behavior and any new criminal conduct on probation (federal or 
otherwise) is considered in assessing offense severity. The original 
federal conviction is also counted in the salient factor score as a 
prior conviction. Credit is given toward the guidelines for any time 
spent in confinement on any offense considered in assessing offense 
severity.
    (2) Exception: Where probation has been revoked on a complex 
sentence (i.e., a committed sentence of more than six months on one 
count or more of an indictment or information followed by a probation 
term on other count(s) of an indictment or information), the case shall 
be considered for guideline purposes under Sec. 2.21 as if parole rather 
than probation had been revoked.

[[Page 106]]



                      Guidelines for Decisionmaking                     
[Guidelines for decisionmaking, customary total time to be served before
                     release (including jail time)]                     
------------------------------------------------------------------------
                                       Offender characteristics: Parole 
                                        prognosis (salient factor score 
                                                     1981)              
Offense characteristics: Severity of -----------------------------------
          offense behavior              Very                            
                                        good   Good (7  Fair (5  Poor (3
                                       (10 to   to 6)    to 4)    to 0) 
                                         8)                             
------------------------------------------------------------------------
                                           Guideline range (months)     
                                                                        
Category:                                                               
  1.................................       =4       =8     8-12    12-16
  2.................................       =6      =10    12-16    16-22
  3.................................      =10    12-16    18-24    24-32
  4.................................    12-18    20-26    26-34    34-44
  5.................................    24-36    36-48    48-60    60-72
  6.................................    40-52    52-64    64-78   78-100
  7.................................    52-80    64-92   78-110  100-148
  8 1...............................     100+     120+     150+    180+ 
------------------------------------------------------------------------
\1\ Note: For Category Eight, no upper limits are specified due to the  
  extreme variability of the cases within this category. For decisions  
  exceeding the lower limit of the applicable guideline category by more
  than 48 months, the Commission will specify the pertinent case factors
  upon which it relied in reaching its decision, which may include the  
  absence of any factors mitigating the offense. This procedure is      
  intended to ensure that the prisoner understands that individualized  
  consideration has been given to the facts of the case, and not to     
  suggest that a grant of parole is to be presumed for any class of     
  Category Eight offenders. However, a murder committed to silence a    
  victim or witness, a contract murder, a murder by torture, the murder 
  of a law enforcement officer to carry out an offense, or a murder     
  committed to further the aims of an on-going criminal operation, shall
  not justify a grant of parole at any point in the prisoner's sentence 
  unless there are compelling circumstances in mitigation (e.g., a      
  youthful offender who participated in a murder planned and executed by
  his parent). Such aggravated crimes are considered, by definition, at 
  the extreme high end of Category Eight offenses. For these cases, the 
  expiration of the sentence is deemed to be a decision at the maximim  
  limit of the guideline range. (The fact that an offense does not fall 
  under the definition contained herein does not mean that the          
  Commission is obliged to grant a parole.)                             

         U.S. Parole Commission Offense Behavior Severity Index

Chapter One  Offenses of General Applicability
Chapter Two  Offenses Involving the Person
    Subchapter A--Homicide Offenses
    Subchapter B--Assault Offenses
    Subchapter C--Kidnaping and Related Offenses
    Subchapter D--Sexual Offenses
    Subchapter E--Offenses Involving Aircraft
    Subchapter F--Communication of Threats
Chapter Three   Offenses Involving Property
    Subchapter A--Arson and Property Destruction Offenses
    Subchapter B--Criminal Entry Offenses
    Subchapter C--Robbery, Extortion, and Blackmail
    Subchapter D--Theft and Related Offenses
    Subchapter E--Counterfeiting and Related Offenses
    Subchapter F--Bankruptcy Offenses
    Subchapter G--Violations of Securities or Investment Regulations and 
Antitrust Offenses
Chapter Four  Offenses Involving Immigration, Naturalization, and 
          Passports
Chapter Five  Offenses Involving Revenue
    Subchapter A--Internal Revenue Offenses
    Subchapter B--Customs Offenses
    Subchapter C--Contraband Cigarettes
Chapter Six  Offenses Involving Governmental Process
    Subchapter A--Impersonation of Officials
    Subchapter B--Obstructing Justice
    Subchapter C--Official Corruption
Chapter Seven  Offenses Involving Individual Rights
    Subchapter A--Offenses Involving Civil Rights
    Subchapter B--Offenses Involving Privacy
Chapter Eight  Offenses Involving Explosives and Weapons
    Subchapter A--Explosives and Other Dangerous Articles
    Subchapter B--Firearms
Chapter Nine  Offenses Involving Illicit Drugs
    Subchapter A--Heroin and Opiate Offenses
    Subchapter B--Marihuana and Hashish Offenses
    Subchapter C--Cocaine Offenses
    Subchapter D--Other Illicit Drug Offenses
Chapter Ten  Offenses Involving National Defense
    Subchapter A--Treason and Related Offenses
    Subchapter B--Sabotage and Related Offenses
    Subchapter C--Espionage and Related Offenses
    Subchapter D--Selective Service Offenses
    Subchapter E--Other National Defense Offenses
Chapter Eleven  Offenses Involving Organized Criminal Activity, 
          Gambling, Obscenity, Sexual Exploitation of Children, 
          Prostitution, and Non-Governmental Bribery
    Subchapter A--Organized Crime Offenses
    Subchapter B--Gambling Offenses
    Subchapter C--Obscenity
    Subchapter D--Sexual Exploitation of Children
    Subchapter E--Prostitution and White Slave Traffic
    Subchapter F--Non-Governmental Bribery
    Subchapter G--Currency Offenses
Chapter Twelve  Miscellaneous Offenses
Chapter Thirteen  General Notes and Definitions
    Subchapter A--General Notes
    Subchapter B--Definitions

             Chapter One  Offenses of General Applicability

101  Conspiracy
    Grade conspiracy in the same category as the underlying offense.
102    Attempt

[[Page 107]]

    Grade attempt in the same category as the offense attempted.
103  Aiding and Abetting
    Grade aiding and abetting in the same category as the underlying 
offense.
104  Accessory After the Fact
    Grade accessory after the fact as two categories below the 
underlying offense, but not less than Category One.
105  Solicitation to Commit a Crime of Violence
    Grade solicitation to commit a crime of violence in the same 
category as the underlying offense if the crime solicited would be 
graded as Category Eight. In all other cases grade solicitation to 
commit a crime of violence one category below the underlying offense, 
but not less than Category One.

    Note to Chapter One: The reasons for a conspiracy or attempt not 
being completed may, where the circumstances warrant, be considered as a 
mitigating factor (e.g., where there is voluntary withdrawal by the 
offender prior to completion of the offense).

               Chapter Two  Offenses Involving the Person

                     Subchapter A--Homicide Offenses

201  Murder
    Murder, or a forcible felony* resulting in the death of a person 
other than a participating offender, shall be graded as Category Eight.
---------------------------------------------------------------------------

    *Terms marked by an asterisk are defined in Chapter Thirteen.
---------------------------------------------------------------------------

202  Voluntary Manslaughter
    Category Seven.
203  Involuntary Manslaughter
    Category Four.

                     Subchapter B--Assault Offenses

211  Assault During Commission of Another Offense
    (a) If serious bodily injury* results or if `serious bodily injury 
is the result intended'*, grade as Category Seven;
    (b) If bodily injury* results, or a weapon is fired by any offender, 
grade as Category Six;
    (c) Otherwise, grade as Category Five.
212  Assault
    (a) If serious bodily injury* results or if `serious bodily injury 
is the result intended'*, grade as Category Seven;
    (b) If bodily injury* results or a dangerous weapon is used by any 
offender, grade as Category Five;
    (c) Otherwise, grade as Category Two;
    (d) Exception: (1) If the victim was known to be a ``protected 
person'' * or law enforcement, judicial, or correctional official, grade 
conduct under (a) as Category Seven, (b) as Category six, and (c) as 
Category Three.
    (2) If an assault is committed while resisting an arrest or 
detention initiated by a law enforcement officer or a civilian acting 
under color of law, grade conduct under (a) as Category Seven, (b) as 
Category Six, and (c) as Category Three.
    (e) Exception: If not for ransom or terrorism, and no bodily injury 
to victim, and limited duration (e.g., abducting the driver of a truck 
during a hijacking and releasing him unharmed within an hour), grade as 
Category Six.
    213  Firing a Weapon at a Structure Where Occupants are Physically 
Present
    Grade according to the underlying offense if one can be established, 
but not less than Category Five.

              Subchapter C--Kidnaping and Related Offenses

221  Kidnaping
    (a) If the purpose of the kidnaping is for ransom or terrorism, 
grade as Category Eight;
    (b) If a person is held hostage in a known place for purposes of 
extortion (e.g., forcing a bank manager to drive to a bank to retrieve 
money by holding a family member hostage at home), grade as Category 
Seven;
    (c) If a victim is used as a shield or hostage in a confrontation 
with law enforcement authorities, grade as Category Seven;
    (d) Otherwise, grade as Category Seven.
    (e) Exception: If not for ransom or terrorism, and no bodily injury 
to victim, and limited duration (e.g., abducting the driver of a truck 
during a hijacking and releasing him unharmed within an hour), grade as 
Category Six.
222  Demand for Ransom
    (a) If a kidnapping has, in fact, occurred, but it is established 
that the offender was not acting in concert with the kidnapper(s), grade 
as Category Seven;
    (b) If no kidnapping has occurred, grade as ``extortion''.

                      Subchapter D--Sexual Offenses

231  Rape or Forcible Sodomy
    (a) Category Seven.
    (b) Exception: If a prior consensual sexual relationship between 
victim and offender is present, grade as Category Six.
232  Carnal Knowledge* or Sodomy Involving Minors

    (a) Grade as Category Four, except as provided below.
    (b) If the relationship is clearly consensual and the victim is at 
least fourteen years old, and the age difference between the victim and 
offender is less than four years, grade as Category One.
    (c) If the victim is less than twelve years old, grade as Category 
Seven.
    (d) If the offender is an adult who has abused a position of trust 
(e.g., teacher, counselor, or physician), or the offense involved 
predatory sexual behavior, grade as Category Seven. Sexual behavior is 
deemed

[[Page 108]]

predatory when the offender repeatedly uses any trick or other device to 
attract, lure, or bribe victims into the initial contact that results in 
the offense.
233  Other Unlawful Sexual Conduct With Minors
    (a) Category Four
    (b) Exception: If the victim is less than twelve years old grade as 
Category Six.

                Subchapter E--Offenses Involving Aircraft

241  Aircraft Piracy
    Category Eight.
242  Interference with a Flight Crew
    (a) If the conduct or attempted conduct has potential for creating a 
significant safety risk to an aircraft or passengers, grade as Category 
Seven.
    (b) Otherwise, grade as Category Two.

                 Subchapter F--Communication of Threats

251  Communicating a Threat [to kill, assault, or kidnap]
    (a) Category Four;
    (b) Notes:
    (1) Any overt act committed for the purposes of carrying out a 
threat in this subchapter may be considered as an aggravating factor.
    (2) If for purposes of extortion or obstruction of justice, grade 
according to Chapter Three, subchapter C, or Chapter Six, subchapter B, 
as applicable.

               Chapter Three  Offenses Involving Property

       Subchapter A--Arson and Other Property Destruction Offenses

301  Property Destruction by Fire or Explosives

    (a) If the conduct results in serious bodily injury* or if `serious 
bodily injury is the result intended'*, grade as Category Seven;
    (b) If the conduct (i) involves any place where persons are present 
or likely to be present; or (ii) involves a residence, building, or 
other structure; or (iii) results in bodily injury*, grade as Category 
Six;
    (c) Otherwise, grade as ``property destruction other than listed 
above'' but not less than Category Five.
302  Wrecking a Train
    Category Seven.
303  Property Destruction Other Than Listed Above

    (a) If the conduct results in bodily injury,* or if ``serious bodily 
injury is the result intended'',* grade as if ``assault during 
commission of another offense'';
---------------------------------------------------------------------------

    * Terms marked by an asterisk are defined in Chapter Thirteen.
---------------------------------------------------------------------------

    (b) If damage of more than $5,000,000 is caused, grade as Category 
Seven;
    (c) If damage of more than $1,000,000 but not more than $5,000,000 
is caused, grade as Category Six;
    (d) If damage of more than $200,000 but not more than $1,000,000 is 
caused, grade as Category Five;
    (e) If damage of at least $40,000 but not more than $200,000 is 
caused, grade as Category Four;
    (f) If damage of at least $2,000 but less than $40,000 is caused, 
grade as Category Three;
    (g) If damage of less than $2,000 is caused, grade as Category One;
    (h) Exception: If a significant interruption of a government or 
public utility function is caused, grade as not less than Category 
Three.

                  Subchapter B--Criminal Entry Offenses

311  Burglary or Unlawful Entry
    (a) If the conduct involves an armory or similar facility (e.g., a 
facility where automatic weapons or war materials are stored) for the 
purpose of theft or destruction of weapons or war materials, grade as 
Category Six;
    (b) If the conduct involves an inhabited dwelling (whether or not a 
victim is present), or any premises with a hostile confrontation with a 
victim, grade as Category Five;
    (c) If the conduct involves use of explosives or safecracking, grade 
as Category Five;
    (d) Otherwise, grade as ``theft'' offense, but not less than 
Category Two.
    (e) Exception: If the grade of the applicable ``theft'' offense 
exceeds the grade under this subchapter, grade as a ``theft'' offense.

             Subchapter C--Robbery, Extortion, and Blackmail

321  Robbery
    (a) Category Five.
    (b) Exceptions:
    (1) If the grade of the applicable ``theft'' offense exceeds the 
grade for robbery, grade as a ``theft'' offense.
    (2) If any offender forces a victim to accompany any offender to a 
different location, or if a victim is forcibly detained by being tied, 
bound, or locked up, grade as Category Six.
    (3) Pickpocketing (stealth--no force or fear), see subchapter D.
    (c) Note: Grade purse snatching (fear or force) as robbery.
322  Extortion
    (a) If by threat of physical injury to person or property, or 
extortionate extension of credit (loansharking), grade as Category Five;
    (b) If by use of official governmental position, grade according to 
Chapter Six, subchapter C.
    (c) If neither (a) nor (b) is applicable, grade under Chapter 
Eleven, subchapter F;

[[Page 109]]

323  Blackmail [threat to injure reputation or accuse of crime]
    Grade as a ``theft'' offense according to the value of the property 
demanded, but not less than Category Three. Actual damage to reputation 
may be considered as an aggravating factor.

                Subchapter D--Theft and Related Offenses

331  Theft, Forgery, Fraud, Trafficking in Stolen Property*, Interstate 
          Transportation of Stolen Property, Receiving Stolen Property, 
          Embezzlement, and Related Offenses

    (a) If the value of the property* is more than $5,000,000, grade as 
Category Seven;
    (b) If the value of the property* is more than $1,000,000 but not 
more than $5,000,000, grade as Category Six;
---------------------------------------------------------------------------

    *Terms marked by an asterisk are defined in Chapter Thirteen.
---------------------------------------------------------------------------

    (c) If the value of the property* is more than $200,000 but not more 
than $1,000,000, grade as Category Five;
    (d) If the value of the property* is at least $40,000 but not more 
than $200,000, grade as Category Four;
    (e) If the value of the property* is at least $2,000 but less than 
$40,000, grade as Category Three;
    (f) If the value of the property* is less than $2,000, grade as 
Category One.
    (g) Exceptions:
    (1) Offenses involving stolen checks, credit cards, money orders or 
mail, forgery, fraud, interstate transportation of stolen or forged 
securities, trafficking in stolen property, or embezzlement shall be 
graded as not less than Category Two;
    (2) Theft of an automobile shall be graded as no less than Category 
Three. Note: where the vehicle was recovered within 72 hours with no 
significant damage and the circumstances indicate that the only purpose 
of the theft was temporary use (e.g., joyriding), such circumstances may 
be considered as a mitigating factor.
    (3) Grade obtaining drugs for own use by a fraudulent or 
fraudulently obtained prescription as Category Two.
    (4) Grade manufacture, sale, and fraudulent use of credit cards as 
follows:
    (i) Grade the manufacture, distribution or possession of counterfeit 
or altered credit cards as not less than Category Four.
    (ii) Grade the distribution or possession of multiple stolen credit 
cards as not less than Category Three.
    (iii) Grade the distribution or possession of a single stolen credit 
card as not less than Category Two.
    (h) Note: In ``theft'' offenses, the total amount of the theft 
committed or attempted by the offender, or others acting in concert with 
the offender, is to be used.
    (2) Grade fraudulent sale of drugs (e.g., sale of sugar as heroin) 
as `fraud'.
332  Pickpocketing [stealth-no force or fear]
    Grade as a ``theft'' offense, but not less than Category Three.
333  Fraudulent Loan Applications
    Grade as a ``fraud'' offense according to the amount of the loan.
334  Preparation or Possession of Fraudulent Documents
    (a) If for purposes of committing another offense, grade according 
to the offense intended;
    (b) Otherwise, grade as Category Two.
335  Criminal Copyright Offenses
    (a) If very large scale (e.g., more than 100,000 sound recordings or 
more than 10,000 audio visual works), grade as Category Five;

    (b) If large scale (e.g., 20,000-100,000 sound recordings or 2,000-
10,000 audio visual works), grade as Category Four;
    (c) If medium scale (e.g., 2,000-19,999 sound recordings or 200-
1,999 audio visual works), grade as Category Three;
    (d) If small scale (e.g., less than 2,000 sound recordings or less 
than 200 audio visual works), grade as Category Two.

            Subchapter E--Counterfeiting and Related Offenses

341  Passing or Possession of Counterfeit Currency or Other Medium of 
          Exchange*

    (a) If the face value of the currency or other medium of exchange is 
more than $5,000,000, grade as Category Seven;
    (b) If the face value of the currency or other medium of exchange is 
more than $1,000,000 but not more than $5,000,000, grade as Category 
Six;
    (c) If the face value is more than $200,000 but not more than 
$1,000,000, grade as Category Five;
    (d) If the face value is at least $40,000 but not more than 
$200,000, grade as Category Four;
    (e) If the face value is at least $2,000 but less than $40,000, 
grade as Category Three;
    (f) If the face value is less than $2,000, grade as Category Two.
342  Manufacture of Counterfeit Currency or Other Medium of Exchange* or 
          Possession of Instruments for Manufacture
    Grade manufacture or possession of instruments for manufacture 
(e.g., a printing press or plates) according to the quantity printed 
(see passing or possession)), but not less than Category Five. The term 
manufacture refers to the capacity to print or generate multiple copies; 
it does not apply to pasting together parts of different notes.

                    Subchapter F--Bankruptcy Offenses

351  Fraud in Bankruptcy or Concealing Property
    Grade as a ``fraud'' offense.

[[Page 110]]

  Subchapter G--Violation of Securities or Investment Regulations and 
                           Antitrust Offenses

361  Violation of Securities or Investment Regulations
    (a) If for purposes of fraud, grade according to the underlying 
offense;
    (b) Otherwise, grade as Category Two.
362  Antitrust Offenses
    (a) If estimated economic impact is more than one million dollars, 
grade as Category Four;
    (b) If the estimated economic impact is more than $100,000 but not 
more than one million dollars, grade as Category Three;
    (c) Otherwise, grade as Category Two.
    (d) Note: The term `economic impact' refers to the estimated loss to 
any victims (e.g., loss to consumers from a price fixing offense).
363  Insider Trading
    (a) If the estimated economic impact is more than $5,000,000, grade 
as Category Seven;
    (b) If the estimated economic impact is more than $1,000,000 but not 
more than $5,000,000, grade as Category Six;
    (c) If the estimated economic impact is more than $200,000 but not 
more than $1,000,000, grade as Category Five;
    (d) If the estimated economic impact is at least $40,000 but not 
more than $200,000, grade as Category Four;
    (e) If the estimated economic impact is at least $2,000 but less 
than $40,000, grade as Category Three;
    (f) If the estimated economic impact is less than $2,000, grade as 
Category Two.
    (g) Note: The term `economic impact' includes the damage sustained 
by the victim whose information was unlawfully used, plus any other 
illicit profit resulting from the offense.

   Chapter Four  Offenses Involving Immigration, Naturalization, and 
                                Passports

401  Unlawfully Entering the United States as an Alien
    Category One.
402  Transportation of Unlawful Alien(s)
    (a) If the transportation of unlawful alien(s) involves detention 
and demand for payment, grade as Category Five;
    (b) Otherwise, grade as Category Three.
403  Offenses Involving Passports
    (a) If making an unlawful passport for distribution to another, 
possession with intent to distribute, or distribution of an unlawful 
passport, grade as Category Three;
    (b) If fraudulently acquiring or improperly using a passport, grade 
as Category Two.
404  Offenses Involving Naturalization or Citizenship Papers
    (a) If forging or falsifying naturalization or citizenship papers 
for distribution to another, possession with intent to distribute, or 
distribution, grade as Category Three;
    (b) If acquiring fraudulent naturalization or citizenship papers for 
own use or improper use of such papers, grade as Category Two;
    (c) If failure to surrender canceled naturalization or citizenship 
certificate(s), grade as Category One.

                Chapter Five  Offenses Involving Revenue

                 Subchapter A--Internal Revenue Offenses

501  Tax Evasion [income tax or other taxes]

    (a) If the amount of tax evaded or evasion attempted is more than 
$5,000,000, grade as Category Seven;
    (b) If the amount of tax evaded or evasion attempted is more than 
$1,000,000 but not more than $5,000,000, grade as Category Six;
    (c) If the amount of tax evaded or evasion attempted is more than 
$200,000 but not more than $1,000,000, grade as Category Five;
    (d) If the amount of tax evaded or evasion attempted is at least 
$40,000 but not more than $200,000, grade as Category Four;
    (e) If the amount of tax evaded or evasion attempted is at least 
$2,000 but less than $40,000, grade as Category Three;
    (f) If the amount of tax evaded or evasion attempted is less than 
$2,000, grade as Category One.
    (g) Notes:
    (1) Grade according to the amount of tax evaded or evasion 
attempted, not the gross amount of income.
    (2) Tax evasion refers to failure to pay applicable taxes. Grade a 
false claim for a tax refund (where tax has not been withheld) as a 
``fraud'' offense.
502  Operation of an Unregistered Still
    Grade as a ``tax evasion'' offense.

                     Subchapter B--Customs Offenses

511  Smuggling Goods into the United States
    (a) If the conduct is for the purpose of tax evasion, grade as a 
`tax evasion' offense.
    (b) If the article is prohibited from entry to the country 
absolutely (e.g., illicit drugs or weapons), use the grading applicable 
to possession with intent to distribute of such articles, or the grading 
applicable to tax evasion, whichever is higher, but not less than 
Category Two;
    (c) If the conduct involves breaking seals, or altering or defacing 
customs marks, or concealing invoices, grade according to (a) or (b), as 
applicable, but not less than Category Two.
512  Smuggling Goods into Foreign Countries in Violation of Foreign Law 
          (re: 18 U.S.C. 546)
    Category Two.

                   Subchapter C--Contraband Cigarettes

521  Trafficking in Contraband Cigarettes (re: 18 U.S.C. 2342)

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    Grade as a tax evasion offense.

          Chapter Six  Offenses Involving Governmental Process

                Subchapter A--Impersonation of Officials

601  Impersonation of Official
    (a) If for purposes of commission of another offense, grade 
according to the offense attempted, but not less than Category Two;
    (b) Otherwise, grade as Category Two.

                    Subchapter B--Obstructing Justice

611  Perjury
    (a) If the perjured testimony concerns a criminal offense, grade as 
accessory after the fact, but not less than Category Three;
    (b) Otherwise, grade as Category Three.
    (c) Suborning perjury, grade as perjury.
612  Unlawful False Statements Not Under Oath
    Category One.
613  Tampering With Evidence or Witness, Victim, Informant or Juror
    (a) If concerning a criminal offense, grade as accessory after the 
fact, but not less than Category Three.
    (b) Otherwise, grade as Category Three.
    (c) Exception: Intimidation by threat of physical harm, grade as not 
less than Category Five.
614  Misprision of a Felony*
    Grade as if ``accessory after the fact'' but not higher than 
Category Three.
615  Harboring a Fugitive
    Grade as if `accessory after the fact' to the offense for which the 
fugitive is wanted, but not higher than Category Three.
616  Escape
    If in connection with another offense for which a severity rating 
can be assessed, grade the underlying offense and apply the rescission 
guidelines to determine an additional penalty. Otherwise, grade as 
Category Three.
617  Failure To Appear*
    (a) In Felony Proceedings. If in connection with an offense for 
which a severity rating can be assessed, add to the guidelines otherwise 
appropriate the following: (i)  6 months if voluntary return 
within 6 days, or (ii) 6-12 months in any other case. Otherwise, grade 
as Category Three.
    (b) In Misdemeanor Proceedings. Grade as Category One.
    (c) Note: For purposes of this subsection, a misdemeanor is defined 
as an offense for which the maximum penalty authorized by law (not 
necessarily the penalty actually imposed) does not exceed one year.
618  Contempt of Court
    (a) Criminal Contempt (re: 18 U.S.C. 402). Where imposed in 
connection with a prisoner serving a sentence for another offense, add 
<=6 months to the guidelines otherwise appropriate.
    (b) Exception: If a criminal sentence is imposed under 18 U.S.C. 401 
for refusal to testify concerning a criminal offense, grade such conduct 
as if accessory after the fact.
    (c) Civil Contempt. See 28 CFR 2.10.

                    Subchapter C--Official Corruption

621  Bribery or Extortion [use of official position--no physical threat]
    (a)Grade as a ``theft offense'' according to the value of the bribe 
demanded or received, or the favor received by the bribe-giver 
(whichever is greater), but not less than Category Three. The ``favor 
received'' is the gross value of the property, contract, obligation, 
interest, or payment intended to be awarded to the bribe-giver in return 
for the bribe. Grade the bribe-taker in the same manner.
    (b) If the above conduct involves a pattern of corruption (e.g., 
multiple instances), grade as not less than Category Four.
    (c) If the purpose of the conduct is the obstruction of justice, 
grade as if ``perjury''.
    (d) Notes:
    (1) The grading in this subchapter applies to each party to a bribe.
    (2) The extent to which the criminal conduct involves a breach of 
public trust, causing injury beyond that describable by monetary gain, 
may be considered as an aggravating factor.
622  Other Unlawful Use of Governmental Position
    Category Two.

                       Subchapter D--Voting Fraud

631  Voting Fraud
    Category Four.

           Chapter Seven  Offenses Involving Individual Rights

              Subchapter A--Offenses Involving Civil Rights

701  Conspiracy Against Rights of Citizens (re: 18 U.S.C. 241)
    (a) If death results, grade as Category Eight;
    (b) Otherwise, grade as if ``assault''.
702  Deprivation of Rights Under Color of Law (re: 18 U.S.C. 242)
    (a) If death results, grade as Category Eight;
    (b) Otherwise, grade as if ``assault''.
703  Federally Protected Activity (re: 18 U.S.C. 245)
    (a) If death results, grade as Category Eight;
    (b) Otherwise, grade as if ``assault''.
704  Intimidation of Persons in Real Estate Transactions Based on Racial 
          Discrimination (re: 42 U.S.C. 3631)
    (a) If death results, grade as Category Eight;
    (b) Otherwise, grade as if ``assault''.

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705  Transportation of Strikebreakers (re: 18 U.S.C. 1231)
    Category Two.

                Subchapter B--Offenses Involving Privacy

711  Interception and Disclosure of Wire or Oral Communications (re: 18 
          U.S.C. 2511)
    Category Two.
712  Manufacture, Distribution, Possession, and Advertising of Wire or 
          Oral Communication Intercepting Devices (re: 18 U.S.C. 2512)
    (a) Category Three.
    (b) Exception: If simple possession, grade as Category Two.
713  Unauthorized Opening of Mail
    Category Two.

        Chapter Eight  Offenses Involving Explosives and Weapons

     Subchapter A--Explosives Offenses and Other Dangerous Articles

801  Unlawful Possession or Distribution of Explosives; or Use of 
          Explosives During a Felony
    Grade according to offense intended, but not less than Category 
Five.
802  Mailing Explosives or Other Injurious Articles With Intent To 
          Commit a Crime
    Grade according to offense intended, but not less than Category 
Five.

                         Subchapter B--Firearms

811  Possession by Prohibited Person (e.g., ex-felon)
    (a) If single weapon (rifle, shotgun, or handgun) with ammunition of 
the same caliber, or ammunition of a single caliber (without weapon), 
grade as Category Three;
    (b) If multiple weapons (rifles, shotguns, or handguns), or 
ammunition of different calibers, or single weapon and ammunition of a 
different caliber, grade as Category Four.
812  Unlawful Possession or Manufacture of Sawed-off Shotgun, Machine 
          Gun, Silencer, or ``Assassination kit''
    (a) If silencer or ``assassination kit'', grade as Category Six;
    (b) If sawed-off shotgun or machine gun, grade as Category Five.
813  Unlawful Distribution of Weapons or Possession With Intent To 
          Distribute
    (a) If silencer(s) or ``assassination kit(s)'', grade as Category 
Six;
    (b) If sawed-off shotgun(s) or machine gun(s), grade as Category 
Five;
    (c) If multiple weapons (rifles, shotguns, or handguns), or 
ammunition of different calibers, or single weapon and ammunition of a 
different caliber, grade as Category Four;
    (d) If single weapon (rifle, shotgun, or handgun) with ammunition of 
the same caliber, or ammunition of a single caliber (without weapon), 
grade as Category Three.

             Chapter Nine  Offenses Involving Illicit Drugs

                Subchapter A--Heroin and Opiate* Offenses

901  Distribution or Possession With Intent To Distribute
    (a) If extremely large scale (e.g., involving 3 kilograms or more of 
100% pure heroin, or equivalent amount), grade as Category Eight [except 
as noted in (c) below];
    (b) if very large scale (e.g., involving 1 kilogram but less than 3 
kilograms of 100% pure herion, or equivalent amount), grade as Category 
Seven [except as noted in (c) below];
    (c) Where the Commission finds that the offender had only a 
peripheral role*, grade conduct under (a) or (b) as Category Six;
    (d) If large scale (e.g., involving 50-999 grams of 100% pure 
heroin, or equivalent amount), grade as Category Six [except as noted in 
(e) below];
    (e) Where the Commission finds that the offender had only a 
peripheral role*, grade conduct under (d) as Category Five.
    (f) If medium scale (e.g., involving 5-49 grams of 100% pure heroin, 
or equivalent amount), grade as Category Five;
    (g) If small scale (e.g., involving less than 5 grams of 100% pure 
heroin, or equivalent amount), grade as Category Four;
902  Simple Possession
    Category One.

              Subchapter B--Marihuana and Hashish Offenses

911  Distribution or Possession With Intent To Distribute
    (a) If extremely large scale (e.g., involving 20,000 pounds or more 
of marihuana/6,000 pounds or more of hashish/600 pounds or more of hash 
oil), grade as Category Six [except as noted in (b) below];
    (b) Where the Commission finds that the offender had only a 
peripheral role, grade* conduct under (a) as Category Five;
    (c) If very large scale (e.g., involving 2,000-19,999 pounds of 
marihuana/600-5,999 pounds of hashish/60-599 pounds of hash oil), grade 
as Category Five;
    (d) If large scale (e.g., involving 200-1,999 pounds of marihuana/
60-599 pounds of hashish/6-59.9 pounds of hash oil), grade as Category 
Four;
    (e) If medium scale (e.g., involving 50-199 pounds of marihuana/15-
59.9 pounds of hashish/1.5-5.9 pounds of hash oil), grade as Category 
Three;
    (f) If small scale (e.g., involving 10-49 pounds of marihuana/3-14.9 
pounds of hashish/.3-1.4 pounds of hash oil), grade as Category Two;
    (g) If very small scale (e.g., involving less than 10 pounds of 
marihuana/less than 3

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pounds of hashish/less than .3 pounds of hash oil), grade as Category 
One.
912  Simple Possession
    Category One.

                     Subchapter C--Cocaine Offenses

921 Distribution or Possession With Intent to Distribute
    (a) If extremely large scale (e.g., involving 15 kilograms or more 
of 100% purity, or equivalent amount; or 1.5 kilograms or more of 
freebased cocaine), grade as Category Eight [except as noted in (c) 
below];
    (b) If very large scale (e.g., involving 5 kilograms, but less than 
15 kilograms of 100% purity, or equivalent amount; or 500 grams but less 
than 1.5 kilograms of freebased cocaine), grade as Category Seven 
[except as noted in (c) below];
    (c) Where the Commission finds that the offender had only a 
peripheral role*, grade conduct under (a) or (b) as Category Six;
    (d) If large scale (e.g., involving more than 1 kilogram, but less 
than 5 kilograms of 100% purity, or equivalent amount; or more than 100 
grams, but less than 500 grams of freebased cocaine) grade as Category 
Six [except as noted in (e) below];
    (e) Where the Commission finds that the offender had only a 
peripheral role, grade conduct under (d) as Category Five;
    (f) If medium scale (e.g., involving 100 grams-1 kilogram of 100% 
purity, or equivalent amount; or 10 grams-100 grams of freebased 
cocaine), grade as Category Five;
    (g) If small scale (e.g., involving 5-99 grams of 100% purity, or 
equivalent amount; or 1 gram-9.9 grams of freebased cocaine), grade as 
Category Four;
    (h) If very small scale (e.g., involving less than 1.0-4.9 grams of 
100% purity, or equivalent amount; or less than 1 gram of freebased 
cocaine), grade as Category Three;
    (i) If extremely small scale (e.g., involving less than 1 gram of 
100% purity, or equivalent amount), grade as Category Two.
922  Simple Possession
    Category One.

                Subchapter D--Other Illicit Drug Offenses

931  Distribution or Possession With Intent To Distribute
    (a) If very large scale (e.g., involving more than 200,000 doses), 
grade as Category Six [except as noted in (b) below];
    (b) Where the Commission finds that the offender had only a 
peripheral role*, grade conduct under (a) as Category Five;
    (c) If large scale (e.g., involving 20,000-200,000 doses), grade as 
Category Five;
    (d) If medium scale (e.g., involving 1,000-19,999 doses), grade as 
Category Four;
    (e) If small scale (e.g., involving 200-999 doses), grade as 
Category Three;
    (f) If very small scale (e.g., involving less than 200 doses), grade 
as Category Two.
932  Simple Possession
    Category One.

    Notes to Chapter Nine:
    (1) Grade manufacture of synthetic illicit drugs as listed above, 
but not less than Category Five.
    (2) ``Equivalent amounts'' for the cocaine and opiate categories may 
be computed as follows: 1 gram of 100% pure is equivalent to 2 grams of 
50% pure and 10 grams of 10% pure, etc.
    (3) Grade unlawful possession or distribution of precursors of 
illicit drugs as Category Five (i.e., aiding and abetting the 
manufacture of synthetic illicit drugs).
    (4) If weight, but not purity is available, the following grading 
may be used:

                                 Heroin

Extremely large scale--6 kilograms or more
Very large scale--2-5.99 kilograms
Large scale--200 gms.-1.99 kilograms
Medium scale--28.35-199.99 gms.
Small scale--Less than 28.35 gms.

                                 Cocaine

Extremely large scale--18.75 kilograms or more
Very large scale--6.25-18.74 kilograms
Large scale--1.25-6.24 kilograms
Medium scale--200 gms.-1.24 kilograms
Small scale--20 gms.-199.99 gms.
Very small scale--4 gms.-19.99 gms.
Extremely small scale--Less than 4 gms.

            Chapter Ten  Offenses Involving National Defense

               Subchapter A--Treason and Related Offenses

1001  Treason
    Category Eight.
1002  Rebellion or Insurrection
    Category Seven.

               Subchapter B--Sabotage and Related Offenses

1011  Sabotage
    Category Eight.
1012  Enticing Desertion
    (a) In time of war or during a national defense emergency, grade as 
Category Four;
    (b) Otherwise, grade as Category Three.
1013  Harboring or Aiding a Deserter
    Category One.

              Subchapter C--Espionage and Related Offenses

1021  Espionage
    Category Eight.

                Subchapter D--Selective Service Offenses

1031  Failure to Register, Report for Examination or Induction

[[Page 114]]

    (a) If committed during time of war or during a national defense 
emergency, grade as Category Four;
    (b) If committed when draftees are being inducted into the armed 
services, grade as Category Three;
    (c) Otherwise, grade as Category One.

              Subchapter E--Other National Defense Offenses

1041  Offenses Involving Nuclear Energy
    Unauthorized production, possession, or transfer of nuclear weapons 
or special nuclear material or receipt of or tampering with restricted 
data on nuclear weapons or special nuclear material, grade as Category 
Eight.
1042  Violations of Export Administration Act (50 U.S.C. 2410)
    Grade conduct involving ``national security controls'' or ``nuclear 
nonproliferation controls'' as Category Six.
1043 Violations of the Arms Control Act (22 U.S.C. 2278)
    (a) Grade conduct involving export of sophisticated weaponry (e.g., 
aircraft, helicopters, armored vehicles, or ``high technology'' items) 
as Category Six.
    (b) Grade Conduct involving export of other weapons (e.g., rifles, 
handguns, machine guns, or hand grenades) as if a weapons/explosive 
distribution offense under Offenses Involving Explosives and Weapons 
(Chapter Eight).

 Chapter Eleven--Offenses Involving Organized Crime Activity, Gambling, 
     Obscenity, Sexual Exploitation of Children, Prostitution, Non-
              Governmental Corruption, and the Environment

                 Subchapter A--Organized Crime Offenses

1101  Racketeer Influence and Corrupt Organizations (re: 18 U.S.C. 1961-
          63)
    Grade according to the underlying offense attempted, but not less 
than Category Five.
1102  Interstate or Foreign Travel or Transportation in Aid of 
          Racketeering Enterprise (re: 18 U.S.C. 1952)
    Grade according to the underlying offense attempted, but not less 
than Category Three.

                     Subchapter B--Gambling Offenses

1111  Gambling Law Violations--Operating or Employment in an Unlawful 
          Business (re: 18 U.S.C. 1955)
    (a) If large scale operation [e.g., Sports books (estimated daily 
gross more than $15,000); Horse books (estimated daily gross more than 
$4,000); Numbers bankers (estimated daily gross more than $2,000); Dice 
or card games (estimated daily `house cut' more than $1,000); video 
gambling (eight or more machines)]; grade as Category Four;
    (b) If medium scale operation [e.g., Sports books (estimated daily 
gross $5,000--$15,000); Horse books (estimated daily gross $1,500--
$4,000); Numbers bankers (estimated daily gross $750--$2,000); Dice or 
card games (estimated daily `house cut' $400--$1,000); video gambling 
(four-seven machines)]; grade as Category Three;
    (c) If small scale operation [e.g., Sports books (estimated daily 
gross less than $5,000); Horse books (estimated daily gross less than 
$1,500); Numbers bankers (estimated daily gross less than $750); Dice or 
card games (estimated daily `house cut' less than $400); video gambling 
(three or fewer machines)]; grade as Category Two;
    (d) Exception: Where it is established that the offender had no 
proprietary interest or managerial role, grade as Category One.
1112  Interstate Transportation of Wagering Paraphernalia (re: 18 U.S.C. 
          1953)
    Grade as if `operating a gambling business'.
1113  Wire Transmission of Wagering Information (re: 18 U.S.C. 1084)
    Grade as if ``operating a gambling business''.
1114  Operating or Owning a Gambling Ship (re: 18 U.S.C. 1082)
    Category Three.
1115  Importing or Transporting Lottery Tickets; Mailing Lottery Tickets 
          or Related Matter (re: 18 U.S.C. 1301, 1302)
    (a) Grade as if ``operating a gambling business'';
    (b) Exception: If non-commercial, grade as Category One.

                         Subchapter C--Obscenity

1121  Mailing, Importing, or Transporting Obscene Matter
    (a) If for commercial purposes, grade as Category Three;
    (b) Otherwise, Category One.
1122  Broadcasting Obscene Language
    Category One.

              Subchapter D--Sexual Exploitation of Children

1131  Sexual Exploitation of Children* (re: 18 U.S.C. 2251, 2252)
    (a) Category Six;
    (b) Exception: Where the Commission finds the offender had only a 
peripheral role (e.g., a retailer receiving such material for resale but 
with no involvement in the production or wholesale distribution of such 
material), grade as Category Five.

           Subchapter E--Prostitution and White Slave Traffic

1141  Interstate Transportation for Commercial Purposes
    (a) If physical coercion, or involving person(s) of age less than 
18, grade as Category Six;
    (b) Otherwise, grade as Category Four.
    1142  Prostitution

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    Category One.

                Subchapter F--Non-Governmental Corruption

1151  Demand or Acceptance of Unlawful Gratuity Not Involving Federal, 
          State, or Local Government Officials
    Grade as if a fraud offense according to (1) the amount of the bribe 
offered or demanded, or (2) the financial loss to the victim, whichever 
is higher.
1152  Sports Bribery
    If the conduct involves bribery in a sporting contest, grade as if a 
theft offense according to the amount of the bribe, but not less than 
Category Three.

                     Subchapter G--Currency Offenses

1161  Reports on Monetary Instrument Transactions

    (a) If extremely large scale (e.g., the estimated gross amount of 
currency involved is more than $5,000,000), grade as Category Seven;
    (b) If very large scale (e.g., the estimated gross amount of 
currency involved is more than $1,000,000 but not more than $5,000,000), 
grade as Category Six;
    (c) If large scale (e.g., the estimated gross amount of currency 
involved is more than $200,000 but not more than $1,000,000), grade as 
Category Five;
    (d) If medium scale (e.g., the estimated gross amount of currency 
involved is at least $40,000 but not more than $200,000), grade as 
Category Four;
    (e) If small scale (e.g., the estimated gross amount of currency 
involved is less than $40,000), grade as Category Three.

                  Subchapter H--Environmental Offenses

1171   Knowing Endangerment Resulting From Unlawful Treatment, 
          Transportation, Storage, or Disposal of Hazardous Waste [Re: 
          42 U.S.C. 6928(e)]
    (a) If death results, grade as Category Seven;
    (b) If serious bodily injury results, grade as Category Six;
    (c) Otherwise, grade as Category Five.
    (d) Note: Knowing Endangerment requires a finding that the offender 
knowingly transported, treated, stored, or disposed of any hazardous 
waste and knew that he thereby placed another person in imminent danger 
of death or serious bodily injury.
1172  Knowing Disposal and/or Storage and Treatment of Hazardous Waste 
          Without a Permit; Transportation of Hazardous Waste to an 
          Unpermitted Facility [Re: 42 U.S.C. 6928(d)(1-2)]

    (a) If death results, grade as Category Six;
    (b) If (1) serious bodily injury results; or (2) a substantial 
potential for death or serious bodily injury in the future results; or 
(3) a substantial disruption to the environment results (e.g., estimated 
cleanup cost exceeds $200,000, or a community is evacuated for more than 
72 hours), grade as Category Five;
    (c) If (1) bodily injury results, or (2) a significant disruption to 
the environment results (e.g., estimated cleanup costs of $40,000-
$200,000, or a community is evacuated for 72 hours or less), grade as 
Category Four;
    (d) Otherwise, grade as Category Three;
    (e) Exception: Where the offender is a non-managerial employee 
(i.e., a truck driver or loading dock worker) acting under the orders of 
another person, grade as two categories below the underlying offense, 
but not less than Category One.

                 Chapter Twelve  Miscellaneous Offenses

    If an offense behavior is not listed, the proper category may be 
obtained by comparing the severity of the offense behavior with those of 
similar offense behaviors listed in Chapters One-Eleven. If, and only 
if, an offense behavior cannot be graded by reference to Chapters One-
Eleven, the following formula may be used as a guide.

                                                                        
------------------------------------------------------------------------
 Maximum sentence authorized by statute (not necessarily the    Grading 
                      sentence imposed)                       (category)
------------------------------------------------------------------------
< 2 years...................................................         1  
2 to 3 years................................................         2  
4 to 5 years................................................         3  
6 to 10 years...............................................         4  
11 to 20 years..............................................         5  
21 to 29 years..............................................         6  
30 years to life............................................         7  
------------------------------------------------------------------------

             Chapter Thirteen  General Notes and Definitions

                       Subchapter A--General Notes

    1. If an offense behavior can be classified under more than one 
category, the most serious applicable category is to be used.
    2. If an offense behavior involved multiple separate offenses, the 
severity level may be increased. Exception: in cases graded as Category 
Seven, multiple separate offenses are to be taken into account by 
consideration of a decision above the guidelines rather than by 
increasing the severity level.
    (a) In certain instances, the guidelines specify how multiple 
offenses are to be rated. In offenses rated by monetary loss (e.g., 
theft and related offenses, counterfeiting, tax evasion) or drug 
offenses, the total amount of the property or drugs involved is used as 
the basis for the offense severity rating. In instances not specifically 
covered in the guidelines, the decision-makers must exercise discretion 
as to whether or not the multiple offense behavior is sufficiently 
aggravating to justify increasing the severity

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rating. The following chart is intended to provide guidance in assessing 
whether the severity of multiple offenses is sufficient to raise the 
offense severity level; it is not intended as a mechanical rule.

                       Multiple Separate Offenses                       
------------------------------------------------------------------------
             Severity               Points        Severity        Points
------------------------------------------------------------------------
Category One.....................    = 1/9  Category Five......      = 9
Category Two.....................    = 1/3  Category Six.......     = 27
Category Three...................     =  1  Category Seven.....     = 45
Category Four....................     =  3  ...................  .......
------------------------------------------------------------------------

Examples: 3 Category Five Offense [3x(9)=27]=Category Six, 5 Category 
          Five Offenses [5x(9)=45]=Category Seven, 2 Category Six 
          Offenses [2x(27)=54]=Category Seven

    (b) The term `multiple separate offenses' generally refers to 
offenses committed at different times. However, there are certain 
circumstances in which offenses committed at the same time are properly 
considered multiple separate offenses for the purpose of establishing 
the offense severity rating. These include (1) unrelated offenses, and 
(2) offenses involving the unlawful possession of weapons during 
commission of another offense.
    (c) For offenses graded according to monetary value (e.g., theft) 
and drug offenses, the severity rating is based on the amount or 
quantity involved and not on the number of separate instances.
    (d) Intervening Arrests. Where offenses ordinarily graded by 
aggregation of value/quantity (e.g., property or drug offenses) are 
separated by an intervening arrest, grade (1) by aggregation of value/
quantity or (2) as multiple separate offenses, whichever results in a 
higher severity category.
    (e) Income Tax Violations Related to Other Criminal Activity. Where 
the circumstances indicate that the offender's income tax violations are 
related to failure to report income from other criminal activity (e.g., 
failure to report income from a fraud offense) grade as tax evasion or 
according to the underlying criminal activity established, whichever is 
higher. Do not grade as multiple separate offenses.
    3. In cases where multiple sentences have been imposed (whether 
consecutive or concurrent, and whether aggregated or not) an offense 
severity rating shall be established to reflect the overall severity of 
the underlying criminal behavior. This rating shall apply whether or not 
any of the component sentences have expired.
    4. The prisoner is to be held accountable for his own actions and 
actions done in concert with others; however, the prisoner is not to be 
held accountable for activities committed by associates over which the 
prisoner has no control and could not have been reasonably expected to 
foresee. However, if the prisoner has been convicted of a conspiracy, he 
must be held accountable for the criminal activities committed by his 
co-conspirators, provided such activities were committed in furtherance 
of the conspiracy and subsequent to the date the prisoner joined the 
conspiracy. However, if the prisoner has been convicted of a conspiracy, 
he must be held accountable for the criminal activities committed by his 
co-conspirators, provided such activities were committed in furtherance 
of the conspiracy and subsequent to the date the prisoner joined the 
conspiracy, except in the case of an independent, small-scale operator 
whose role in the conspiracy was neither established nor significant. An 
offender has an ``established'' role in a conspiracy if, for example, he 
takes orders to perform a function that assist others to further the 
objectives of the conspiracy, even if his activities did not 
significantly contribute to those objectives. For such offenders, 
however, a ``peripheral role'' reduction may be considered.
    5. The following are examples of circumstances that may be 
considered as aggravating factors: extreme cruelty or brutality to a 
victim; the degree of permanence or likely permanence of serious bodily 
injury resulting from the offender's conduct; an offender's conduct 
while attempting to evade arrest that causes circumstances creating a 
significant risk of harm to other persons (e.g., causing a high speed 
chase or provoking the legitimate firing of a weapon by law enforcement 
officers).
    6. The phrase ``may be considered an aggravating/mitigating factor'' 
is used in this index to provide guidance concerning certain 
circumstances which may warrant a decision above or below the 
guidelines. This does not restrict consideration of above or below 
guidelines decisions only to these circumstances, nor does it mean that 
a decision above or below the guidelines is mandated in every such case.

                        Subchapter B--Definitions

    1. ``Accessory after the fact'' refers to the conduct of one who, 
knowing an offense has been committed, assists the offender to avoid 
apprehension, trial, or punishment (e.g., by assisting in disposal of 
the proceeds of an offense).

    Note: Where the conduct consists of concealing an offense by making 
false statements not under oath, grade as ``misprision of felony''. 
Where the conduct consists of haboring a fugitive, grade as ``harboring 
a fugitive''.

    2. ``Assassination kit'' refers to a disguised weapon designed to 
kill without attracting attention. Unlike other weapons such as sawed-
off shotguns which can be used to intimidate, assassination kits are 
intended to

[[Page 117]]

be undetectable in order to make the victim and bystanders unaware of 
the threat. A typical assassination kit is usually, but not always, a 
firearm with a silencer concealed in a briefcase or similar disguise and 
fired without showing the weapon.
    3. ``Bodily injury'' refers to injury of a type normally requiring 
medical attention [e.g., broken bone(s), laceration(s) requiring 
stitches, severe bruises].
    4. ``Carnal knowledge'' refers to sexual intercourse with a female 
who is less than 16 years of age and is not the wife of the offender.
    5. ``Extortionate extension of credit'' refers to any extension of 
credit with respect to which it is the understanding of the creditor and 
the debtor at the time it is made that delay in making repayment or 
failure to make repayment could result in the use of violence or other 
criminal means to cause harm to the person, reputation, or property of 
any person.
    6. ``Failure to appear'' refers to the violation of court imposed 
conditions of release pending trial, appeal, or imposition or execution 
of sentence by failure to appear before the court or to surrender for 
service of sentence.
    7. ``Forcible felony'' includes, but shall not be limited to, 
kidnaping, rape or sodomy, aircraft piracy or interference with a flight 
crew, arson or property destruction offenses, escape, robbery, 
extortion, or criminal entry offenses, and attempts to commit such 
offenses.
    8. ``Involuntary manslaughter'' refers to the unlawful killing of a 
human being without malice in the commission of an unlawful act not 
amounting to a felony, or in the commission in a unlawful manner, or 
without due caution and circumspection, of a lawful act which might 
produce death.
    9. ``Misprision of felony'' refers to the conduct of one who, having 
knowledge of the actual commission of a felony, conceals and does not as 
soon as possible make known the same to some judge or other person in 
civil or military authority. The ``concealment'' described above 
requires an act of commission (e.g., making a false statement to a law 
enforcement officer).
    10. ``Murder'' refers to the unlawful killing of a human being with 
malice aforethought. ``With malice aforethought'' generally refers to a 
finding that the offender formed an intent to kill or do serious bodily 
harm to the victim without just cause or provocation.
    11. ``Opiate'' includes heroin, morphine, opiate derivatives, and 
synthetic opiate substitutes.
    12. ``Other illicit drug offenses'' include, but are not limited to, 
offenses involving the following: amphetamines, hallucinogens, 
barbiturates, methamphetamines, and phencyclidine (PCP).
    13. ``Other medium of exchange'' includes, but is not limited to, 
postage stamps, governmental money orders, or governmental coupons 
redeemable for cash or goods.
    14. ``Peripheral role'' in drug offenses refers to conduct such as 
that of a person hired as a deckhand on a marijuana boat, a person hired 
to help offload marijuana, a person with no special skills hired as a 
simple courier of drugs on a commerical airline flight, or a person 
hired as a chauffeur in a drug transaction. This definition does not 
include persons with decision-making or supervisory authority, persons 
with relevant special skills (e.g., a boat captain, chemist, or airplane 
pilot), or persons who finance such operations. Individuals who 
transport unusually large amounts of drugs (e.g., 50 kilos of cocaine or 
more) or who otherwise appear to have a high degree of trust, 
professionalism, or control will be considered to be ``transporters'' 
and not ``simple couriers.''
    15. ``Protected person'' refers to a person listed in 18 U.S.C. 351 
(relating to Members of Congress), 1116 (relating to foreign officials, 
official guests, and internationally protected persons), or 1751 
(relating to presidential assassination and officials in line of 
succession).
    16. ``Serious bodily injury'' refers to injury creating a 
substantial risk of death, major disability or loss of a bodily 
function, or disfigurement.
    17. ``Serious bodily injury is the result intended'' refers to a 
limited category of offense behaviors where the circumstances indicate 
that the bodily injury intended was serious (e.g., throwing acid in a 
person's face, or firing a weapon at a person) but where it is not 
established that murder was the intended object. Where the circumstances 
establish that murder was the intended object, grade as an `attempt to 
murder'.
    18. ``Sexual exploitation of children'' refers to employing, using, 
inducing, enticing, or coercing a person less than 18 years of age to 
engage in any sexually explicit conduct for the purpose of producing a 
visual or print medium depicting such conduct with knowledge or reason 
to know that such visual or print medium will be distributed for sale, 
transported in interstate or foreign commerce, or mailed. It also 
includes knowingly transporting, shipping, or receiving such visual or 
print medium for the purposes of distributing for sale, or knowingly 
distribution for sale such visual or print medium.
    19. ``Trafficking in stolen property'' refers to receiving stolen 
property with intent to sell.
    20. The ``value of the property'' is determined by estimating the 
actual or potential replacement cost to the victim. The ``actual 
replacement cost'' is the value or money permanently lost to the victim 
through theft/forgery/fraud. The ``potential replacement

[[Page 118]]

cost'' refers to the total loss the offender specifically intended to 
cause by theft/forgery/fraud, or the total amount of the victim's money 
or property unlawfully exposed to risk of loss through theft/forgery/
fraud notwithstanding subsequent recovery by the victim. The highest of 
these three values is the value to be used in rating the offense on the 
guidelines.
    21. ``Voluntary manslaughter'' refers to the unlawful killing of a 
human being without malice upon a sudden quarrel or heat of passion.''

                      SALIENT FACTOR SCORING MANUAL

    The following instructions serve as a guide in computing the salient 
factor score.

ITEM A. PRIOR CONVICTIONS/ADJUDICATIONS (ADULT OR JUVENILE) [[None = 3; 
          One = 2; Two or three = 1; Four or more. . . . = 0]]

    A.1  In General. Count all convictions/adjudications (adult or 
juvenile) for criminal offenses (other than the current offense) that 
were committed prior to the present period of confinement, except as 
specifically noted. Convictions for prior offenses that are charged or 
adjudicated together (e.g., three burglaries) are counted as a single 
prior conviction, except when such offenses are separated by an 
intervening arrest (e.g., three convictions for larceny and a conviction 
for an additional larceny committed after the arrest for the first three 
larcenies would be counted as two prior convictions, even if all four 
offenses were adjudicated together). Do not count the current federal 
offense or state/local convictions resulting from the current federal 
offense (i.e., offenses that are considered in assessing the severity of 
the current offense). Exception: Where the first and last overt acts of 
the current offense behavior are separated by an intervening federal 
conviction (e.g., after conviction for the current federal offense, the 
offender commits another federal offense while on appeal bond), both 
offenses are counted in assessing offense severity; the earlier offense 
is also counted as a prior conviction in the salient factor score.
    A.2  Convictions. (a) Felony convictions are counted. Non-felony 
convictions are counted, except as listed under (b) and (c). Convictions 
for driving while intoxicated/while under the influence/while impaired, 
or leaving the scene of an accident involving injury or an attended 
vehicle are counted. For the purpose of scoring Item A of the salient 
factor score, use the offense of conviction.
    (b) Convictions for the following offenses are counted only if the 
sentence resulting was a commitment of more than thirty days (as defined 
in item B) or probation of one year or more (as defined in Item E), or 
if the record indicates that the offense was classified by the 
jurisdiction as a felony (regardless of sentence):
    1. Contempt of court;
    2. Disorderly conduct/disorderly person/breach of the peace/
disturbing the peace/uttering loud and abusive language;
    3. Driving without a license/with a revoked or suspended license/
with a false license;
    4. False information to a police officer;
    5. Fish and game violations;
    6. Gambling (e.g., betting on dice, sports, cards) [Note: Operation 
or promotion of or employment in an unlawful gambling business is not 
included herein];
    7. Loitering;
    8. Non-support;
    9. Prostitution;
    10. Resisting arrest/evade and elude;
    11. Trespassing;
    12. Reckless driving;
    13. Hindering/failure to obey a police officer;
    14. Leaving the scene of an accident (except as listed under (a)).
    (c) Convictions for certain minor offenses are not counted, 
regardless of sentence. These include:
    1. Hitchhiking;
    2. Local regulatory violations;
    3. Public intoxication/possession of alcohol by a minor/possession 
of alcohol in an open container;
    4. Traffic violations (except as specifically listed);
    5. Vagrancy/vagabond and rogue;
    6. Civil contempt.
    A.3  Juvenile Conduct. Count juvenile convictions/adjudications 
except as follows:
    (a) Do not count any status offense (e.g., runaway, truancy, 
habitual disobedience) unless the behavior included a criminal offense 
which would otherwise be counted;
    (b) Do not count any criminal offense committed at age 15 or less, 
unless it resulted in a commitment of more than 30 days.
    A.4  Military Conduct. Count military convictions by general or 
special court-martial (not summary court-maritial or Article 15 
disciplinary proceeding) for acts that are generally prohibited by 
civilian criminal law (e.g., assault, theft). Do not count convictions 
for strictly military offenses. Note: This does not preclude 
consideration of serious or repeated military misconduct as a negative 
indicant of parole prognosis (i.e., a possible reason for overriding the 
salient factor score in relation to this item).
    A.5  Diversion. Conduct resulting in diversion from the judicial 
process without a finding of guilt (e.g., deferred prosecution, 
probation without plea) is not to be counted in scoring this item. 
However, behavior resulting in a judicial determination of guilt or an 
admission of guilt before a judicial body shall be counted as a 
conviction even if a conviction is not formally entered.

[[Page 119]]

    A.6  Setting Aside of Convictions/Restoration of Civil Rights 
Setting aside or removal of juvenile convictions/adjudications is 
normally for civil purposes (to remove civil penalties and stigma). Such 
convictions/adjudications are to be counted for purposes of assessing 
parole prognosis. This also applies to adult convictions/adjudications 
which may be set aside by various methods (including pardon). However, 
convictions/adjudications that were set aside or pardoned on grounds of 
innocence are not to be counted.
    A.7  Convictions Reversed or Vacated on Grounds of Constitutional or 
Procedural Error. Exclude any conviction reversed or vacated for 
constitutional or procedural grounds, unless the prisoner has been 
retried and reconvicted. It is the Commission's presumption that a 
conviction/adjudication is valid, except under the limited circumstances 
described in the first note below. If a prisoner challenges such 
conviction he/she should be advised to petition for a reversal of such 
conviction in the court in which he/she was originally tried, and then 
to provide the Commission with evidence of such reversal. Note: 
Occasionally the presentence report documents facts clearly indicating 
that a conviction was unconstitutional for deprivation of counsel [this 
occurs only when the conviction was for a felony, or for a lesser 
offense for which imprisonment was actually imposed; and the record is 
clear that the defendant (1) was indigent, and (2) was not provided 
counsel, and (3) did not waive counsel]. In such case, do not count the 
conviction. Similarly, do not count a conviction if: (1) the offender 
has petitioned the appropriate court to overturn a felony conviction 
that occurred prior to 1964, or a misdemeanor/petty offense conviction 
that occurred prior to 1973 (and the offender claims he served a jail 
sentence for the non-felony conviction); (2) the offender asserts he was 
denied his right to counsel in the prior conviction; and (3) the 
offender provides evidence (e.g., a letter from the court clerk) that 
the records of the prior conviction are unavailable. Note: If a 
conviction found to be invalid is nonetheless supported by persuasive 
information that the offender committed the criminal act, this 
information may be considered as a negative indicant of parole prognosis 
(i.e., a possible reason for overriding the salient factor score).
    A.8  Ancient Prior Record. If both of the following conditions are 
met: (1) The offender's only countable convictions under Item A occurred 
at least ten years prior to the commencement of the current offense 
behavior (the date of the last countable conviction under Item A refers 
to the date of the conviction, itself, not the date of the offense 
leading to conviction), and (2) there is at least a ten year commitment 
free period in the community (including time on probation or parole) 
between the last release from a countable commitment (under Item B) and 
the commencement of the current offense behavior; then convictions/
commitments prior to the above ten year period are not to be counted for 
purposes of Item A, B, or C. Note: This provision does not preclude 
consideration of earlier behavior (e.g., repetition of particularly 
serious or assaultive conduct) as a negative indicant of parole 
prognosis (i.e., a possible reason for overriding the salient factor 
score). Similarly, a substantial crime free period in the community, not 
amounting to ten years, may, in light of other factors, indicate that 
the offender belongs in a better risk category than the salient factor 
score indicates.
    A.9  Foreign Convictions. Foreign convictions (for behavior that 
would be criminal in the United States) are counted.
    A.10  Tribal Court Convictions. Tribal court convictions are counted 
under the same terms and conditions as any other conviction.
    A.11  Forfeiture of Collateral. If the only known disposition is 
forfeiture of collateral, count as a conviction (if a conviction for 
such offense would otherwise be counted).
    A.12  Conditional/Unconditional Discharge (New York State). In N.Y. 
State, the term ``conditional discharge'' refers to a conviction with a 
suspended sentence and unsupervised probation; the term ``unconditional 
discharge'' refers to a conviction with a suspended sentence. Thus, such 
N.Y. State dispositions for countable offenses are counted as 
convictions.
    A.13 Adjudication Withheld (Florida). In Florida, the term 
``adjudication withheld'' refers to a disposition in which a formal 
conviction is not entered at the time of sentencing, the purpose of 
which is to allow the defendant to retain his civil rights and not to be 
classified as a convicted felon. Since the disposition of adjudication 
withheld is characterized by an admission of guilt and/or a finding of 
guilt before a judicial body, dispositions of ``adjudication withheld'' 
are to be counted as convictions for salient factor scoring purposes. 
However, it is not considered a conviction on which forfeiture of street 
time can be based.

ITEM B. PRIOR COMMITMENTS OF MORE THAN THIRTY DAYS (ADULT OR JUVENILE) 
          [[None=-2; One or two=1; Three or more=0]]

    B.1  Count all prior commitments of more than thirty days (adult or 
juvenile) resulting from a conviction/adjudication listed under Item A, 
except as noted below. Also count commitments of more than thirty days 
imposed upon revocation of probation or parole where the original 
probation or parole resulted from a conviction/adjudication counted 
under Item A.
    B.2  Count only commitments that were imposed prior to the 
commission of the last

[[Page 120]]

overt act of the current offense behavior. Commitments imposed after the 
current offense are not counted for purposes of this item. Concurrent or 
consecutive sentences (whether imposed as the same time or at different 
times) that result in a continuous period of confinement count as a 
single commitment. However, a new court commitment of more than thirty 
days imposed for an escape/attempted escape or for criminal behavior 
committed while in confinement/escape status counts as a separate 
commitment.
    B.3  Definitions. (a) This item only includes commitments that were 
actually imposed. Do not count a suspended sentence as a commitment. Do 
not count confinement pending trial or sentencing or for study and 
observation as a commitment unless the sentence is specifically to 
``time served''. If a sentence imposed is subsequently reconsidered and 
reduced, do not count as a commitment if it is determined that the total 
time served, including jail time, was 30 days or less. Count a sentence 
to intermittent confinement (e.g., weekends) totalling more than 30 
days.
    (b) This item includes confinement in adult or juvenile 
institutions, and residential treatment centers. It does not include 
foster home placement. Count confinement in a community treatment center 
when part of a committed sentence. Do not count confinement in a CTC 
when imposed as a condition of probation or parole. Do not count self-
commitment for drug or alcohol treatment.
    (c) If a committed sentence of more then thirty days is imposed 
prior to the current offense but the offender avoids or delays service 
of the sentence (e.g., by absconding, escaping, bail pending appeal), 
count as a prior commitment. Note: Where the subject unlawfully avoids 
service of a prior commitment by escaping or failing to appear for 
service of sentence, this commitment is also to be considered in Items D 
and E. Example: An offender is sentenced to a term of three years 
confinement, released on appeal bond, and commits the current offense. 
Count as a previous commitment under Item B, but not under Items D and 
E. To be considered under Items D and E, the avoidance of sentence must 
have been unlawful (e.g., escape or failure to report for service or 
sentence).

ITEM C. AGE AT COMMENCEMENT OF THE CURRENT OFFENSE/PRIOR COMMITMENTS OF 
          MORE THAN THIRTY DAYS (ADULT OR JUVENILE)

    C.1  Score 2 if the subject was 26 years of age or more at the 
commencement of the current offense and has fewer than five prior 
commitments.
    C.2  Score 1 if the subject was 20-25 years of age at the 
commencement of the current offense and has fewer than five prior 
commitments.
    C.3  Score 0 if the subject was 19 years of age or less at the 
commencement of the current offense, or if the subject has five or more 
prior commitments.
    C.4  Definitions. (a) Use the age at the commencement of the 
subject's current federal offense behavior, except as noted under 
special instructions for federal probation/parole/confinement/escape 
status violators.
    (b) Prior commitment is defined under Item B.

ITEM D. RECENT COMMITMENT FREE PERIOD (THREE YEARS)

    D.1  Score 1 if the subject has no prior commitments; or if the 
subject was released to the community from his/her last prior commitment 
at least three years prior to commencement of his/her current offense 
behavior.
    D.2  Score 0 if the subject's last release to the community from a 
prior commitment occurred less than three years prior to the current 
offense behavior; or if the subject was in confinement/escape status at 
the time of the current offense.
    D.3  Definitions. (a) Prior commitment is defined under Item B.
    (b) Confinement/escape status is defined under Item E.
    (c) Release to the community means release from confinement status 
(e.g., a person paroled through a CTC is released to the community when 
released from the CTC, not when placed in the CTC).

ITEM E. PROBATION/PAROLE/CONFINEMENT/ESCAPE STATUS VIOLATOR THIS TIME

    E.1  Score 1 if the subject was not on probation or parole, nor in 
confinement or escape status at the time of the current offense 
behavior; and was not committed as a probation, parole, confinement, or 
escape status violator this time.
    E.2  Score 0 if the subject was on probation or parole or in 
confinement or escape status at the time of the current offense 
behavior; or if the subject was committed as a probation, parole, 
confinement, or escape status violator this time.
    E.3  Definitions. (a) The term probation/parole refers to a period 
of federal, state, or local probation or parole supervision. 
Occasionally, a court disposition such as `summary probation' or 
`unsupervised probation' will be encountered. If it is clear that this 
disposition involved no attempt at supervision, it will not be counted 
for purposes of this item. Note: Unsupervised probation/parole due to 
deportation is counted in scoring this item.
    (b) The term `parole' includes parole, mandatory parole, conditional 
release, or mandatory release supervision (i.e., any form of supervised 
release).
    (c) The term `confinement/escape status' includes institutional 
custody, work or

[[Page 121]]

study release, pass or furlough, community treatment center confinement, 
or escape from any of the above.

ITEM F. HISTORY OF HEROIN/OPIATE DEPENDENCE

    F.1  Score 1 if the subject has no history of heroin or opiate 
dependence.
F.2  Score 0 if the subject has any record of heroin or opiate 
dependence.
    F.3  Ancient Heroin/Opiate Record. If the subject has no record of 
heroin/opiate dependence within ten years (not counting any time spent 
in confinement), do not count a previous heroin/opiate record in scoring 
this item.
    F.4  Definition. For calculation of the salient factor score, the 
term `heroin/opiate dependence' is restricted to dependence on heroin, 
morphine, or dilaudid. Dependence refers to physical or psychological 
dependence, or regular or habitual usage. Abuse of other opiate or non-
opiate substances is not counted in scoring this item. However, this 
does not preclude consideration of serious abuse of a drug not listed 
above as a negative indicant of parole prognosis (i.e., a possible 
reason for overriding the salient factor score in relation to this 
item).

ITEM G. OLDER OFFENDERS

    G.1  Score 1 if the offender was 41 years of age or more at the 
commencement of the current offense and the total score from Items A-F 
is 9 or less.
    G.2  Score 0 if the offender was less than 41 years of age at the 
commencement of the current offense or if the total score from Items A-F 
is 10.

            Special Instructions--Federal Probation Violators

    Item A  Count the original federal offense as a prior conviction. Do 
not count the conduct leading to probation revocation as a prior 
conviction.
    Item B  Count all prior commitments of more than thirty days which 
were imposed prior to the behavior resulting in the current probation 
revocation. If the subject is committed as a probation violator 
following a `split sentence' for which more than thirty days were 
served, count the confinement portion of the `split sentence' as a prior 
commitment. Note: The prisoner is still credited with the time served 
toward the current commitment.
    Item C  Use the age at commencement of the probation violation, not 
the original offense.
    Item D  Count backwards three years from the commencement of the 
probation violation.
    Item E  By definition, no point is credited for this item. 
Exception: A case placed on unsupervised probation (other than for 
deportation) would not lose credit for this item.
    Item F  No special instructions.
    Item G  Use the age at commencement of the probation violation, not 
the original offense.

             Special Instructions--Federal Parole Violators

    Item A  The conviction from which paroled counts as a prior 
conviction.
    Item B  The commitment from which paroled counts as a prior 
commitment.
    Item C  Use the age at commencement of the new criminal behavior/
parole violation behavior.
    Item D  Count backwards three years from the commencement of the new 
criminal behavior/parole violation behavior.
    Item E  By definition, no point is credited for this item.
    Item F  No special instructions.
    Item G  Use the age at commencement of the new criminal/parole 
violation behavior.

 Special Instructions--Federal Confinement/Escape Status Violators With 
                 New Criminal Behavior in the Community

    Item A  The conviction being served at the time of the confinement/
escape status violation counts as a prior conviction.
    Item B  The commitment being served at the time of the confinement/
escape status violation counts as a prior commitment.
    Item C  Use the age at commencement of the confinement/escape status 
violation.
    Item D  By definition, no point is credited for this item.
    Item E  By definition, no point is credited for this item.
    Item F  No special instructions.
    Item G  Use the age at commencement of the confinement/escape status 
violation.

(18 U.S.C. 4203(a)(1); 18 U.S.C. 4204(a)(6))

[47 FR 56336, Dec. 16, 1982]

    Editorial Note: For Federal Register citations affecting Sec. 2.20, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 2.21  Reparole consideration guidelines.

    (a)(1) If revocation is based upon administrative violation(s) only, 
grade the behavior as if a Category One offense under Sec. 2.20.
    (2) If a finding is made that the prisoner has engaged in behavior 
constituting new criminal conduct, the appropriate severity rating for 
the new criminal behavior shall be calculated. New criminal conduct may 
be determined either by a new federal, state, or local conviction or by 
an independent finding by the Commission at revocation hearing. As 
violations may be for

[[Page 122]]

state or local offenses, the appropriate severity level may be 
determined by analogy with listed federal offense behaviors.
    (b) The guidelines for parole consideration specified at 28 CFR 2.20 
shall then be applied with the salient factor score recalculated. The 
conviction and commitment from which the offender was released shall be 
counted as a prior conviction and commitment.
    (c) Time served on a new state or federal sentence shall be counted 
as time in custody for reparole guideline purposes. This does not affect 
the computation of the expiration date of the violator term as provided 
by Secs. 2.47(d) and 2.52 (c) and (d).
    (d) The above are merely guidelines. A decision outside these 
guidelines (either above or below) may be made when circumstances 
warrant.

[50 FR 40368, Oct. 3, 1985]



Sec. 2.22  Communication with the Commission.

    Attorneys, relatives, or interested parties wishing a personal 
interview to discuss a specific case with a representative of the 
Commission must submit a written request to the appropriate office 
setting forth the nature of the information to be discussed. Such 
interview may be conducted by a Commissioner or assigned staff, and a 
written summary of each such interview shall be prepared and placed in 
the prisoner's file.

[43 FR 22707, May 28, 1978]



Sec. 2.23  Delegation to hearing examiners.

    (a) There is hereby delegated to hearing examiners the authority 
necessary to conduct hearings and to make recommendations relative to 
the grant or denial of parole or reparole, revocation or reinstatement 
of parole or mandatory release, and conditions of parole. Any hearing 
may be conducted by a single examiner or by a panel of examiners. A 
Executive Hearing Examiner shall function as a hearing examiner for the 
purpose of obtaining a panel recommendation whenever the Regional 
Commissioner has not ordered that a hearing be conducted by a panel of 
two examiners.
    (b) The concurrence of two hearing examiners, or of a hearing 
examiner and the Executive Hearing Examiner, shall be required to obtain 
a panel recommendation to the Regional Commissioner. A panel 
recommendation is required in each case decided by a Regional 
Commissioner after the holding of a hearing.
    (c) An examiner panel recommendation consists of two concurring 
examiner votes. In the event of divergent votes, the case shall be 
referred to another hearing examiner (or to the Executive Hearing 
Examiner in the case of a hearing conducted by a panel of examiners) for 
another vote. If concurring votes do not result from such a referral, 
the case shall be referred to any available hearing examiner until a 
panel recommendation is obtained.
    (d) A recommendation of a hearing examiner panel shall become an 
effective Commission decision only upon the Regional Commissioner's 
approval, and docketing at the regional office.

[44 FR 3408, Jan. 16, 1979, as amended at 45 FR 84052, Dec. 12, 1980; 59 
FR 45625, Sept. 2, 1994; 60 FR 51349, Oct. 2, 1995]



Sec. 2.24  Review of panel recommendation by the Regional Commissioner.

    (a) A Regional Commissioner may review the recommendation of any 
examiner panel and refer this recommendation, prior to written 
notification to the prisoner, with his recommendation and vote to the 
National Commissioners for consideration and any action deemed 
appropriate. Written notice of this referral action shall be mailed or 
transmitted to the prisoner within twenty-one days of the date of the 
hearing. The Regional Commissioner and each National Commissioner shall 
have one vote and decisions shall be based upon the concurrence of two 
votes. Action shall be taken by the National Commissioners within thirty 
days of the date of referral action by the Regional Commissioner, except 
in emergencies.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
a Regional Commissioner may:
    (1) On his own motion, modify or reverse the recommendation of a 
hearing examiner panel that is outside the guidelines to bring the 
decision closer

[[Page 123]]

to (or to) the nearer limit of the appropriate guideline range; or
    (2) On his own motion, modify the recommendation of a hearing 
examiner panel to bring the decision to a date not to exceed six months 
from the date recommended by the examiner panel;
    (3) Return the case to the institution for a rehearing, provided 
that a notice of action is sent to the prisoner specifying the purpose 
of the rehearing;
    (4) Designate the case for the original jurisdiction of the 
Commission pursuant to Sec. 2.17.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 84053, Dec. 22, 1980; 46 
FR 35639, July 10, 1981]
Sec. 2.25  [Reserved]



Sec. 2.26  Appeal to National Appeals Board.

    (a) A prisoner or parolee may submit to the National Appeals Board a 
written appeal of any decision to grant (other than a decision to grant 
parole on the date of parole eligibility), rescind, deny, or revoke 
parole, except that any appeal of a Commission decision pursuant to 
Sec. 2.17 shall be pursuant to Sec. 2.27. This appeal must be filed on a 
form provided for that purpose within thirty days from the date of entry 
of such decision. No exhibits are to be attached to an administrative 
appeal unless the documents therein contain new information and 
materials not already in the possession of the Commission. Any submitted 
exhibits which are copies of material already in the Commission's files 
will not be retained by the Commission.
    (b)(1) The National Appeals Board may: Affirm the decision of a 
Regional Commissioner on the vote of a single Commissioner other than 
the Commissioner who issued the decision from which the appeal is taken; 
or modify or reverse the decision of a Regional Commissioner, or order a 
new hearing, upon the concurrence of two Commissioners. The Commissioner 
first reviewing the case may in his discretion circulate the case for 
review and vote by the other Commissioners notwithstanding his own vote 
to affirm the Regional Commissioner's decision. In such event, the case 
shall be decided by the concurrence of two out of three votes.
    (2) All Commissioners serve as members of the National Appeals 
Board, and it shall in no case be an objection to a decision of the 
Board that the Commissioner who issued the decision from which an appeal 
is taken participated as a voting member on appeal.
    (c) The National Appeals Board shall act within sixty days of 
receipt of the appellant's papers, to affirm, modify, or reverse the 
decision. Decisions of the National Appeals Board shall be final.
    (d) If no appeal is filed within thirty days of the date of entry of 
the original decision, such decision shall stand as the final decision 
of the Commission.
    (e) Appeals under this section may be based upon the following 
grounds:
    (1) That the guidelines were incorrectly applied as to any or all of 
the following:
    (i) Severity rating;
    (ii) Salient factor score;
    (iii) Time in custody;
    (2) That a decision outside the guidelines was not supported by the 
reasons or facts as stated;
    (3) That especially mitigating circumstances (for example, facts 
relating to the severity of the offense or the prisoner's probability of 
success on parole) justify a different decision;
    (4) That a decision was based on erroneous information, and the 
actual facts justify a different decision;
    (5) That the Commission did not follow correct procedure in deciding 
the case, and a different decision would have resulted if the error had 
not occurred;
    (6) There was significant information in existence but not known at 
the time of the hearing;
    (7) There are compelling reasons why a more lenient decision should 
be rendered on grounds of compassion.
    (f) Upon the written request of the Attorney General seeking review 
of a decision of a Regional Commissioner, which is received within 30 
days of such decision, the National Appeals Board shall reaffirm, 
modify, or reverse the Regional Commissioner's decision within 60 days 
of receipt of the Attorney General's request. The National Appeals Board 
shall inform the Attorney General and the prisoner to whom the decision 
applies in writing of its

[[Page 124]]

decision and the reasons therefor. In the event the Attorney General 
submits new and significant information that has not previously been 
disclosed to the prisoner prior to a hearing under these rules, the 
National Appeals Board shall act within 60 days to reaffirm, modify or 
reverse the Regional Commissioner's decision, but shall also remand the 
case for a new hearing if its decision is adverse to the prisoner. The 
prisoner shall have disclosure of the new information, and the 
opportunity to dispute that information under Sec. 2.19(c) of this part. 
Following the hearing, the case shall be returned to the National 
Appeals Board, together with a recommendation from the hearing examiner, 
to render a final Commission decision as to the disposition of the case.

[49 FR 44098, Nov. 2, 1984, as amended at 51 FR 32785, Sept. 16, 1986; 
59 FR 40258, Aug. 8, 1994; 61 FR 55743, Oct. 29, 1996]



Sec. 2.27  Petition for reconsideration of original jurisdiction decisions.

    (a) A petition for reconsideration may be filed with the Commission 
in cases decided under the procedure specified in Sec. 2.17 within 
thirty days of the date of such decision. A form is provided for this 
purpose. A petition for reconsideration will be reviewed at the next 
regularly scheduled meeting of the Commission provided the petition is 
received thirty days in advance of such meeting. Petitions received by 
the Commission less than thirty days in advance of a regularly scheduled 
meeting will be reviewed at the next regularly scheduled meeting. The 
concurrence of two Commissioners shall be required to modify or reverse 
the decision for which reconsideration is sought. If such concurrence is 
not obtained, the previous decision shall stand. A decision under this 
rule shall be final.
    (b) Attorneys, relatives, and other interested parties who wish to 
submit written information concerning a petition for reconsideration 
should send such information to the National Appeals Board, United 
States Parole Commission, 5550 Friendship Boulevard, Chevy Chase, 
Maryland 20815. Petitions and all supporting material are to be 
submitted thirty days in advance of the meeting at which such petitions 
will be considered.
    (c) If no petition for reconsideration is filed within 30 days of 
the entry of a decision under Sec. 2.17, that decision shall stand as 
the final decision of the Commission.

[61 FR 13763, Mar. 28, 1996, as amended at 61 FR 55743, Oct. 29, 1996]



Sec. 2.28  Reopening of cases.

    (a) Favorable information. Notwithstanding the appeal procedures of 
Sec. 2.26, the appropriate Regional Commissioner may, on his own motion, 
reopen a case at any time upon the receipt of new information of 
substantial significance favorable to the prisoner. The Regional 
Commissioner may then order a new institutional hearing on the next 
docket, or reverse or modify the decision. The following actions require 
the concurrence of two out of three Commissioners:
    (1) Any modification resulting in a reduction of more than 180 days 
(other than a modification that brings a decision from above the 
appropriate guideline range closer to, or to, the nearer limit of the 
appropriate guideline range);
    (2) Any modification resulting in a decision below the appropriate 
guideline range;
    (3) Reversal of a decision (i.e., any modification of a fifteen-year 
reconsideration hearing decision to a presumptive or effective parole 
date). Decisions requiring a second or additional vote shall be referred 
to the National Commissioners under the procedures of 28 CFR 2.24(a). 
Original jurisdiction cases may be reopened upon the motion of the 
appropriate Regional Commissioner under the procedures of Sec. 2.17.
    (b) Institutional misconduct. Consideration of disciplinary 
infractions and allegations of new criminal conduct occurring after the 
setting of a parole date are subject to the provisions of Sec. 2.14 (in 
the case of a prisoner with a presumptive date) and Sec. 2.34 (in the 
case of a prisoner with an effective date of parole).
    (c) Additional sentences. If a prisoner receives an additional 
concurrent or consecutive federal sentence following his initial parole 
consideration, the Regional Commissioner shall reopen his

[[Page 125]]

case for a new initial hearing on the next regularly scheduled docket to 
consider the additional sentence and reevaluate the case. Such action 
shall void the previous presumptive or effective release date. However, 
a new initial hearing is not mandatory where the Commission has 
previously evaluated the new criminal behavior, which led to the 
additional federal sentence, at a rescission hearing under 28 CFR 2.34; 
except where the new sentence extends the mandatory release date for a 
prisoner previously continued to the expiration of his sentence.
    (d) Conviction after revocation. Upon receipt of information 
subsequent to the revocation hearing that a prisoner whose parole has 
been revoked has sustained a new conviction for conduct while on parole, 
the Regional Commissioner may reopen the case pursuant to 
Sec. 2.52(c)(2) for a special reconsideration hearing on the next 
regularly scheduled docket to consider forfeiture of time spent on 
parole and such further action as may be appropriate. The entry of a new 
order shall void any presumptive or effective release date previously 
established.
    (e) Release planning. When an effective date of parole has been set 
by the Commission, release on that date shall be conditioned upon the 
completion of a satisfactory plan for parole supervision. The 
appropriate Regional Commissioner may on his own motion reconsider any 
case prior to release and may reopen and advance or retard an effective 
parole date for purposes of release planning. Retardation without a 
hearing may not exceed 120 days.
    (f) New adverse information. Upon receipt of new and significant 
adverse information that is not covered by paragraphs (a) through (e) of 
this section, a Commissioner may refer the case to the National 
Commissioners with his recommendation and vote to schedule the case for 
a special reconsideration hearing. Such referral shall automatically 
retard the prisoner's scheduled release date until a final decision is 
reached in the case. The decision to schedule a case for a special 
reconsideration hearing shall be based on the concurrence of two 
Commissioner votes, including the vote of the referring Commissioner. 
The hearing shall be conducted in accordance with the procedures set 
forth in Secs. 2.12 and 2.13. The entry of a new order following such 
hearing shall void the previously established release date.

[44 FR 3406, Jan. 16, 1979, as amended at 46 FR 36138, July 14, 1981; 49 
FR 44098, Nov. 2, 1984; 61 FR 55743, Oct. 29, 1996]



Sec. 2.29  Release on parole.

    (a) A grant of parole shall not be deemed to be operative until a 
certificate of parole has been delivered to the prisoner.
    (b) An effective date of parole shall not be set for a date more 
than nine months from the date of the hearing. Residence in a Community 
Treatment Center as part of a parole release plan generally shall not 
exceed one hundred and twenty days.
    (c) When an effective date of parole falls on a Saturday, Sunday, or 
legal holiday, the Warden of the appropriate institution shall be 
authorized to release the prisoner on the first working day preceding 
such date.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3407, Jan. 16, 1979; 60 
FR 51350, Oct. 2, 1995]



Sec. 2.30  False information or new criminal conduct: Discovery after release.

    If evidence comes to the attention of the Commission after a 
prisoner's release that such prisoner has willfully provided false 
information or misrepresented information deemed significant to his 
application for parole or has engaged in any criminal conduct during the 
current sentence prior to the delivery of the parole certificate, the 
Regional Commissioner may reopen the case pursuant to the procedures of 
Sec. 2.28(f) and order the prisoner summoned or retaken for hearing 
pursuant to the procedures of Secs. 2.49 and 2.50, as applicable, to 
determine whether the order of parole should be cancelled.

[47 FR 36635, Aug. 23, 1982]



Sec. 2.31  Parole to detainers: Statement of policy.

    (a) Where a detainer is lodged against a prisoner, the Commission 
may grant parole if the prisoner in other respects meets the criteria 
set forth in Sec. 2.18.

[[Page 126]]

The presence of a detainer is not in itself a valid reason for the 
denial of parole.
    (b) The Commission will cooperate in working out arrangements for 
concurrent supervision with other jurisdictions where it is feasible and 
where release on parole appears to be justified.



Sec. 2.32  Parole to local or immigration detainers.

    (a) When a State or local detainer is outstanding against a prisoner 
whom the Commission wishes to parole, the Commission may order either of 
the following:
    (1) Parole to the actual physical custody of the detaining 
authorities only. In this event, release is not to be effected except to 
the detainer. When such a detainer is withdrawn, the prisoner is not to 
be released unless and until the Commission makes a new order of parole.
    (2) Parole to the actual physical custody of the detaining 
authorities or an approved plan. In this event, release is to be 
effected to the community if detaining officials withdraw the detainer 
or make no effort to assume custody of the prisoner, providing there is 
an acceptable plan for community supervision.
    (b) When the Commission wishes to parole a prisoner subject to a 
detainer filed by Federal immigration officials, the Commission shall 
order the following: Parole to the actual physical custody of the 
immigration authorities or an approved plan. In this event, release is 
to be effected regardless of whether immigration officials take the 
prisoner into custody, providing there is an acceptable plan for 
community supervision.
    (c) As used in this section ``parole to a detainer'' means release 
to the ``physical custody'' of the authorities who have lodged the 
detainer. Temporary detention in a jail in the county where the 
institution of confinement is located does not constitute release on 
parole to such detainer. If the authorities who lodged the detainer do 
not take the prisoner into custody for any reason, he shall be returned 
to the institution to await further order of the Commission.

[43 FR 38822, Aug. 31, 1978, as amended at 44 FR 3409, Jan. 16, 1979; 44 
FR 31637, June 1, 1979; 44 FR 34494, June 15, 1979; 47 FR 36635, Aug. 
23, 1982]



Sec. 2.33  Release plans.

    (a) A grant of parole is conditioned upon the approval of release 
plans by the Regional Commissioner. In general, the following factors 
are considered as elements in the prisoner's release plan:
    (1) Availability of legitimate employment and an approved residence 
for the prospective parolee; and
    (2) Availability of necessary aftercare for a parolee who is ill or 
who requires special care.
    (b) Generally, parolees will be released only to the place of their 
legal residence unless the Commission is satisfied that another place of 
residence will serve the public interest more effectively or will 
improve the probability of the applicant's readjustment.
    (c) Where the circumstances warrant, the Commission on its own 
motion, or upon recommendation of the probation officer, may require 
that an adviser who is a responsible, reputable, and law-abiding citizen 
living in or near the community in which the releasee will reside be 
available to the releasee. Such advisor shall serve under the direction 
of and in cooperation with the probation officer to whom the parolee is 
assigned.
    (d) When the prisoner has an unsatisfied fine or restitution order, 
a reasonable plan for payment [or performance of services, if so ordered 
by the court] shall, where feasible, be included in the parole release 
plan.

[42 FR 39809, Aug. 5, 1977; 42 FR 44234, Sept. 2, 1977, as amended at 50 
FR 36422, Sept. 6, 1985]



Sec. 2.34  Rescission of parole.

    (a) When an effective date of parole has been set by the Commission, 
release on that date is conditioned upon continued satisfactory conduct 
by the prisoner. If a prisoner granted such a date has been found in 
violation of institution rules by a disciplinary hearing officer or is 
alleged to have committed a new criminal act at any time prior to the 
delivery of the certificate

[[Page 127]]

of parole, the Regional Commissioner shall be advised promptly of such 
information. The prisoner shall not be released until the institution 
has been notified that no change has been made in the Commission's order 
to parole. Following receipt of such information, the Regional 
Commissioner may reopen the case and retard the parole date for up to 90 
days without a hearing, or schedule a rescission hearing under this 
section on the next available docket at the institution or on the first 
docket following return to a federal institution from a Community 
Treatment Center or a state or local halfway house.
    (b) Upon the ordering of a rescission hearing under this section, 
the prisoner shall be afforded written notice specifying the information 
to be considered at the hearing. The notice shall further state that the 
purpose of the hearing will be to decide whether rescission of the 
parole date is warranted based on the charges listed on the notice, and 
shall advise the prisoner of the procedural rights described below.
    (c) A hearing before a disciplinary hearing officer resulting in a 
finding that the prisoner has committed a violation of disciplinary 
rules may be relied upon by the Commission as conclusive evidence of 
institutional misconduct. However, the prisoner will be afforded an 
opportunity to explain any mitigating circumstances, and to present 
documentary evidence in mitigation of the misconduct at the rescission 
hearing.
    (d) In the case of allegations of new criminal conduct committed 
prior to delivery of the parole certificate, the Commission may consider 
documentary evidence and/or written testimony presented by the prisoner, 
arresting authorities, or other persons.
    (e) The prisoner may be represented at a rescission hearing by a 
person of his choice. The function of the prisoner's representative 
shall be to offer a statement following the discussion of the charges 
with the prisoner, and to provide such additional information as the 
examiner panel may require. However, the presiding hearing examiner may 
limit or exclude any irrelevant or repetitious statement.
    (f) The evidence upon which the rescission hearing is to be 
conducted shall be disclosed to the prisoner upon request, subject to 
the exemptions set forth at Sec. 2.55. If the parole grant is rescinded, 
the Commission shall furnish to the prisoner a written statement of its 
findings and the evidence relied upon.

[44 FR 3406, Jan. 16, 1979, as amended at 45 FR 59871, Sept. 11, 1980; 
47 FR 2313, Jan. 15, 1982; 54 FR 15173, Apr. 17, 1989]



Sec. 2.35  Mandatory release in the absence of parole.

    (a) A prisoner shall be mandatorily released by operation of law at 
the end of the sentence imposed by the court less such good time 
deductions as he may have earned through his behavior and efforts at the 
institution of confinement. If released pursuant to 18 U.S.C. 4164, such 
prisoner shall be released, as if on parole, under supervision until the 
expiration of the maximum term or terms for which he was sentenced less 
180 days. If released pursuant to 18 U.S.C. 4205(f), such prisoner shall 
remain under supervision until the expiration of the maximum term or 
terms for which he was sentenced. Insofar as possible, release plans 
shall be completed before the release of any such prisoner.
    (b) It is the Commission's interpretation of the statutory scheme 
for parole and good time that the only function of good time credits is 
to determine the point in a prisoner's sentence when, in the absence of 
parole, the prisoner is to be conditionally released on supervision, as 
described in subsection (a). Once an offender is conditionally released 
from imprisonment, either by parole or mandatory release, the good time 
earned during that period of imprisonment is of no further effect either 
to shorten the period of supervision or to shorten the period of 
imprisonment which the offender may be required to serve for violation 
of parole or mandatory release.

[[Page 128]]

    (c) A prisoner committed under the Youth Corrections Act must be 
initially released conditionally under supervision not later than two 
years before the expiration of the term imposed by the court.

[42 FR 39809, Aug. 5, 1977, as amended at 50 FR 46283, Nov. 7, 1985]



Sec. 2.36  Rescission guidelines.

    (a) The following guidelines shall apply to the sanctioning of 
disciplinary infractions or new criminal behavior committed by a 
prisoner subsequent to the commencement of his sentence and prior to his 
release on parole. These guidelines specify the customary time to be 
served for such behavior which shall be added to the time required by 
the original presumptive or effective date. Credit shall be given 
towards service of these guidelines for any time spent in custody on a 
new offense that has not been credited towards service of the original 
presumptive or effective date. If a new concurrent or consecutive 
sentence is imposed for such behavior, these guidelines shall also be 
applied at the initial hearing on such term.
    (1) Administrative rule infraction(s) (including alcohol abuse) 
normally can be adequately sanctioned by postponing a presumptive or 
effective date by 0-60 days per instance of misconduct, or by 0-8 months 
in the case of use or simple possession of illicit drugs or refusal to 
provide a urine sample. Escape or other new criminal conduct shall be 
considered in accordance with the guidelines set forth below.
    (2) Escape/new criminal behavior in a prison facility (including a 
Community Treatment Center). The time required pursuant to the 
guidelines set forth in paragraphs (a)(2) (i) and (ii) of this section 
shall be added to the time required by the original presumptive or 
effective date.
    (i) Escape or attempted escape--(A) Escape or attempted escape, 
except as listed below--8-16 months.
    (B) If from non-secure custody with voluntary return in 6 days or 
less-- 6 months.
    (C) If by fear or force applied to person(s), grade under (ii) but 
not less than Category Five.

    Notes: (1) If other criminal conduct is committed during the escape 
or during time spent in escape status, then time to be served for the 
escape/attempted escape shall be added to that assessed for the other 
new criminal conduct.
    (2) Time in escape status shall not be credited.
    (3) Voluntary return is defined as returning voluntarily to the 
facility or voluntarily turning one's self in to a law enforcement 
authority as an escapee (not in connection with an arrest on other 
charges).
    (4) Non-secure custody refers to custody with no significant 
physical restraint [e.g., walkaway from a work detail outside the 
security perimeter of an institution; failure to return to any 
institution from a pass or unescorted furlough; or escape by stealth 
from an institution with no physical perimeter barrier (usually a camp 
or community treatment center)].

    (ii) Other new criminal behavior in a prison facility.

------------------------------------------------------------------------
   Severity rating in the new criminal                                  
        behavior (from Sec.  2.20)                Guideline range       
------------------------------------------------------------------------
Category One.............................  <=8 months.                  
Category Two.............................  <=10 months.                 
Category Three...........................  12-16 months.                
Category Four............................  20-26 months.                
Category Five............................  36-48 months.                
Category Six.............................  52-64 months.                
Category Seven...........................  64-92 months.                
Category Eight...........................  120+ months.                 
------------------------------------------------------------------------

    Note: Grade unlawful possession of a firearm or explosives in a 
prison facility, other than a community treatment center, as Category 
Six. Grade unlawful possession of a firearm in a community treatment 
center as Category Four. Grade unlawful possession of a dangerous weapon 
other than a firearm or explosives (e.g., a knife) in a prison facility 
or community treatment center as Category Three.

    (3) New criminal behavior in the community (e.g., while on pass, 
furlough, work release, or on escape). In such cases, the guidelines 
applicable to reparole violators under Sec. 2.21 shall be applied, using 
the new offense severity (from Sec. 2.20) and recalculated salient 
factor score (such score shall be recalculated as if the prisoner had 
been on parole at the time of the new criminal behavior). The time 
required pursuant to these guidelines shall be added to the time 
required by the original presumptive or effective date.

    Note: Offenses committed in a prison or in a Community Treatment 
Center that are not limited to the confines of the prison or Community 
Treatment Center (e.g., mail fraud of

[[Page 129]]

a victim outside the prison) are graded as new criminal behavior in the 
community.

    (b) The above are merely guidelines. Where the circumstances 
warrant, a decision outside the guidelines (above or below) may be 
rendered provided specific reasons are given. For example, a substantial 
period of good conduct since the last disciplinary infraction in cases 
not involving new criminal conduct may be treated as a mitigating 
circumstance.

[45 FR 59871, Sept. 11, 1980, as amended at 51 FR 32072, Sept. 9, 1986; 
52 FR 5763, Feb. 26, 1987; 52 FR 17399, May 8, 1987]



Sec. 2.37  Disclosure of information concerning parolees: Statement of policy.

    (a) Information concerning a parolee under the Commission's 
supervision may be disclosed to a person or persons who may be exposed 
to harm through contact with that particular parolee if such disclosure 
is deemed to be reasonably necessary to give notice that such danger 
exists.
    (b) Information concerning parolees may be released by a Chief U.S. 
Probation Officer to a law enforcement agency (1) as deemed appropriate 
for the protection of the public or the enforcement of the conditions of 
parole or (2) pursuant to a request under 18 U.S.C. 4203(e).

[47 FR 13521, Mar. 31, 1982, as amended at 52 FR 33408, Sept. 3, 1987]



Sec. 2.38  Community supervision by U.S. Probation Officers.

    (a) Pursuant to sections 3655 and 4203(b)(4) of title 18 of the U.S. 
Code, U.S. Probation Officers shall provide such parole services as the 
Commission may request. In conformity with the foregoing, probation 
officers function as parole officers and provide supervision to persons 
released by parole or as if on parole (mandatory release) under the 
Commission's jurisdiction.
    (b) A parolee may be transferred to a new district of supervision 
with the permission of the probation officers of both the transferring 
and receiving district, provided such transfer is not contrary to 
instructions from the Commission.

[44 FR 3409, Jan. 16, 1979]



Sec. 2.39  Jurisdiction of the Commission.

    (a) Jurisdiction of the Commission over a parolee shall terminate no 
later than the date of expiration of the maximum term or terms for which 
he was sentenced, except as provided by Sec. 2.35, Sec. 2.43, or 
Sec. 2.52.
    (b) The parole of any parolee shall run concurrently with the period 
of parole or probation under any other Federal, State, or local 
sentence.
    (c) Upon the termination of jurisdiction, the Commission shall issue 
a certificate of discharge to such parolee and to such other agencies as 
it may determine.

[42 FR 39809, Aug. 5, 1977, as amended at 48 FR 22919, May 23, 1983]



Sec. 2.40  Conditions of release.

    (a) The following conditions are attached to every grant of parole 
and are deemed necessary to provide adequate supervision and to protect 
the public welfare. They are printed on the certificates issued to each 
parolee and mandatory releasee:
    (1) The parolee shall go directly to the district named in the 
certificate (unless released to the custody of other authorities). 
Within three days after his arrival, he shall report to his parole 
adviser, if he has one, and to the U.S. Probation Officer whose name 
appears on the certificate. If in any emergency the parolee is unable to 
get in touch with his parole adviser or his probation officer or his 
office, he shall communicate with the U.S. Parole Commission, Chevy 
Chase, Maryland 20815-7286.
    (2) If the parolee is released to the custody of other authorities, 
and after release from the physical custody of such authorities, he is 
unable to report to the U.S. Probation Officer to whom he is assigned 
within three days, he shall report instead to the nearest U.S. Probation 
Officer.
    (3) The parolee shall not leave the limits fixed by his certificate 
of parole without written permission from the probation officer.
    (4) The parolee shall notify his probation officer within two days 
of any change in his place of residence.
    (5) The parolee shall make a complete and truthful written report 
(on a form provided for that purpose) to his

[[Page 130]]

probation officer between the first and third day of each month, and on 
the final day of parole. He shall also report to his probation officer, 
at other times as the probation officer directs, providing complete and 
truthful information.
    (6) The parolee shall not violate any law, nor shall he associate 
with persons engaged in criminal activity. The parolee shall get in 
touch within two days with his probation officer or office if he is 
arrested or questioned by a law-enforcement officer.
    (7) The parolee shall not enter into any agreement to act as an 
informer or special agent for any law-enforcement agency.
    (8) The parolee shall work regularly unless excused by his probation 
officer, and support his legal dependents, if any, to the best of his 
ability. He shall report within two days to his probation officer any 
changes in employment.
    (9) The parolee shall not drink alcoholic beverages to excess. He 
shall not purchase, possess, use, or administer marihuana or narcotic or 
other habitforming drugs, unless prescribed or advised by a physician. 
The parolee shall not frequent places where such drugs are illegally 
sold, dispensed, used, or given away.
    (10) The parolee shall not associate with persons who have a 
criminal record unless he has permission of his probation officer.
    (11) The parolee shall not possess a firearm or other dangerous 
weapon.

    Note: Such permission may not be considered in cases in which the 
parolee is prohibited from such possession by any federal, state, or 
local law.

    (12) The parolee shall permit confiscation by his Probation Officer 
of any materials which the Probation Officer believes may constitute 
contraband in the parolee's possession and which he observes in plain 
view in the parolee's residence, place of business or occupation, 
vehicle(s), or on his person. The Commission may also, when a reasonable 
basis for doing is presented, modify the conditions of parole to require 
the parolee to permit the U.S. Probation Officer to conduct searches and 
seizures of concealed contraband on the parolee's person, and in any 
building, vehicle, or other area under the parolee's control, at such 
times as the U.S. Probation Officer shall decide.
    (13) The parolee shall make a diligent effort to satisfy any fine, 
restitution order, court costs or assessment, and/or court ordered child 
support or alimony payment that has been, or may be, imposed, and shall 
provide such financial information as may be requested, by his Probation 
Officer, relevant to the payment of the obligation. If unable to pay the 
obligation in one sum, the parolee will cooperate with his Probation 
Officer in establishing an installment payment schedule.
    (14) The parolee shall submit to a drug test whenever ordered by his 
Probation Officer.
    (b) The Commission or a member thereof may at any time modify or add 
to the conditions of release pursuant to this section, on its own motion 
or on the request of the United States Probation Officer supervising the 
parolee. The parolee shall receive notice of the proposed modification 
and unless waived shall have ten days following receipt of such notice 
to express his views thereon. Following such ten day period, the 
Commission shall have 21 days, exclusive of holidays, to order such 
modification of or addition to the conditions of release.
    (c) The Commission may require a parolee to reside in or participate 
in the program of a residential treatment center, or both, for all or 
part of the period of parole.
    (d) The Commission may require a parolee, who is an addict, within 
the meaning of section 4251(a), or a drug dependent person within the 
meaning of section 2(8) of the Public Health Service Act, as amended, to 
participate in the community supervision program authorized by section 
4255 for all or part of the period of parole.
    (e) The Commission may require that a parolee remain at his place of 
residence during nonworking hours and, if the Commission so directs, to 
have compliance with this condition monitored by telephone or electronic 
signaling devices. A condition under this section may be imposed only as 
an alternative to incarceration.

[[Page 131]]

    (f) A parolee may petition the Commission on his own behalf for a 
modification of conditions pursuant to this section.
    (g) The ten-day notice provision of paragraph (b) of this section 
shall not apply to a modification of the conditions of parole
    (1) Following a revocation hearing,
    (2) Upon a finding that immediate modification of the conditions of 
parole is required to prevent harm to the parolee or the public, or
    (3) In response to a request by the parolee under paragraph (f) of 
this section.
    (h) A parolee may appeal an order to impose or modify parole 
conditions under Sec. 2.26 not later than thirty days after the 
effective date of such conditions.
    (i) A prisoner who, having been granted a parole date, subsequently 
refuses to sign the parole certificate, or any other consent form 
necessary to fulfill the conditions of parole, shall be deemed to have 
withdrawn the application for parole as of the date of refusal to sign. 
To be again considered for parole, the prisoner must reapply for parole 
consideration. With respect to prisoners who are required to be released 
to supervision through good time reductions (pursuant to 18 U.S.C 4161 
and 4164), the conditions of parole set forth in this rule, and any 
other special conditions ordered by the Commission, shall be in full 
force and effect upon the established release date regardless of any 
refusal by the releasee to sign the parole certificate.
    (j) Any parolee who absconds from supervision has effectively 
prevented his sentence from expiring. Therefore, the parolee remains 
bound by the conditions of his release and violations committed at any 
time prior to execution of the warrant, whether before or after the 
original expiration date, may be charged as a basis for revocation, and 
a warrant may be supplemented at any time.
    (k) A parolee or mandatory releasee who is released after December 
31, 1988, and who is found by the Commission, after a revocation hearing 
conducted pursuant to these rules, to have been in possession of a 
controlled substance while on parole, shall have his or her parole 
revoked. When considering what action to take with regard to a parolee 
who fails a drug test, the Commission shall consider appropriate 
alternatives to revocation pursuant to 18 U.S.C. 4209(a). In no case 
shall parole be revoked upon the basis of a single, unconfirmed positive 
drug test that is challenged by the parolee, without other violations 
having been found to justify such revocation.
    (l)(1) The Commission may require a parolee, when there is evidence 
of prior or current alcohol dependence or abuse, to participate in an 
alcohol aftercare treatment program. In such a case, the Commission will 
require that the parolee abstain from the use of alcohol and/or all 
other intoxicants during and after the course of treatment.
    (2) The Commission may require a parolee, where there is evidence of 
prior or current drug dependence or abuse, to participate in a drug 
treatment program, which shall include at least two periodic tests to 
determine whether the parolee has reverted to the use of drugs 
(including alcohol). In such a case, the Commission will require that 
the parolee abstain from the use of alcohol and/or all other intoxicants 
during and after the course of treatment. A decision by the Commission 
not to impose this special condition shall constitute good cause for 
suspension of the drug testing requirements of 18 U.S.C. 4209(a). In the 
event such condition is imposed prior to an eligible prisoner's release 
from prison, any grant of parole or reparole shall be contingent upon 
the prisoner passing all pre-release drug tests administered by the U.S. 
Bureau of Prisons.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 84054, Dec. 22, 1980; 46 
FR 52354, Oct. 27, 1981; 48 FR 22917, May 23, 1983; 48 FR 23184, May 24, 
1983; 49 FR 6717, Feb. 23, 1984; 49 FR 44098, Nov. 2, 1984; 50 FR 28101, 
July 10, 1985; 50 FR 36422, Sept. 6, 1985; 54 FR 11687, Mar. 21, 1989; 
55 FR 862, Jan. 10, 1990; 56 FR 30871, 30873, July 8, 1991; 59 FR 66735, 
Dec. 28, 1994; 60 FR 5461, Jan. 27, 1995; 60 FR 51349, Oct. 2, 1995]



Sec. 2.41  Travel approval.

    (a) The probation officer may approve travel outside the district 
without approval of the Commission in the following situations:

[[Page 132]]

    (1) Vacation trips not to exceed thirty days.
    (2) Trips, not to exceed thirty days, to investigate reasonably 
certain employment possibilities.
    (3) Recurring travel across a district boundary, not to exceed fifty 
miles outside the district, for purpose of employment, shopping, or 
recreation.
    (b) Specific advance approval by the Commission is required for all 
foreign travel, employment requiring recurring travel more than fifty 
miles outside the district (except employment at offshore locations), 
and vacation travel outside the district exceeding thirty days. A 
request for such permission shall be in writing and must demonstrate a 
substantial need for such travel.
    (c) A special condition imposed by the Regional Commissioner 
prohibiting certain travel shall supersede any general rules relating to 
travel as set forth above.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, Jan. 16, 1979; 48 
FR 9247, Mar. 4, 1983; 57 FR 59916, Dec. 17, 1992]



Sec. 2.42  Probation officer's reports to Commission.

    A supervision report shall be submitted by the responsible probation 
officer to the Commission for each parolee after the completion of 24 
months of continuous supervision and annually thereafter. The probation 
officer shall submit such additional reports as the Commission may 
direct.

[51 FR 11017, Apr. 1, 1986]



Sec. 2.43  Early termination.

    (a)(1) Upon its own motion or upon request of the parolee, the 
Commission may terminate supervision, and thus jurisdiction, over a 
parolee prior to the expiration of his maximum sentence.
    (2) A committed youth offender sentenced to a term of more than one 
year may not be granted an early termination of jurisdiction earlier 
than after one year of continuous supervision on parole. When 
termination of jurisdiction prior to the expiration of sentence is 
granted in the case of a youth offender, his conviction shall be 
automatically set aside. A certificate setting aside his conviction 
shall be issued in lieu of a certificate of termination.
    (b) Two years after release on supervision, and at least annually 
thereafter, the Commission shall review the status of each parolee to 
determine the need for continued supervision. In calculating such two-
year period there shall not be included any period of release on parole 
prior to the most recent release, nor any period served in confinement 
on any other sentence. A review will also be conducted whenever early 
termination is recommended by the supervising probation officer.
    (c)(1) Five years after release on supervision, the Commission shall 
terminate supervision over such parolee unless it is determined, after a 
hearing conducted in accordance with the procedures prescribed in 18 
U.S.C. 4214(a)(2), that such supervision should not be terminated 
because there is a likelihood that the parolee will engage in conduct 
violating any criminal law. Such hearing may be conducted by a hearing 
examiner or other official designated by the Regional Commissioner. In 
calculating such five-year period, there shall not be included any 
period of release on parole prior to the most recent release or any 
period served in confinement on any other sentence.
    (2) If supervision is not terminated under paragraph (c)(1) of this 
section the parolee may request a hearing annually thereafter, and a 
hearing shall be conducted with respect to termination of supervision 
not less frequently than biennially.
    (3) A parolee may appeal an adverse decision under paragraphs (c)(1) 
or (c)(2) of this section pursuant to Sec. 2.26 or Sec. 2.27 as 
applicable.
    (d) The Regional Commissioner in the region of supervision shall 
have authority to make decisions under this section pursuant to the 
guidelines set forth below; except that in the case of a parolee 
classified under the provisions of Sec. 2.17, an affirmative decision to 
terminate supervision under paragraph (b) of this section, or a decision 
to terminate or continue supervision under paragraph (c) of this section 
shall be made pursuant to the provisions of Sec. 2.17.

[[Page 133]]

    (e) Early termination guidelines. In determining whether to grant 
early termination from supervision, the Commission shall apply the 
following guidelines:
    (1) Absent case-specific factors to the contrary, termination of 
supervision shall be considered indicated when:
    (i) A parolee originally classified in the very good risk category 
(pursuant to Sec. 2.20) has completed two continuous years of 
supervision free from any indication of new criminal behavior or serious 
parole violation; and
    (ii) A parolee originally classified in other than the very good 
risk category (pursuant to Sec. 2.20) has completed three continuous 
years of supervision free from any indication of new criminal behavior 
or serious parole violation.

    Note: As used in this section, an indication of new criminal 
behavior includes a new arrest if supported by substantial evidence of 
guilt, even if no conviction or parole revocation results.

    (2) Decisions to continue the parolee under supervision past the 
period indicated above may be made where case-specific factors justify a 
conclusion that continued supervision is needed to protect the public 
welfare. Such case-specific factors may relate to the current behavior 
of the parolee (for example, a parolee whose behavior begins to 
deteriorate as the normally expected time for termination approaches) or 
to the parolee's background (for example, a parolee with a history of 
repetitive assaultive conduct or substantial involvement in large scale 
or organized criminal activity). In such cases, an additional period of 
supervision prior to termination of jurisdiction may be warranted.
    (3) Decisions to terminate supervision prior to completion of the 
three year period specified in paragraph (e)(1)(ii) of this section may 
be made where it appears that the parolee is a better risk than 
indicated by the salient factor score as originally calculated. However, 
termination of supervision prior to the completion of two years of 
difficulty-free supervision will not be granted unless case-specific 
factors clearly indicate that continued supervision would be 
counterproductive.
    (4) Cases with pending criminal charge(s) shall not be terminated 
from supervision until disposition of such charge(s) is known.
    (5) After five continuous years of supervision, decisions to 
terminate will be made in accordance with subsection (c) of this rule.

[46 FR 28649, May 28, 1981, as amended at 46 FR 35639, July 10, 1981; 49 
FR 44098, Nov. 2, 1984; 50 FR 36424, Sept. 6, 1985]



Sec. 2.44  Summons to appear or warrant for retaking of parolee.

    (a) If a parolee is alleged to have violated the conditions of his 
release, and satisfactory evidence thereof is presented, the Commission 
or a member thereof may:
    (1) Issue a summons requiring the offender to appear for a 
preliminary interview or local revocation hearing.
    (2) Issue a warrant for the apprehension and return of the offender 
to custody.

A summons or warrant may be issued or withdrawn only by the Commission, 
or a member thereof.
    (b) Any summons or warrant under this section shall be issued as 
soon as practicable after the alleged violation is reported to the 
Commission, except when delay is deemed necessary. Issuance of a summons 
or warrant may be withheld until the frequency or seriousness of 
violations, in the opinion of the Commission, requires such issuance. In 
the case of any parolee charged with a criminal offense and awaiting 
disposition of the charge, issuance of a summons or warrant may be 
withheld, a warrant may be issued and held in abeyance, or a warrant may 
be issued and a detainer may be placed.
    (c) A summons or warrant may be issued only within the prisoner's 
maximum term or terms except that in the case of a prisoner released as 
if on parole pursuant to 18 U.S.C. 4164, such summons or warrant may be 
issued only within the maximum term or terms, less one-hundred eighty 
days. A summons or warrant shall be considered issued when signed and 
placed in the mail at the Commission Headquarters or appropriate 
regional office.
    (d) The issuance of a warrant under this section operates to bar the 
expiration of the parolee's sentence. Such

[[Page 134]]

warrant maintains the Commission's jurisdiction to retake the parolee 
either before or after the normal expiration date of the sentence and to 
reach a final decision as to revocation of parole and forfeiture of time 
pursuant to Sec. 2.52(c).
    (e) A summons or warrant issued pursuant to this section shall be 
accompanied by a statement of the charges against the parolee, the 
applicable procedural rights under the Commission's regulations and the 
possible actions which may be taken by the Commission. A summons shall 
specify the time and place the parolee shall appear for a revocation 
hearing. Failure to appear in response to a summons shall be grounds for 
issuance of a warrant.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 84055, Dec. 22, 1980; 54 
FR 11688, Mar. 21, 1989]



Sec. 2.45  Same; youth offenders.

    (a) In addition to the issuance of a summons or warrant pursuant to 
Sec. 2.44 of this part, the Commission or a member thereof, when of the 
opinion that a youth offender will be benefitted by further treatment in 
an institution or other facility, may direct his return to custody or 
issue a warrant for his apprehension and return to custody.
    (b) Upon his return to custody, such youth offender shall be 
scheduled for a revocation hearing.



Sec. 2.46  Execution of warrant and service of summons.

    (a) Any officer of any Federal correctional institution or any 
Federal officer authorized to serve criminal process within the United 
States, to whom a warrant is delivered shall execute such warrant by 
taking the parolee and returning him to the custody of the Attorney 
General.
    (b) On arrest of the parolee the officer executing the warrant shall 
deliver to him a copy of the Warrant Application listing the charges 
against the parolee, the applicable procedural rights under the 
Commission's regulations and the possible actions which may be taken by 
the Commission.
    (c) If execution of the warrant is delayed pending disposition of 
local charges, for further investigation, or for some other purpose, the 
parolee is to be continued under supervision by the probation officer 
until the normal expiration of the sentence, or until the warrant is 
executed, whichever first occurs. Monthly supervision reports are to be 
submitted, and the parolee must continue to abide by all the conditions 
of release.
    (d) A summons to appear at a preliminary interview or revocation 
hearing shall be served upon the parolee in person by delivering to the 
parolee a copy of the summons. Service shall be made by any Federal 
officer authorized to serve criminal process within the United States, 
and certification of such service shall be returned to the appropriate 
regional office of the Commission.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3409, Jan. 16, 1979]



Sec. 2.47  Warrant placed as a detainer and dispositional review.

    (a) When a parolee is serving a new sentence in a federal, state or 
local institution, a parole violation warrant may be placed against him 
as a detainer.
    (1) If the prisoner is serving a new sentence in a federal 
institution, a revocation hearing shall be scheduled within 120 days of 
notification of placement of the detainer, or as soon thereafter as 
practicable, provided the prisoner is eligible for and has applied for 
an initial hearing on the new sentence, or is serving a new sentence of 
one year or less. In any other case, the detainer shall be reviewed on 
the record pursuant to paragraph (a)(2) of this section.
    (2) If the prisoner is serving a new sentence in a state or local 
institution, the violation warrant shall be reviewed by the Regional 
Commissioner not later than 180 days following notification to the 
Commission of such placement. The parolee shall receive notice of the 
pending review, and shall be permitted to submit a written application 
containing information relative to the disposition of the warrant. He 
shall also be notified of his right to request counsel under the 
provisions of Sec. 2.48(b) to assist him in completing this written 
application.

[[Page 135]]

    (b) If the prisoner is serving a new federal sentence, the Regional 
Commissioner, following a dispositional record review, may:
    (1) Pursuant to the general policy of the Commission, let the 
warrant stand as a detainer and order that the revocation hearing be 
scheduled to coincide with the initial hearing on the new federal 
sentence or upon release from the new sentence, whichever comes first;
    (2) Withdraw the warrant, and either order reinstatement of the 
parolee to supervision upon release from confinement or close the case 
if the expiration date has passed.
    (c) If the prisoner is serving a new state or local sentence, the 
Regional Commissioner, following a dispositional record review may:
    (1) Withdraw the detainer and order reinstatement of the parolee to 
supervision upon release from custody, or close the case if the 
expiration date has passed.
    (2) Order a revocation hearing to be conducted by a hearing examiner 
or an official designated by the Regional Commissioner at the 
institution in which the parolee is confined.
    (3) Let the detainer stand and order further review at an 
appropriate time. If the warrant is not withdrawn and no revocation 
hearing is conducted while the prisoner is in state or local custody, an 
institutional revocation hearing shall be conducted after the prisoner's 
return to federal custody.
    (d) Revocation hearings pursuant to this section shall be conducted 
in accordance with the provisions governing institutional revocation 
hearings, except that a hearing conducted at a state or local facility 
may be conducted by a hearing examiner, hearing examiner panel, or other 
official designated by the Regional Commissioner. Following a revocation 
hearing conducted pursuant to this section, the Commission may take any 
action specified in Sec. 2.52.
    (e)(1) A parole violator whose parole is revoked shall be given 
credit for all time in federal, state, or local confinement on a new 
offense for purposes of satisfaction of the reparole guidelines at 
Sec. 2.20 and Sec. 2.21.
    (2) However, it shall be the policy of the Commission that the 
revoked parolee's original sentence (which due to the new conviction, 
stopped running upon his last release from federal confinement on 
parole) again start to run only upon release from the confinement 
portion of the new sentence or the date of reparole granted pursuant of 
these rules, whichever comes first. This subsection does not apply to 
cases where, by law, the running of the original sentence is not 
interrupted by a new conviction (e.g., YCA; NARA; Mexican or Canadian 
treaty cases).
    (f) If a Regional Commissioner determines that additional 
information is required in order to make a decision pursuant to 
paragraph (a)(2) of this section, he may schedule a dispositional 
hearing at the state or local institution where the parolee is confined 
to obtain such information. Such hearing may be conducted by a hearing 
examiner, hearing examiner panel, or other official designated by the 
Regional Commissioner. The parolee shall have notice of such hearing, be 
allowed to testify in his behalf, and have opportunity for counsel as 
provided in Sec. 2.48(b).

[52 FR 17400, May 8, 1987, as amended at 61 FR 33657, June 28, 1996]



Sec. 2.48  Revocation: Preliminary interview.

    (a) Interviewing officer. A parolee who is retaken on a warrant 
issued by a Commissioner shall be given a preliminary interview by an 
official designated by the Regional Commissioner to enable the 
Commission to determine if there is probable cause to believe that the 
parolee has violated his parole as charged, and if so, whether a 
revocation hearing should be conducted. The official designated to 
conduct the preliminary interview may be a U.S. Probation Officer in the 
district where the prisoner is confined, provided he is not the officer 
who recommended that the warrant be issued.
    (b) Notice and opportunity to postpone interview. At the beginning 
of the preliminary interview, the interviewing officer shall ascertain 
that the Warrant Application has been given to the parolee as required 
by Sec. 2.46(b), and shall advise the parolee that he may have

[[Page 136]]

the preliminary interview postponed in order to obtain representation by 
an attorney or arrange for the attendance of witnesses. The parolee 
shall also be advised that if he cannot afford to retain an attorney he 
may apply to a U.S. District Court for appointment of counsel to 
represent him at the preliminary interview and the revocation hearing 
pursuant to 18 U.S.C. 3006A. In addition, the parolee may request the 
Commission to obtain the presence of persons who have given information 
upon which revocation may be based. Such adverse witnesses shall be 
requested to attend the preliminary interview unless the parolee admits 
a violation or has been convicted of a new offense while on supervision 
or unless the interviewing officer finds good cause for their non-
attendance. Pursuant to Sec. 2.51 a subpoena may issue for the 
appearance of adverse witnesses or the production of documents.
    (c) Review of the charges. At the preliminary interview, the 
interviewing officer shall review the violation charges with the 
parolee, apprise the parolee of the evidence which has been presented to 
the Commission, receive the statements of witnesses and documentary 
evidence on behalf of the parolee, and allow cross-examination of those 
witnesses in attendance. Disclosure of the evidence presented to the 
Commission shall be made pursuant to Sec. 2.50(d).
    (d) At the conclusion of the preliminary interview, the interviewing 
officer shall inform the parolee of his recommended decision as to 
whether there is probable cause to believe that the parolee has violated 
the conditions of his release, and shall submit to the Commission a 
digest of the interview together with his recommended decision.
    (1) If the interviewing officer's recommended decision is that no 
probable cause may be found to believe that the parolee has violated the 
conditions of his release, the responsible Regional Commissioner shall 
review such recommended decision and notify the parolee of his final 
decision concerning probable cause as expeditiously as possible 
following receipt of the interviewing officer's digest. A decision to 
release the parolee shall be implemented without delay.
    (2) If the interviewing officer's recommended decision is that 
probable cause may be found to believe that the parolee has violated a 
condition (or conditions) of his release, the responsible Regional 
Commissioner shall notify the parolee of his final decision concerning 
probable cause within 21 days of the date of the preliminary interview.
    (3) Notice to the parolee of any final decision of a Regional 
Commissioner finding probable cause and ordering a revocation hearing 
shall state the charges upon which probable cause has been found and the 
evidence relied upon.
    (e) Release notwithstanding probable cause. If the Commission finds 
probable cause to believe that the parolee has violated the conditions 
of his release, reinstatement to supervision or release pending further 
proceeding may nonetheless be ordered if it is determined that:
    (1) Continuation of revocation proceedings is not warranted despite 
the violations found; or
    (2) Incarceration pending further revocation proceedings is not 
warranted by the alleged frequency or seriousness of such violation or 
violations, and that the parolee is not likely to fail to appear for 
further proceedings, and that the parolee does not constitute a danger 
to himself or others.
    (f) Conviction as probable cause. Conviction of a Federal, State, or 
local crime committed subsequent to release by a parolee shall 
constitute probable cause for the purposes of this section and no 
preliminary interview shall be conducted unless otherwise ordered by the 
Regional Commissioner.
    (g) Local revocation hearing. A postponed preliminary interview may 
be conducted as a local revocation hearing by an examiner panel or other 
interviewing officer designated by the Regional Commissioner provided 
that the parolee has been advised that the postponed preliminary 
interview will constitute his final revocation hearing.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3409, Jan. 16, 
1979; 46 FR 42842, Aug. 25, 1981; 47 FR 25735, June 15, 1982]

[[Page 137]]



Sec. 2.49  Place of revocation hearing.

    (a) If the parolee requests a local revocation hearing, he shall be 
given a revocation hearing reasonably near the place of the alleged 
violation(s) or arrest, if the following conditions are met:
    (1) The parolee has not been convicted of a crime committed while 
under supervision; and
    (2) The parolee denies that he has violated any condition of his 
release.
    (b) If there are two or more alleged violations, the hearing may be 
conducted near the place of the violation chiefly relied upon as a basis 
for the issuance of the warrant or summons as determined by the Regional 
Commissioner.
    (c) A parolee who voluntarily waives his right to a local revocation 
hearing, or who admits any violation of the conditions of his release, 
or who is retaken following conviction of a new crime, shall be given a 
revocation hearing upon his return to a Federal institution. However, 
the Regional Commissioner may, on his own motion, designate a case for a 
local revocation hearing.
    (d) A parolee retaken on a warrant issued by the Commission shall be 
retained in custody until final action relative to revocation of his 
release, unless otherwise ordered by the Regional Commissioner under 
Sec. 2.48(e)(2). A parolee who has been given a revocation hearing 
pursuant to the issuance of a summons under Sec. 2.44 shall remain on 
supervision pending the decision of the Commission.
    (e) A local revocation hearing shall be scheduled to be held within 
sixty days of the probable cause determination. Institutional revocation 
hearings shall be scheduled to be held within ninety days of the date of 
the execution of the violator warrant upon which the parolee was 
retaken. However, if a parolee requests and receives any postponement or 
consents to a postponed revocation proceeding, or if a parolee by his 
actions otherwise precludes the prompt conduct of such proceedings, the 
above-stated time limits may be extended. A local revocation hearing may 
be conducted by a hearing examiner, hearing examiner panel, or other 
official designated by the Regional Commissioner.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3409, Jan. 16, 
1979]



Sec. 2.50  Revocation hearing procedure.

    (a) The purpose of the revocation hearing shall be to determine 
whether the parolee has violated the conditions of his release and, if 
so, whether his parole or mandatory release should be revoked or 
reinstated.
    (b) The alleged violator may present witnesses, and documentary 
evidence in his behalf. However, the presiding hearing officer or 
examiner panel may limit or exclude any irrelevant or repetitious 
statement or documentary evidence.
    (c) At a local revocation hearing, the Commission may on the request 
of the alleged violator or on its own motion, request the attendance of 
persons who have given statements upon which revocation may be based. 
Those witnesses who are present shall be made available for questioning 
and cross-examination in the presence of the alleged violator unless the 
presiding hearing officer or examiner panel finds good cause for their 
non-attendance. Adverse witnesses will not be requested to appear at 
institutional revocation hearings.
    (d) All evidence upon which the finding of violation may be based 
shall be disclosed to the alleged violator at or before the revocation 
hearing. The hearing officer or examiner panel may disclose documentary 
evidence by permitting the alleged violator to examine the document 
during the hearing, or where appropriate, by reading or summarizing the 
document in the presence of the alleged violator.
    (e) In lieu of an attorney, an alleged violator may be represented 
at a revocation hearing by a person of his choice. However, the role of 
such non-attorney representative shall be limited to offering a 
statement on the alleged violator's behalf with regard to reparole or 
reinstatement to supervision.

[[Page 138]]

    (f) A revocation decision may be appealed under the provisions of 
Sec. 2.26 or Sec. 2.27 as applicable.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, Jan. 16, 1979; 51 
FR 32785, Sept. 16, 1986; 52 FR 33409, Sept. 3, 1987]



Sec. 2.51  Issuance of a subpoena for the appearance of witnesses or production of documents.

    (a)(1) Preliminary interview or local revocation hearing: If any 
person who has given information upon which revocation may be based 
refuses, upon request by the Commission to appear, the Regional 
Commissioner may issue a subpoena for the appearance of such witness. 
Such subpoena may also be issued at the discretion of the Regional 
Commissioner in the event such adverse witness is judged unlikely to 
appear as requested.
    (2) In addition, the Regional Commissioner may, upon his own motion 
or upon a showing by the parolee that a witness whose testimony is 
necessary to the proper disposition of his case will not appear 
voluntarily at a local revocation hearing or provide an adequate written 
statement of his testimony, issue a subpoena for the appearance of such 
witness at the revocation hearing.
    (3) Both such subpoenas may also be issued at the discretion of the 
Regional Commissioner if it is deemed necessary for orderly processing 
of the case.
    (b) A subpoena issued pursuant to paragraph (a) of this section 
above may require the production of documents as well as, or in lieu of, 
a personal appearance. The subpoena shall specify the time and the place 
at which the person named therein is commanded to appear, and shall 
specify any documents required to be produced.
    (c) A subpoena may be served by any Federal officer authorized to 
serve criminal process. The subpoena may be served at any place within 
the judicial district in which the place specified in the subpoena is 
located, or any place where the witness may be found. Service of a 
subpoena upon a person named therein shall be made by delivering a copy 
thereof to such person.
    (d) If a person refuses to obey such subpoena, the Commission may 
petition a court of the United States for the judicial district in which 
the parole proceeding is being conducted, or in which such person may be 
found, to require such person to appear, testify, or produce evidence. 
The court may issue an order requiring such person to appear before the 
Commission, and failure to obey such an order is punishable by contempt.



Sec. 2.52  Revocation decisions.

    (a) Whenever a parolee is summoned or retaken by the Commission, and 
the Commission finds by a preponderance of the evidence, that the 
parolee has violated a condition of the parole, the Commission may take 
any of the following actions:
    (1) Restore the parolee to supervision including where appropriate:
    (i) Reprimand;
    (ii) Modification of the parolee's conditions of release;
    (iii) Referral to a residential community treatment center for all 
or part of the remainder of his original sentence; or
    (2) Revoke parole.
    (b) If parole is revoked pursuant to this section, the Commission 
shall also determine, on the basis of the revocation hearing, whether 
reparole is warranted or whether the prisoner should be continued for 
further review.
    (c) A parolee whose release is revoked by the Commission will 
receive credit on service of his sentence for time spent under 
supervision, except as provided below:
    (1) If the Commission finds that such parolee intentionally refused 
or failed to respond to any reasonable request, order, summons or 
warrant of the Commission or any agent thereof, the Commission may order 
the forfeiture of the time during which the parolee so refused or failed 
to respond, and such time shall not be credited to service of the 
sentence.
    (2) It is the Commission's interpretation of 18 U.S.C. 4210(b)(2) 
that, if a parolee has been convicted of a new offense committed 
subsequent to his release on parole, which is punishable by any term of 
imprisonment, detention, or incarceration in any penal facility, 
forfeiture of time from the date of such release to the date of 
execution of the

[[Page 139]]

warrant is an automatic statutory penalty, and such time shall not be 
credited to the service of the sentence. An actual term of confinement 
or imprisonment need not have been imposed for such conviction; it 
suffices that the statute under which the parolee was convicted permits 
the trial court to impose any term of confinement or imprisonment in any 
penal facility. If such conviction occurs subsequent to a revocation 
hearing the Commission may reopen the case and schedule a further 
hearing relative to time forfeiture and such further disposition as may 
be appropriate. However, in no event shall the violator term imposed 
under this subsection, taken together with the time served before 
release, exceed the total length of the original sentence.
    (d)(1) Notwithstanding the above, prisoners committed under the 
Narcotic Addict Rehabilitation Act or the Youth Corrections Act shall 
not be subject to any forfeiture provision, but shall serve 
uninterrupted sentences from the date of conviction, except as provided 
in Sec. 2.10 (b) and (c).
    (2) The commitment of a juvenile offender under the Federal Juvenile 
Delinquency Act may not be extended past the offender's twenty-first 
birthday unless the juvenile has attained his nineteenth birthday at the 
time of his commitment, in which case his commitment shall not exceed 
the lesser of two years or the maximum term which could have been 
imposed on an adult convicted of the same offense.
    (e) In determining whether to revoke parole for non-compliance with 
a condition of fine, restitution, court costs or assessment, and/or 
court ordered child support or alimony payment, the Parole Commission 
shall consider the parolee's employment status, earning ability, 
financial resources, and any other special circumstances that may have a 
bearing on the matter. Revocation shall not be ordered unless the 
parolee is found to be deliberately evading or refusing compliance.

           Appendix to Sec. 2.52--General Statement of Policy

    In the case of any revocation hearing conducted within the Ninth 
Circuit, the Commission will exercise discretion in determining whether 
or not to order forfeiture of all or part of the time spent on parole 
pursuant to 18 U.S.C. 4210(b)(2). The Commission's policy shall be to 
consider granting credit for time on parole in the case of a parole 
violator originally classified in the very good risk category (pursuant 
to 28 CFR 2.20) if the following condtions are met. The conviction must 
not be for a felony offense. The parole violation behavior (the offense 
of conviction plus any other violations) must be non-violent, and not 
involve a repeat of the parole violator's original offense behavior. 
Further, an adequate period of reimprisonment pursuant to the reparole 
guidelines at 28 CFR 2.21, and an adequate period of renewed supervision 
following release from reimprisonment or reinstatement to supervision, 
must be available without forfeiting street time. In the case of a 
parole violator originally classified in other than the ``very good 
risk'' category, it shall be the Commission's policy to order the 
forfeiture of all time spent on parole absent extraordinary 
circumstances. In no instance will the Commission grant credit in the 
case of a repeat violator on the current sentence.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3410, Jan. 16, 
1979; 50 FR 36422, Sept. 6, 1985; 53 FR 47187, Nov. 22, 1988; 55 FR 
42185, Oct. 18, 1990]



Sec. 2.53  Mandatory parole.

    (a) A prisoner (including a prisoner sentenced under the Narcotic 
Addict Rehabilitation Act, Federal Juvenile Delinquency Act, or the 
provisions of 5010(c) of the Youth Corrections Act) serving a term or 
terms of 5 years or longer shall be released on parole after completion 
of two-thirds of each consecutive term or terms or after completion of 
30 years of each term or terms of more than 45 years (including life 
terms), whichever comes earlier, unless pursuant to a hearing under this 
section, the Commission determines that there is a reasonable 
probability that the prisoner will commit any Federal, State, or local 
crime or that the prisoner has frequently or seriously violated the 
rules of the institution in which he is confined. If parole is denied 
pursuant to this section, such prisoner shall serve until the expiration 
of his sentence less good time.
    (b) When feasible, at least 60 days prior to the scheduled two-
thirds date, a review of the record shall be conducted by an examiner 
panel. If a mandatory parole is ordered following this review, no 
hearing shall be conducted.

[[Page 140]]

    (c) A prisoner released on mandatory parole pursuant to this section 
shall remain under supervision until the expiration of the full term of 
his sentence unless the Commission terminates parole supervision 
pursuant to Sec. 2.43 prior to the full term date of the sentence.
    (d) A prisoner whose parole has been revoked and whose parole 
violator term is 5 years or more shall be eligible for mandatory parole 
under the provisions of this section upon completion of two-thirds of 
the violator term and shall be considered for mandatory parole under the 
same terms as any other eligible prisoner.

[43 FR 38822, Aug. 31, 1978]



Sec. 2.54  Reviews pursuant to 18 U.S.C. 4215(c).

    The Attorney General, within thirty days after entry of a Regional 
Commissioner's decision, may request in writing that the National 
Appeals Board review such decision. Within sixty days of the receipt of 
the request the National Appeals Board shall, upon the concurrence of 
two members, affirm, modify, or reverse the decision, or order a 
rehearing at the institutional or regional level. The Attorney General 
and the prisoner affected shall be informed in writing of the decision, 
and the reasons therefor.

[42 FR 39821, Aug. 5, 1977, as amended at 43 FR 17470, Apr. 25, 1978; 44 
FR 3408, Jan. 16, 1979]



Sec. 2.55  Disclosure of file prior to parole hearing.

    (a) Processing disclosure requests. At least 60 days prior to a 
hearing scheduled pursuant to 28 CFR 2.12 or 2.14 each prisoner shall be 
given notice of his right to request disclosure of the reports and other 
documents to be used by the Commission in making its determination.
    (1) The Commission's file consists mainly of documents provided by 
the Bureau of Prisons. Therefore, disclosure of documents used by the 
Commission can normally be accomplished by disclosure of documents in a 
prisoner's institutional file. Requests for disclosure of a prisoner's 
institutional file will be handled under the Bureau of Prison's 
disclosure regulations. The Bureau of Prisons has 15 days from date of 
receipt of a disclosure request to respond to that request.
    (2) A prisoner may also request disclosure of documents used by the 
Commission which are contained in the Commission's regional office file 
but not in the prisoner's institutional file.
    (3) Upon the prisoner's request, a representative shall be given 
access to the presentence investigation report reasonably in advance of 
the initial hearing, interim hearing, and a 15-year reconsideration 
hearing, pursuant and subject to the regulations of the U.S. Bureau of 
Prisons. Disclosure shall not be permitted with respect to confidential 
material withheld by the sentencing court under Rule 32(c)(3)(A), 
F.R.Crim.P.
    (b) Scope of disclosure. The scope of disclosure under this section 
is limited to reports and other documents to be used by the Commission 
in making its determination. At statutory interim hearings conducted 
pursuant to 28 CFR 2.14 the Commission only considers information 
concerning significant developments or changes in the prisoner's status 
since the initial hearing or a prior interim hearing. Therefore, 
prehearing disclosure for interm hearings will be limited to such 
information.
    (c) Exemption to disclosure (18 U.S.C. 4208(c)). A document may be 
withheld from disclosure to the extent it contains:
    (1) Diagnostic opinions which, if known to the prisoner, could lead 
to a serious disruption of his institutional program;
    (2) Material which would reveal a source of information obtained 
upon a promise of confidentiality; or
    (3) Any other information which, if disclosed, might result in harm, 
physical or otherwise to any person.
    (d) Summarizing nondisclosable documents. If any document or portion 
of a document is found by the Commission, the Bureau of Prisons or the 
originating agency to fall within an exemption to disclosure, the agency 
shall:
    (1) Identify the material to be withheld; and
    (2) State the exemption to disclosure under paragraph (c) of this 
section; and
    (3) Provide the prisoner with a summary of the basic content of the 
material withheld with as much specificity

[[Page 141]]

as possible without revealing the nondisclosable information.
    (e) Waiver of disclosure. When a timely request has been made for 
disclosure, if any document or summary of a document relevant to the 
parole determination has not been disclosed 30 days prior to the 
hearing, the prisoner shall be offered the opportunity to waive 
disclosure of such document without prejudice to his right to later 
review the document or a summary of the document. The examiner panel may 
disclose the document and proceed with the hearing so long as the 
prisoner waives his right to advance disclosure. If the prisoner chooses 
not to waive prehearing disclosure, the examiner panel shall continue 
the hearing to the next docket to permit disclosure. A continuance for 
disclosure should not be extended beyond the next hearing docket.
    (f) Late received documents. If a document containing new and 
significant adverse information is received after a parole hearing but 
before all review and appellate procedures have been concluded, the 
prisoner shall be given a rehearing on the next docket. A copy of the 
document shall be forwarded to the institution for inclusion in the 
prisoner's institutional file. The Commission shall notify the prisoner 
of the new hearing and his right to request disclosure of the document 
pursuant to this section. If a late received document provides favorable 
information, merely restates already available information or provides 
insignificant information, the case will not be reopened for disclosure.
    (g) Reopened cases. Whenever a case is reopened for a new hearing 
and there is a document the Commission intends to use in making its 
determination, a copy of the document shall be forwarded for inclusion 
in the prisoner's institutional file and the prisoner shall be informed 
of his right to request disclosure of the document pursuant to this 
section.

[50 FR 40374, Oct. 3, 1985]



Sec. 2.56  Disclosure of Parole Commission regional office file.

    (a) Procedure. Copies of disclosable records pertaining to a 
prisoner or a parolee which are contained in the prisoner's regional 
office file may be obtained by that prisoner or parolee upon written 
request pursuant to this section. Such requests shall be answered as 
soon as possible in the order of their receipt. Other persons may obtain 
copies of such documents only upon proof of authorization from the 
prisoner or parolee concerned or to the extent permissable under the 
Freedom of Information Act or the Privacy Act of 1974.
    (b) Scope of disclosure. Disclosure under this section shall extend 
to Commission documents concerning the prisoner or parolee making the 
request. Documents which are contained in the regional file and which 
are prepared by agencies other than the Commission which are also 
subject to the provisions of the Freedom of Information Act, shall be 
referred to the appropriate agency for a response pursuant to its 
regulations, unless the document has previously been prepared for 
disclosure pursuant to Sec. 2.55, or is fully disclosable on its face, 
or has been prepared by the Bureau of Prisons. Any Bureau of Prisons 
documents in a parole file are duplicates of records in the inmate's 
institutional file. Before referring these documents to the Bureau of 
Prisons (BOP), the Commission will ask the requestor whether he also 
wants the BOP documents in his parole file processed.
    (c) Exemptions to disclosure. A document or segregable portion 
thereof may be withheld from disclosure to the extent it contains 
material exempt from disclosure under the Freedom of Information Act. 5 
U.S.C. 552(b)(1)-(9).
    (d) Specification of documents withheld. Documents that are withheld 
pursuant to paragraph (c) of this section shall be identified for the 
requester together with the applicable exemption for withholding each 
document or portion thereof. In addition, the requester must be informed 
of the right to appeal any non-disclosure to the Office of the Chairman.
    (e) Hearing record. Upon request by the prisoner or parolee 
concerned, the Commission shall make available a copy of any verbatim 
record (e.g., tape recording) which it has retained of a hearing, 
pursuant to 18 U.S.C. 4208(f).
    (f) Costs. In any case in which billable costs exceed $8.00 (based 
upon the provisions and fee schedules as set forth in

[[Page 142]]

the Department of Justice regulation 28 CFR 16.10), requesters will be 
notified that they will be required to reimburse the United States for 
such costs before copies are released.
    (g) Relation to other provisions. Disclosure under this section is 
authorized by 28 CFR 16.85 under which the Parole Commission is exempt 
from the record disclosure provisions of the Privacy Act of 1974, as 
well as certain other provisions of the Act pursuant to 5 U.S.C. 
552a(j)(2). Requests submitted under the Freedom of Information Act or 
the Privacy Act for the requester's own records will be processed under 
this section. In no event will the Commission consider satisfaction of a 
request under this section, the Freedom of Information Act, or the 
Privacy Act of 1974, to be a prerequisite to an adequate parole hearing 
under 18 U.S.C. 4208 (for which disclosure is exclusively governed by 
Sec. 2.55 of this part) or to the exercise of a parole applicant's 
appeal rights under 18 U.S.C. 4215.
    (h) Appeals--(1) Appeals to the Chairman. When a request for access 
to Parole Commission records or a waiver of fees has been denied in 
whole or in part, or when the Commission fails to respond to a request 
within the time limits set forth in the FOIA, the requester may appeal 
the denial of the request to the Chairman of the Commission within 
thirty days from the date of the notice denying the request. An appeal 
to the Chairman shall be made in writing and addressed to the Office of 
the Chairman, U.S. Parole Commission, 5550 Friendship Boulevard, Suite 
420, Chevy Chase, Maryland 20815.
    (2) Decision on appeal. A decision affirming in whole or in part the 
denial of a request shall include a brief statement of the reason or 
reasons for the affirmance, including each FOIA exemption relied upon 
and its relation to each record withheld, and a statement that judicial 
review of the denial is available in the U.S. district court for the 
judicial district in which the requester resides or has his principal 
place of business, the judicial district in which the requested records 
are located, or in the District of Columbia. If the denial of a request 
is reversed on appeal to the Chairman, the requester shall be so 
notified and the request shall be processed promptly by Commission staff 
in accordance with the Chairman's decision on appeal.

[50 FR 40375, Oct. 3, 1985, as amended at 52 FR 47921, Dec. 17, 1987; 53 
FR 24933, July 1, 1988; 53 FR 47187, Nov. 22, 1988; 54 FR 27839, June 
30, 1989; 58 FR 51780, Oct. 5, 1993]



Sec. 2.57  Special parole terms.

    (a) The Drug Abuse Prevention and Control Act, 21 U.S.C. sections 
801 to 966, provides that, on conviction of certain offenses, mandatory 
``special parole terms'' must be imposed by the court as part of the 
sentence. This term is an additional period of supervision which 
commences upon completion of any period on parole or mandatory release 
supervision from the regular sentence; or if the prisoner is released 
without supervision, commences upon such release.
    (b) At the time of release under the regular sentence, whether under 
full term expiration or under a mandatory release certificate or a 
parole certificate, a separate Special Parole Term certificate will be 
issued to the prisoner by the Bureau of Prisons.
    (c) Should a parolee be found to have violated conditions of release 
during supervision under his regular sentence, i.e., before commencement 
of the Special Parole Term, he may be returned as a violator under his 
regular sentence; the Special Parole Term will follow unaffected, as in 
paragraph (a) of this section. Should a parolee violate conditions of 
release during the Special Parole Term he will be subject to revocation 
on the Special Parole Term as provided in Sec. 2.52, and subject to 
reparole or mandatory release under the Special Parole Term. 
Notwithstanding the provisions of Sec. 2.52(c), a special parole term 
violator whose parole is revoked shall receive no credit for time spent 
on parole pursuant to 21 U.S.C. 841(c).
    (d) If a prisoner is reparoled under the revoked Special Parole Term 
a certificate of parole to Special Parole Term is issued by the 
Commission. If the prisoner is mandatorily released under the revoked 
``special parole term'' a certificate of mandatory release to Special 
Parole Term will be issued by the Bureau of Prisons.

[[Page 143]]

    (e) If regular parole or mandatory release supervision is terminated 
under Sec. 2.43, the Special Parole Term commences to run at that point 
in time. Early termination from supervision from a Special Parole Term 
may occur as in the case of a regular parole term, except that the time 
periods considered shall commence from the beginning of the Special 
Parole Term.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3410, Jan. 16, 1979. 
Redesignated at 44 FR 26551, May 4, 1979, as amended at 54 FR 11689, 
Mar. 21, 1989]



Sec. 2.58  Prior orders.

    Any order of the United States Board of Parole entered prior to May 
14, 1976, including, but not limited to, orders granting, denying, 
rescinding or revoking parole or mandatory release, shall be a valid 
order of the United States Parole Commission according to the terms 
stated in the order.

[42 FR 39809, Aug. 5, 1977. Redesignated at 44 FR 26551, May 4, 1979]



Sec. 2.59  Designation of a Commissioner to act as a hearing examiner.

    The Chairman may designate a Commissioner, with the Commissioner's 
consent, to serve as a hearing examiner on specified hearing dockets. 
The Commissioner who serves as a hearing examiner may not vote in the 
same proceeding as a Commissioner.

[60 FR 40094, Aug. 7, 1995]



Sec. 2.60  Superior program achievement.

    (a) Prisoners who demonstrate superior program achievement (in 
addition to a good conduct record) may be considered for a limited 
advancement of the presumptive date previously set according to the 
schedule below. Such reduction will normally be considered at an interim 
hearing or pre-release review. It is to be stressed that a clear conduct 
record is expected; this reduction applies only to cases with documented 
sustained superior program achievement over a period of 9 months or more 
in custody.
    (b) Superior program achievement may be demonstrated in areas such 
as educational, vocational, industry, or counselling programs, and is to 
be considered in light of the specifics of each case. A report from the 
Bureau of Prisons based upon successful completion of a residential 
substance abuse program of at least 500 hours will be given prompt 
review by the Commission for a possible advancement under this section.
    (c) Upon a finding of superior program achievement, a previously set 
presumptive date may be advanced. The normal maximum advancement 
permissible for superior program achievement during the prisoner's 
entire term shall be as set forth in the following schedule. It is the 
intent of the Commission that this maximum be exceeded only in the most 
clearly exceptional cases.
    (d) Partial advancements may be given (for example, a case with 
superior program achievement during only part of the term or a case with 
both superior program achievement and minor disciplinary infraction(s)). 
Advancements may be given at different times; however, the limits set 
forth in the following schedule shall apply to the total combined 
advancement.
    (e) Schedule of Permissible Reductions for Superior Program 
Achievement.

------------------------------------------------------------------------
     Total months required by original                                  
             presumptive date                   Permissible reduction   
------------------------------------------------------------------------
14 months or less.........................  Not applicable.             
15 to 22 months...........................  Up to 1 month.              
23 to 30 months...........................  Up to 2 months.             
31 to 36 months...........................  Up to 3 months.             
37 to 42 months...........................  Up to 4 months.             
43 to 48 months...........................  Up to 5 months.             
49 to 54 months...........................  Up to 6 months.             
55 to 60 months...........................  Up to 7 months.             
61 to 66 months...........................  Up to 8 months.             
67 to 72 months...........................  Up to 9 months.             
73 to 78 months...........................  Up to 10 months.            
79 to 84 months...........................  Up to 11 months.            
85 to 90 months...........................  Up to 12 months.            
91 plus months............................  Up to 13 months.\1\         
------------------------------------------------------------------------
\1\Plus up to 1 additional month for each 6 months or fraction thereof, 
  by which the original date exceeds 96 months.                         

    (f) For cases originally continued to expiration, the statutory good 
time date (calculated under 18 U.S.C. 4161) will be used for computing 
the maximum reduction permissible and as the base from which the 
reduction is to be subtracted for prisoners serving sentences of less 
than five years. For prisoners serving sentences of five or more, the 
two-thirds date (calculated pursuant to 18 U.S.C. 4206(d)) will be used 
for

[[Page 144]]

these purposes. If the prisoner's presumptive release date has been 
further reduced by extra good time (18 U.S.C. 4162) and such reduction 
equals or exceeds the reduction applicable for superior program 
achievement, the Commission will not give an additional reduction for 
superior program achievement.

[44 FR 55004, Sept. 24, 1979; 44 FR 59527, Oct. 16, 1979, as amended at 
49 FR 26580, June 28, 1984; 61 FR 4351, Feb. 6, 1996]



Sec. 2.61  Qualifications of representatives.

    (a) A prisoner or parolee may select any person to appear as his or 
her representative in any proceeding, and any representative will be 
deemed qualified unless specifically disqualified under paragraph (b) or 
(c) of this section. However, an examiner or examiner panel may bar an 
otherwise qualified representative from participating in a particular 
hearing, provided good cause for such action is found and stated in the 
record (e.g., willfully disruptive conduct during the hearing by 
repeated interruption or use of abusive language). In certain 
situations, good cause may be found in advance of the hearing (e.g., 
that the proposed representative is a prisoner in disciplinary 
segregation whose presence at the hearing would pose a risk to security, 
or has a personal interest in the case which appears to conflict with 
that of the parole applicant).
    (b) The Commission may disqualify any representative from appearing 
before it for up to a five-year period if, following a hearing, the 
Commission finds that the representative has engaged in any conduct 
which demonstrates a clear lack of personal integrity or fitness to 
practice before the Commission (including, but not limited to, 
deliberate or repetitive provision of false information to the 
Commission, or solicitation of clients on the strength of purported 
personal influence with U.S. Parole Commissioners or staff).
    (c)(1) In addition to the prohibitions contained in 18 U.S.C. 207, 
no former employee of any Federal criminal justice agency (in either the 
Executive or Judicial Branch of the Government) with the exception of 
the Federal Defender Service, shall be qualified to act as a 
representative for hire in any case before the Commission for one year 
following termination of Federal employment. However, such persons may 
be employed by, or perform consulting services for, a private firm or 
other organization providing representation before the agency, to the 
extent that such employment or service does not include the performance 
of any representational act before the Commission.
    (2) No prisoner or parolee may serve as a representative before the 
Commission, at the hire of individual clients, in any case.

[48 FR 14377, Apr. 4, 1983, as amended at 48 FR 44528, Sept. 29, 1983]



Sec. 2.62  Prisoners transferred pursuant to treaty.

    (a) Applicability, jurisdiction and statutory interpretation. (1) 
Prisoners transferred pursuant to treaty (transferees) who committed 
their offenses on or after November 1, 1987, shall receive a special 
transferee hearing pursuant to the procedures found in this section and 
18 U.S.C. 4106A. Transferees who committed their offenses prior to 
November 1, 1987, are immediately eligible for parole and shall receive 
a parole hearing pursuant to procedures found at 28 CFR 2.13. The Parole 
Commission shall treat the foreign conviction as though it were a lawful 
conviction in a United States District Court.
    (2) The jurisdiction of the Commission to set a release date and 
periods and conditions of supervised release extends until the 
transferee is released from prison or the transferee's case is otherwise 
transferred to a district court pursuant to an order of the Commission.
    (3) It is the Commission's interpretation of 18 U.S.C. 4106A that 
every transferee is entitled to a release date determination by the 
Commission after considering the applicable sentencing guidelines in 
effect at the time of the hearing. Upon release from imprisonment the 
transferee may be required to serve a period of supervised release 
pursuant to section 5D1.2 of the sentencing guidelines. The combination 
of the period of imprisonment that results from the release date set by 
the

[[Page 145]]

Commission and the period of supervised release shall not exceed the 
full term of the sentence imposed by the foreign court. The combined 
periods of imprisonment and supervised release may be less than the full 
term of the sentence imposed by the foreign court unless the applicable 
treaty is found to require otherwise.
    (4) The applicable offense guideline provision is determined by 
selecting the offense in the U.S. Code that is most similar to the 
offense for which the transferee was convicted in the foreign court. In 
so doing, the Commission considers itself required by law and treaty to 
respect the offense definitions contained in the foreign criminal code 
under which the prisoner was convicted, as well as the official 
documents supplied by the foreign court.
    (5) The release date that is determined by the Commission under 18 
U.S.C. 4106A(b)(1)(A) is a prison release determination and does not 
represent the imposition of a new sentence for the transferee. However, 
the release date shall be treated by the Bureau of Prisons as if it were 
the full term date of a sentence for the purpose of establishing a 
release date pursuant to 18 U.S.C. 4105(c)(1). The Bureau of Prisons 
release date shall supersede the release date established by the Parole 
Commission under 18 U.S.C. 4106A and shall be the date upon which the 
transferee's period of supervised release commences. If the Commission 
has ordered ``continue to expiration,'' the 4106A release date is the 
same as the full term date of the foreign sentence. It is the 
Commission's interpretation of 18 U.S.C. 4105(c)(1) that the deduction 
of service credits in either case does not operate to reduce the foreign 
sentence or otherwise limit the Parole Commission's authority to 
establish a period of supervised release extending from the date of 
actual release from prison to the full term date of the foreign 
sentence.
    (6) If the Commission sets a release date under 18 U.S.C. 
4106A(b)(1)(A) that is earlier than the mandatory release date 
established by the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then 
the release date set by the Commission controls. If the release date set 
by the Commission under 18 U.S.C. 4106A(b)(1)(A) is equal to or later 
than the mandatory release date established by the Bureau of Prisons 
under 18 U.S.C. 4105(c)(1), then the mandatory release date established 
by the Bureau of Prisons controls.
    (7) It is the Commission's interpretation of 18 U.S.C. 4106A that 
U.S. Code provisions for mandatory minimum terms of imprisonment and 
supervised release, as well as sentencing guideline provisions 
implementing such U.S. Code requirements (e.g., section 5G1.1(b) of the 
sentencing guidelines), were not intended by Congress to be applicable 
in an 18 U.S.C. 4106A(b)(1)(A) determination. Alternatively, it is the 
Commission's position that there is good cause in every transfer treaty 
case for a departure from any statutorily required minimum sentence 
provision in the sentencing guidelines, including section 5G1.1(b) of 
the sentencing guidelines, because Congress did not enact mandatory 
sentence laws with transferees in mind. Thus, in every transfer treaty 
case, the release date will be determined through an exercise of 
Commission discretion, according to the sentencing guideline range that 
is derived from a case-specific ``similar offense'' determination, 
rather than by reference to any provision concerning mandatory minimum 
sentences of imprisonment or terms of supervised release.
    (b) Interview upon entry. Following the transferee's entry into the 
United States, the transferee shall, without unnecessary delay, be 
interviewed by a United States Probation Officer who shall inform the 
transferee of his rights under this regulation. The transferee shall be 
given the appropriate forms for appointment of counsel pursuant to 18 
U.S.C. 3006(A) at the interview if appointment of counsel is requested.
    (c) Postsentence report. A postsentence investigation report, which 
shall include an estimated sentencing classification and sentencing 
guideline range, shall be prepared by the probation office in the 
district of entry (or the transferee's home district). Disclosure of the 
postsentence report shall be made as soon as the report is completed, by 
delivery of a copy of the report to the transferee and his or her 
counsel (if any). Confidential material

[[Page 146]]

contained in the postsentence investigation report may be withheld 
pursuant to the procedures of 18 U.S.C. 4208(c). Copies of all documents 
provided by the transferring country relating to the transferee shall be 
appended to the postsentence report when disclosed to the transferee and 
when transmitted to the Commission.
    (d) Opportunity to object. The transferee (or counsel) shall have 
thirty calendar days after disclosure of the postsentence report to 
transmit any objections to the report he or she may have, in writing, to 
the Commission with a copy to the probation officer. The Commission 
shall review the objections and may request that additional information 
be submitted by the probation officer in the form of an addendum to the 
postsentence report. Any disputes of fact or disputes concerning 
application of the sentencing guidelines shall be resolved at the 
special transferee hearing.
    (e) Special transferee hearing. A special transferee hearing shall 
be conducted within 180 days from the transferee's entry into the United 
States, or as soon as is practicable following completion of the 
postsentence report along with any corrections or addendum to the report 
and appointment of counsel for an indigent transferee.
    (1) Waivers. The transferee may waive the special transferee hearing 
on a form provided for that purpose, and the Commission may either:
    (A) Set a release date that falls within 60 days of receipt of the 
waiver and establish a period and conditions of supervised release; or
    (B) Reject the waiver and schedule a hearing.
    (2) Short-term cases. In the case of a transferee who has less than 
six months from the date of his entry into the United States to his 
release date as calculated by the Bureau of Prisons under 18 U.S.C. 
4105, the Commission may, without conducting a hearing or awaiting a 
waiver, set a release date and a period and conditions of supervised 
release. In such cases, the period of supervised release shall not 
exceed the minimum necessary to satisfy the applicable sentencing 
guideline (but may extend to the full-term of the foreign sentence if 
such period is shorter than the minimum of applicable sentencing 
guideline). The transferee may petition the Commission for a more 
favorable decision within 60 days of the Commission's determination, and 
the Commission may act upon the petition regardless of whether or not 
the transferee has been released from prison.
    (f) Representation. The transferee shall have the opportunity to be 
represented by counsel (retained by the transferee or, if financially 
unable to retain counsel, counsel shall be provided pursuant to 18 
U.S.C. 3006(A)), at all stages of the proceeding set forth in this 
section. The transferee may select a non-lawyer representative as 
provided in 28 CFR 2.61.
    (g) The decisionmaking criteria. The Commission shall apply the 
guidelines promulgated by the United States Sentencing Commission, as 
though the transferee were convicted in a United States District Court 
of a statutory offense most nearly similar to the offense of which the 
transferee was convicted in the foreign court. The Commission shall take 
into account the offense definition under foreign law, the length of the 
sentence permitted by that law, and the underlying circumstances of the 
offense behavior, to establish a guideline range that fairly reflects 
the seriousness of the offense behavior committed in the foreign 
country.
    (h) Hearing procedures. Special transferee hearings shall be 
conducted by a hearing examiner. Each special transferee hearing shall 
be recorded by a certified court reporter and the proceedings shall be 
transcribed if the determination of the Commission is appealed. The 
following procedures shall apply at a special transferee proceeding, 
unless waived by the transferee:
    (1) The examiner shall inquire whether the transferee and his 
counsel have had an opportunity to read and discuss the postsentence 
investigation report and whether the transferee is prepared to go 
forward with the hearing. If not, the transferee shall be given the 
opportunity to continue the hearing.
    (2) The transferee shall have an opportunity to present documentary 
evidence and to testify on his own behalf.
    (3) Oral testimony of interested parties may be taken with prior 
advance

[[Page 147]]

permission of the Regional Commissioner.
    (4) The transferee and his counsel shall be afforded the opportunity 
to comment upon the guideline estimate contained in the postsentence 
investigation report (and the addendum, if any), and to present 
arguments and information relating to the Commission's final guideline 
determination and decision.
    (5) Disputes of material fact shall be resolved by a preponderance 
of the evidence, with written recommended findings by the examiner 
unless the examiner determines, on the record, not to take the 
controverted matter into account.
    (6) The transferee shall be notified of the examiner's recommended 
findings of fact, and the examiner's recommended determination and 
reasons therefore, at the conclusion of the hearing. The case shall 
thereafter be reviewed by the Executive Hearing Examiner pursuant to 
Sec. 2.23, and the Commission shall make its determination upon a panel 
recommendation.
    (i) Final decision. (1) The Commission shall render a decision as 
soon as practicable and without unnecessary delay. Decisions shall be 
made upon a concurrence of two votes of the National Commissioners. The 
decision shall set a release date and a period and conditions of 
supervised release. If the Commission determines that the appropriate 
release date under 18 U.S.C. 4106A is the full term date of the foreign 
sentence, the Commission will order the transferee to ``continue to 
expiration''.
    (2) Whenever the Bureau of Prisons applies service credits under 18 
U.S.C. 4105 to a release date established by the Commission, the release 
date used by the Bureau of Prisons shall be the date established by the 
Parole Commission pursuant to the sentencing guidelines and not a date 
that resulted from any adjustment made to achieve comparable punishment 
with a similarly-situated U.S. Code offender. The application of service 
credits under 18 U.S.C. 4105 shall supersede any previous release date 
set by the Commission. The Commission may, for the purpose of 
facilitating the application of service credits by the Bureau of 
Prisons, reopen any case on the record to clarify the correct release 
date to be used, and the period of supervised release to be served.
    (3) The Commission may, in its discretion, defer a decision and 
order a rehearing, provided that a statement of the reason for ordering 
a rehearing is issued to the transferee and the transferee's counsel (if 
any).
    (4) The Commission's final decision shall be supported by a 
statement of reasons explaining:
    (i) The similar offense selected as the basis for the Commission's 
decision;
    (ii) The basis for the guideline range applied; and
    (iii) The reason for making a release determination above or below 
the guideline range. If the release date is within a guideline range 
that exceeds twenty-four months, the Commission shall identify the 
reason for the release date selected.
    (j) Appeal. The transferee shall be advised of his right to appeal 
the decision of the Commission to the United States Court of Appeals 
that has jurisdiction over the district in which the transferee is 
confined.
    (k) Reopening or modification of a determination prior to transfer 
of jurisdiction. (1) A hearing and assistance of counsel will be 
provided to the transferee whenever a case is reopened under 
subparagraphs (2), (3), (4), and (5) below unless:
    (i) Waived by the transferee; or
    (ii) The action to be taken is favorable and no factual issue must 
be resolved.
    (2) The Commission may reopen and modify a determination based upon 
information which was not previously considered. Such information must, 
however, be contained in the record of the foreign sentencing court.
    (3) The Commission may reopen and modify a determination of the 
terms and conditions of supervised release. Modifications may include 
approval or disapproval of the transferee's release plan.
    (4) The Commission shall reopen and modify a determination that has 
been found on appeal to have been imposed in violation of the law, to 
have been

[[Page 148]]

imposed as a result of an incorrect application of the sentencing 
guidelines, or to have been unreasonable.
    (5) The Commission may reopen and modify a determination upon 
consideration of the factors listed in section 5K1.1 of the sentencing 
guidelines if the transferee provides substantial assistance to law 
enforcement authorities, and that assistance was not previously 
considered by the Commission. The Commission will treat a request from a 
foreign or a domestic law enforcement authority as the equivalent of a 
``motion of the government.''
    (6) The Commission may modify a determination based upon a clerical 
mistake or other error in accordance with Federal Rules of Criminal 
Procedure Rule 36.
    (7) The Commission may reopen and modify the release date if it 
determines that a circumstance set forth in 18 U.S.C. 3582(c) is 
satisfied.
    (l) Supervised release. (1) If a period of supervised release is 
imposed, the Commission presumes that the recommended conditions of 
supervised release in section 5B1.4(a) of the sentencing guidelines, a 
condition requiring the transferee to report to the probation office 
within 72 hours of release from the custody of the Bureau of Prisons, a 
condition that the transferee not commit another Federal, state or local 
crime, and a condition that the transferee not possess a firearm or 
other dangerous weapon are reasonably necessary in every case. These 
conditions, therefore, shall be imposed unless the Commission finds 
otherwise. The Commission may also impose special conditions of 
supervised release whenever deemed reasonably necessary in an individual 
case.
    (2) If the transferee is released pursuant to a date established by 
the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then the period of 
supervised release commences upon the transferee's release from 
imprisonment.

[54 FR 27840, June 30, 1989, as amended at 55 FR 39269, Sep. 26, 1990; 
58 FR 30705, May 27, 1993; 59 FR 26425, May 20, 1994; 60 FR 18354, Apr. 
11, 1995; 61 FR 38570, July 25, 1996; 61 FR 54096, 54097, Oct. 17, 1996; 
62 FR 40270, July 28, 1997]



Sec. 2.63  Rewarding assistance in the prosecution of other offenders; criteria and guidelines.

    (a) The Commission may consider as a factor in the parole release 
decision-making a prisoner's assistance to law enforcement authorities 
in the prosecution of other offenders.
    (1) The assistance must have been an important factor in the 
investigation and/or prosecution of an offender other than the prisoner. 
Other significant assistance (e.g., providing information critical to 
prison security) may also be considered.
    (2) The assistance must be reported to the Commission in sufficient 
detail to permit a full evaluation. However, no promises, express or 
implied, as to a Parole Commission reward shall be given any weight in 
evaluating a recommendation for leniency.
    (3) The release of the prisoner must not threaten the public safety.
    (4) The assistance must not have been adequately rewarded by other 
official action.
    (b) If the assistance meets the above criteria, the Commission may 
consider providing a reduction of up to one year from the presumptive 
parole date that the Commission would have deemed warranted had such 
assistance not occurred. If the prisoner would have been continued to 
the expiration of sentence, any reduction will be taken from the actual 
date of the expiration of the sentence. Reductions exceeding the one 
year limit specified above may be considered only in exceptional 
circumstances.

[52 FR 44389, Nov. 19, 1987]



Sec. 2.64  Quorum.

    Any Commission action authorized by law may be taken on a majority 
vote of the Commissioners holding office at the time the action is 
taken.

[61 FR 55743, Oct. 29, 1996]



Sec. 2.65  Youth Corrections Act.

    (a) The provisions of this section only apply to offenders serving 
sentences imposed under former 18 U.S.C. section 5010 (b) and (c).
    (b) Approval of program plans. (1) The criteria outlined in 
paragraph (d) of this section (on determining successful

[[Page 149]]

response to treatment) shall be considered in determining whether a 
proposed program plan will effectively reduce the risk to the public 
welfare presented by the YCA prisoner's release.
    (2) If the prisoner's program plan has not already been approved by 
the Commission, the examiner panel shall be given the plan at a hearing 
for review and approval. The examiners shall indicate their approval or 
disapproval of the program plan (with relevant comments and 
recommendations) in the hearing summary.
    (3) If the examiners consider the plan inadequate, they will discuss 
their concerns with institutional staff. If there is still a 
disagreement on the plan, the case will be referred by the Commission's 
regional administrator to the Bureau's regional correctional programs 
administrator with the recommended changes. Unresolved disputes 
concerning the adequacy of the program plan shall be decided by the 
Regional Commissioner and the Regional Director of the Bureau of 
Prisons. The Regional Commissioner shall render the final decision on 
approving or disapproving each program plan on behalf of the Commission. 
Once the program plan has been approved, subsequent approvals are not 
necessary, unless significant modifications are made by institutional 
staff.
    (c) Parole hearings and progress reports. (1) Initial hearings shall 
be conducted in accordance with Secs. 2.12 and 2.13. The examiner panel 
will discuss with the prisoner and a staff member who is knowledgeable 
about the case the program plan and the importance of good conduct and 
program participation is setting the release date.
    (2) An interim hearing must be scheduled for an inmate every nine 
months if the inmate is serving a sentence of less than seven years. If 
the inmate is serving a sentence of seven years or more, the interim 
hearing must be scheduled every twelve months. If the inmate has been 
continued to the expiration of his sentence, and he has less than twelve 
months remaining to be served prior to his release or his transfer to a 
community treatment center, no further hearing is required. In addition, 
within 60 days of receipt of any special progress report from the warden 
recommending parole, the prisoner shall be scheduled for a special 
interim hearing, unless the recommendation can be timely considered at a 
regularly scheduled interim hearing. An institutional staff member who 
has personal knowledge of the case shall be present to assist the 
examiners in their evaluation of the prisoner's conduct, program 
performance, and response to treatment.
    (3) After any interim hearing or review on the record, the 
Commission may advance the presumptive release date, let the date stand, 
or retard/rescind the date if the prisoner has committed disciplinary 
infractions or new criminal conduct.
    (4) An interim hearing will not be scheduled after receipt of a 
progress report, if the Commission decides on the record to parole the 
prisoner as soon as a release plan is approved (normally within 60 days 
of the decision).
    (5) The institution shall send a progress report to the Commission:
    (i) No more than 60 days before each interim hearing;
    (ii) Upon determining that a prisoner should be recommended for 
parole; and
    (iii) Before presumptive parole date to allow for the pre-release 
record review under Sec. 2.14(b).

The warden may forward progress reports to the Commission at other times 
in his discretion. Progress reports shall also be sent to the Commission 
every six months for prisoners who have waived interim hearings to 
enable the Commission to verify that these prisoners have satisfied the 
conditions of securing their release on an alternative parole date 
granted under the former YCA compliance plan (i.e., completion of the 
program plan) or the normal presumptive release date (i.e., obedience to 
institutional rules).
    (6) For prisoners granted earlier parole dates under former 
compliance plans in Watts v. Bleaski: A prisoner may waive interim 
hearings under this section, in which case he would retain an 
alternative parole date previously granted to him or a presumptive 
parole date granted as a result of a finding that the prisoner had 
responded to treatment. A prisoner who waives an interim hearing under 
this section may, at any time, re-apply for the

[[Page 150]]

hearing and be considered under this section in accordance with the 
application/waiver provisions at Sec. 2.11. The Commission will not 
review the program plans for prisoners who waive interim hearings 
pursuant to this paragraph, unless the prisoner subsequently is 
scheduled for a hearing to consider new criminal conduct or a rule 
infraction and a modification of the original program plan appears 
warranted due to the prisoner's new criminal offense or infraction. If 
the prisoner is scheduled for a hearing that may not be waived (e.g., an 
interim hearing where there has been a finding of a disciplinary 
infraction since the last hearing, or any hearing scheduled pursuant to 
Sec. 2.20 (b) through (f), this section will be applied at such hearing.
    (7) Warden's recommendation. Based on the completion of the program 
by the prisoner, and the quality of effort demonstrated by the prisoner 
in completing the plan, the warden will recommend to the Commission a 
conditional release date for its consideration. This recommendation 
shall be accompanied by a report on the prisoner's participation and 
level of achievement in different aspects of his program.
    (d) Criteria for finding successful response to treatment programs. 
(1) In determining whether a prisoner has successfully ``responded to 
treatment'' the Commission shall examine whether the prisoner has shown 
that he has received sufficient corrective training, counseling, 
education, and therapy that the public would not be endangered by his 
release. See former 18 U.S.C. 5006(f) (definition of ``treatment'' under 
the YCA). The Bureau of Prisons shall assist the Commission in this 
determination by informing the Commission when the prisoner has 
completed his program plan and by advising the Commission of the quality 
of effort demonstrated by the prisoner in completing the plan.
    (2) In determining the extent of a prisoner's positive response to 
treatment, the Commission shall examine the degree by which the prisoner 
has increased the likelihood that his release would not jeopardize 
public welfare through his program performance and conduct record. See 
18 U.S.C. 4206(a)(2). The starting report for the analysis of a 
prisoner's response to treatment will be the original parole prognosis 
reached by the use of the salient factor score, and an evaluation of the 
nature of the prisoner's prior criminal history and other 
characteristics of the prisoner. The nature of the current offense may 
also be considered in determining the risk to the public welfare 
presented by the prisoner's release. The Commission will then proceed to 
evaluate whether the prisoner's program participation and institutional 
conduct has improved the original risk prognosis and evidences an 
alteration of his valued system, including an understanding of the 
wrongfulness of his past criminal conduct. For those prisoners who have 
exhibited serious or violent criminal behavior, the Commission will 
exercise more caution in making a finding that the prisoner has 
responded to treatment to the degree that he should be released.
    (3) With regard to program performance, significant weight will be 
given to the following factors in determining a prisoner's response to 
treatment. This is not intended as an exhaustive list.
    (i) Vocational training: Where the inmate originally had few job 
skills, the acquisition of a marketable job skill through vocational 
training or an apprenticeship program.
    (ii) Education: Participation in educational programs to acquire an 
educational level at least the level of a high school graduate.
    (iii) Psychological counseling and therapy: Where the prisoner's 
behavior has shown that he may be affected by personality disorders or a 
mental illness that has hampered his ability to lead a law-abiding life, 
or that he may otherwise benefit from such programs, participation in 
psychological and/or other specialized programs which lead to a judgment 
by the therapist/counselor that the prisoner has significantly improved 
his ability to obey the law and favorably modified his value system. 
Participation in these programs will normally be required for a 
significant advancement of the presumptive release date for a prisoner 
who has either committed or attempted a crime of violence.

[[Page 151]]

    (iv) Drug/alcohol abuse programs: Where the prisoner has a history 
of drug/alcohol abuse, participation in a drug/alcohol abuse program 
which leads to the judgment by the therapist/counselor that there is a 
significant likelihood that the prisoner will not revert to drug/alcohol 
abuse and has thereby significantly improved his ability to obey the 
law.
    (v) Work: Assuming the prisoner is physically and mentally able to 
do so and is not otherwise engaged in an institutional activity which 
prevents him from obtaining a job, participation in a job on a regular 
basis so as to demonstrate a stable life pattern and a favorable 
modification of his value system.
    (4) Prison misconduct (i.e., disobedience to institutional rules, 
escape) and new criminal conduct in the institution shall be considered 
in the decision as to whether (or to what degree) a prisoner has 
successfully responded to treatment. The rescission guidelines of 2.36 
shall be used in retarding or rescinding the original presumptive 
release date set according to the guidelines and the factors described 
in 18 U.S.C. 4206. If the original presumptive date has been advanced 
based on response to treatment, the rescission guidelines may also be 
used to retard or rescind the new date to maintain institutional 
discipline, if the misconduct is not deemed serious enough to affect the 
decision that the prisoner has responded to treatment. But misconduct 
subsequent to the advancement of a release date based on a finding of 
response to treatment may also result in a reversal of that finding and 
the cancellation of any advancement of the original presumptive release 
date.
    (e) Setting the parole date (balancing section 4206 factors with 
response to treatment). At any hearing or review on the record, the 
presumptive release date may be advanced if it is determined that the 
prisoner has responded to a sufficient degree to his treatment programs. 
The amount of the advancement should be proportional to the degree of 
response evidenced by the prisoner. In making the advancement, no rule 
restricting the amount of the reduction--whether based on the guidelines 
(Sec. 2.20) or the rule on superior program achievement (Sec. 2.60)--
shall be used. The decision will be the result of a case-by-case 
evaluation in which response to treatment programs, the seriousness of 
the offense, and the original parole prognosis are all weighed by the 
Commission with no one factor capable of excluding all others.
    (f) Parole violators. Parole violators returned to an institution 
following a local revocation hearing shall normally be considered for 
reparole under this section at a hearing within six months of their 
arrival at the institution.
    (g) Early termination from supervision. (1) A review of the YCA 
parolee's file will be conducted at the conclusion of each year of 
supervision (following receipt of the annual progress report--Form F-3) 
and six months prior to the expiration of his sentence (after receipt of 
the final report).
    (2) A YCA parolee shall not be continued on supervision beyond the 
time periods specified in the early termination guidelines (Sec. 2.43), 
unless case-specific factors indicate further supervision is warranted. 
The guidelines at Sec. 2.43 shall not be routinely used to deny early 
discharge to a YCA parolee who has yet to complete two (or three) years 
of clean supervision.
    (3) The Commission shall consider the facts and circumstances of 
each YCA parolee's case, focusing on the risk he poses to the public and 
the benefit he may obtain from further supervision. The nature of the 
offense and parolee's past criminal record shall be taken into account 
only to evaluate the risk that the parolee may still pose to the public.
    (4) In denying early discharge, the Commission shall inform the 
probation office by letter (with a copy to the YCA parolee) of the 
reasons for continued supervision. The reasons should pertain, whenever 
possible, to the facts and circumstances of the YCA parolee's case. If 
there are no case-specific factors which indicate that discharge should 
be either granted to denied and further supervision appears warranted, 
the Commission may inform the YCA

[[Page 152]]

parolee that he is continued on supervision because of its experience 
with similarly situated offenders.

[53 FR 49654, Dec. 9, 1988, as amended at 55 FR 289, Jan. 4, 1990]



Sec. 2.66  Paroling policy for prisoners serving aggregate U.S. and D.C. Code sentences.

    (a) Applicability. This regulation applies to all prisoners serving 
any combination of U.S. and D.C. Code sentences that have been 
aggregated by the U.S. Bureau of Prisons. Such individuals are 
considered for parole on the basis of a single parole eligibility and 
mandatory release date on the aggregate sentence. Pursuant to Sec. 2.5, 
every decision made by the Commission, including the grant, denial, and 
revocation of parole, is made on the basis of the aggregate sentence.
    (b) Basic policy. The Commission shall apply the guidelines at 
Sec. 2.20 to the prisoner's U.S. Code crimes, and the guidelines of the 
District of Columbia Board of Parole to the prisoner's D.C. Code crimes.
    (c) Determining the federal guideline range. The Commission shall 
first consider the U.S. Code offenses pursuant to the guidelines at 
Sec. 2.20, and shall determine the appropriate number of months to be 
served (the prisoner's ``federal time''). The Commission shall deem the 
``federal time'' to have commenced with the prisoner's initial 
commitment on the current aggregate sentence, including jail time.
    (d) Decisions above the federal guideline range. The ``federal 
time'' thus determined may be a decision within, below or above the 
federal guidelines, but it shall not exceed the limit of the U.S. Code 
sentence, i.e., the number of months that would be required by the 
statutory release date if the U.S. Code sentence is less than five 
years, or the two-thirds date if the U.S. Code sentence is five years or 
more. The D.C. Code criminal behavior may not be used as an aggravating 
offense factor, but may be used as predictive basis for exceeding the 
federal guideline range to account for the actual degree and/or 
seriousness of risk.
    (e) Scheduling the D.C. parole hearing. The Commission shall then 
schedule a D.C. parole hearing to be conducted not later than four 
months prior to the parole eligibility date, or the expiration of the 
``federal time,'' whichever is later. At the D.C. parole hearing the 
Commission shall apply the point score system of the D.C. Board of 
Parole, pursuant to the regulations of the D.C. Board of Parole, to 
determine the prisoner's suitability for release on parole.
    (f) Granting parole. In determining whether or not to grant parole 
pursuant to the point score system of the D.C. Board of Parole, and the 
length of any continuance for a rehearing if parole is denied, the 
Commission shall presume that the eligible prisoner has satisfied basic 
accountability for the D.C. Code offense behavior. However, the 
Commission retains the authority to consider any unusual offense 
circumstances pursuant to 28 DCMR 204.22 to deny parole despite a 
favorable point score, and to set a rehearing date beyond the ordinary 
schedule. The Commission shall also consider whether the totality of the 
prisoner's offense behaviors (U.S. and D.C. Code) warrants a continuance 
to reflect the true seriousness or the degree of the risk that the 
release of the prisoner would pose for the public welfare. Nonetheless, 
the Commission shall not deny parole or order a continuance, solely on 
the ground of punishment for the U.S. Code offenses standing alone, or 
on grounds that have been adequately accounted for in a decision to 
exceed the federal guideline range.
    (g) Hearings. The Commission shall, in accordance with Sec. 2.12 of 
these regulations, conduct an initial hearing to determine the federal 
time. This portion of the decision shall be subject to appeal pursuant 
to Sec. 2.26 of these regulations. A D.C. parole hearing to determine 
the prisoner's suitability for parole under the D.C. guidelines shall be 
conducted as ordered at the initial hearing. Prior to the D.C. parole 
hearing, statutory interim hearings shall be conducted pursuant to 
Sec. 2.14 of these regulations, including an interim hearing at 
eligibility on the aggregate sentence if no other interim hearing would 
be held. After the D.C. parole hearing, rehearings shall be conducted 
pursuant to the rules and policy guidelines of the D.C. Board of Parole, 
if release on parole is not granted.

[[Page 153]]

    (h) Revocation decisions. Violations of parole are violations on the 
aggregate sentence, and a parole violation warrant is therefore issued 
under the authority of the aggregate sentence. With regard to the 
reparole decision, the Commission shall follow the guidelines at 
Sec. 2.21 of these rules, but rehearings shall be scheduled according to 
the guidelines of the D.C. Board of Parole.
    (i) Forfeiture of street time. All time on parole shall be forfeited 
if required under Sec. 2.52(c) of these regulations. If not, the 
Commission shall divide the total time on parole (street time) according 
to the proportional relationship of the D.C. sentence to the U.S. 
sentence, and shall order the forfeiture of the portion corresponding to 
the D.C. sentence pursuant to D.C. Code 24-206(a). For example, if the 
prisoner is serving a two-year D.C. Code sentence and a three-year U.S. 
Code sentence, the D.C. sentence is two-fifths, or 40 percent, of the 
total aggregate sentence. If he was on parole 100 days, he therefore 
forfeits 40 days. ``Street time'' is measured from the date of release 
on parole to the execution of the warrant or confinement on other 
charges.

[54 FR 27842, June 30, 1989, as amended at 57 FR 41395, 41396, Sept. 10, 
1992]



PART 3--GAMBLING DEVICES--Table of Contents




Sec.
3.1  Definition.
3.2  Assistant Attorney General, Criminal Division.
3.3  Registration.
3.4  Registration to be made by letter.
3.5  Forfeiture of gambling devices.

    Authority: 89 Stat. 379; 5 U.S.C. 301, sec. 2, Reorganization Plan 
No. 2 of 1950, 64 Stat. 1261; 3 CFR, 1949-1953 Comp.

    Source: Order No. 331-65, 30 FR 2316, Feb. 20, 1965, unless 
otherwise noted.

    Cross Reference: For Organization Statement, Federal Bureau of 
Investigation, see subpart P of part 0 of this chapter.



Sec. 3.1   Definition.

    For the purpose of this part, the term Act means the Act of January 
2, 1951, 64 Stat. 1134, as amended by the Gambling Devices Act of 1962, 
76 Stat. 1075, 15 U.S.C. 1171 et seq.



Sec. 3.2   Assistant Attorney General, Criminal Division.

    The Assistant Attorney General, Criminal Division, is authorized to 
exercise the power and authority of and to perform the functions vested 
in the Attorney General by the Act. (See also 28 CFR 0.55(i).)

(28 U.S.C. 509 and 510)

[Order No. 960-81, 46 FR 52354, Oct. 27, 1981]



Sec. 3.3   Registration.

    Persons required to register pursuant to section 3 of the Act shall 
register with the Assistant Attorney General, Criminal Division, 
Department of Justice, Washington, DC 20530.



Sec. 3.4   Registration to be made by letter.

    No special forms are prescribed for the purpose of registering under 
the Act. Registration shall be accomplished by a letter addressed to the 
Assistant Attorney General, Criminal Division, setting forth the 
information required by section 3(b)(4) of the Act. Registration should 
be made by registered or certified mail inasmuch as receipt of 
registrations will not otherwise be acknowledged. The registration 
requirement of the Act is an annual requirement. Any person engaged in 
any one or more of the activities for which registration is required 
under the Act must, in conformity with the provisions of the Act, 
register in each calendar year in which he engages in such activities.



Sec. 3.5  Forfeiture of gambling devices.

    For purposes of seizure and forfeiture of gambling devices see 
section 8 of this chapter.

[Order No. 1128-86, 51 FR 8817, Mar. 17, 1986]



PART 4--PROCEDURE GOVERNING APPLICATIONS FOR CERTIFICATES OF EXEMPTION UNDER THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974--Table of Contents





Sec.
4.1  Definitions.

[[Page 154]]

4.2  Who may apply for Certificate of Exemption.
4.3  Contents of application.
4.4  Supporting affidavit; additional information.
4.5  Character endorsements.
4.6  Institution of proceedings.
4.7  Notice of hearing; postponements.
4.8  Hearing.
4.9  Representation.
4.10  Waiver of oral hearing.
4.11  Appearance; testimony; cross-examination.
4.12  Evidence which may be excluded.
4.13  Record for decision. Receipt of documents comprising record; 
          timing and extension.
4.14  Administrative law judge's recommended decision; exceptions 
          thereto; oral argument before Commission.
4.15  Certificate of Exemption.
4.16  Rejection of application.
4.17  Availability of decisions.

    Authority: Secs. 504, 606, 73 Stat. 536, 540 (29 U.S.C. 504, 526); 
and secs. 411, 507a, 88 Stat. 887, 894 (29 U.S.C. 1111, 1137).

    Source: 44 FR 6890, Feb. 2, 1979, unless otherwise noted.

    Cross Reference: For Organization Statement, U.S. Parole Commission, 
see subpart V of part 0 of this chapter.



Sec. 4.1  Definitions.

    As used in this part:
    (a) Labor Act means the Labor-Management Reporting and Disclosure 
Act of 1959 (73 Stat. 519).
    (b) Pension Act means the Employee Retirement Income Security Act of 
1974 (Pub. L. 93-406) (88 Stat. 829).
    (c) Acts means both of the above statutes.
    (d) Commission means the United States Parole Commission.
    (e) Secretary means the Secretary of Labor or his designee.
    (f) For proceedings under the ``Labor Act''
    (1) Employer means the labor organization, or person engaged in an 
industry or activity affecting commerce, or group or association of 
employers dealing with any labor organization, which an applicant under 
Sec. 4.2 desires to serve in a capacity for which he is ineligible under 
section 504(a) of the ``Labor Act''.
    (2) All other terms used in this part shall have the same meaning as 
identical or comparable terms when those terms are used in the ``Labor 
Act''.
    (g) For proceedings under the ``Pension Act''
    (1) Employer means the employee benefit plan with which an applicant 
under Sec. 4.2 desires to serve in a capacity for which he is ineligible 
under section 411(a) of the ``Pension Act'' (29 U.S.C. section 1111).
    (2) All other terms used in this part shall have the same meaning as 
identical or comparable terms when those terms are used in the ``Pension 
Act''.



Sec. 4.2  Who may apply for Certificate of Exemption.

    Any person who has been convicted of any of the crimes enumerated in 
section 504(a) of the ``Labor Act'' whose service, present or 
prospective, as described in that section is or would be prohibited by 
that section because of such a conviction or a prison term resulting 
therefrom; or any person who has been convicted of any of the crimes 
enumerated in section 411(a) of the ``Pension Act'' (29 U.S.C. section 
1111) whose service, present or prospective, as described in that 
section is or would be prohibited by that section because of such a 
conviction or a prison term resulting therefrom, may apply to the 
Commission for a Certificate of Exemption from such a prohibition under 
the applicable Act.



Sec. 4.3  Contents of application.

    A person applying for a Certificate of Exemption shall file with the 
Office of General Counsel, U.S. Parole Commission, 5550 Friendship 
Boulevard, Chevy Chase, Maryland 20815-7286, a signed application under 
oath, in seven copies, which shall set forth clearly and completely the 
following information:
    (a) The name and address of the applicant and any other names used 
by the applicant and dates of such use.
    (b) A statement of all convictions and imprisonments which prohibit 
the applicant's service under the provisions of the applicable Act.
    (c) Whether any citizenship rights were revoked as a result of 
conviction or imprisonment and if so the name of the court and date of 
judgment thereof and the extent to which such rights have been restored.
    (d) The name and location of the employer and a description of the 
office or

[[Page 155]]

paid position, including the duties thereof, for which a Certificate of 
Exemption is sought.
    (e) A full explanation of the reasons or grounds relied upon to 
establish that the applicant's service in the office or employment for 
which a Certificate of Exemption is sought would not be contrary to the 
purposes of the applicable Act.
    (f) A statement that the applicant does not, for the purpose of the 
proceeding, contest the validity of any conviction.

(28 U.S.C. 509 and 510, 5 U.S.C. 301)

[44 FR 6890, Feb. 2, 1979, as amended at 46 FR 52354, Oct. 27, 1981]



Sec. 4.4  Supporting affidavit; additional information.

    (a) Each application filed with the Commission must be accompanied 
by a signed affidavit, in 7 copies, setting forth the following 
concerning the personal history of the applicant:
    (1) Place and date of birth. If the applicant was not born in the 
United States, the time of first entry and port of entry, whether he is 
a citizen of the United States, and if naturalized, when, where and how 
he became naturalized and the number of his Certificate of 
Naturalization.
    (2) Extent of education, including names of schools attended.
    (3) History of marital and family status, including a statement as 
to whether any relatives by blood or marriage are currently serving in 
any capacity with any employee benefit plan, or labor organization, 
group or association of employers dealing with labor organizations or 
industrial labor relations group, or currently advising or representing 
any employer with respect to employee organizing, concerted activities, 
or collective bargaining activities.
    (4) Present employment, including office or offices held, with a 
description of the duties thereof.
    (5) History of employment, including military service, in 
chronological order.
    (6) Licenses held, at the present time or at any time in the past 
five years, to possess or carry firearms.
    (7) Veterans' Administration claim number and regional office 
handling claim, if any.
    (8) A listing (not including traffic offenses for which a fine of 
not more than $25 was imposed or collateral of not more than $25 was 
forfeited) by date and place of all arrests, convictions for felonies, 
misdemeanors, or offenses and all imprisonment or jail terms resulting 
therefrom, together with a statement of the circumstances of each 
violation which led to arrest or conviction.
    (9) Whether applicant was ever on probation or parole, and if so the 
names of the courts by which convicted and the dates of conviction.
    (10) Names and locations of all employee benefit plans, labor 
organizations or employer groups with which the applicant has ever been 
associated or employed, and all employers or employee benefit plans 
which he has advised or represented concerning employee organizing, 
concerted activities, or collective bargaining activities, together with 
a description of the duties performed in each such employment or 
association.
    (11) A statement of applicant's net worth, including all assets held 
by him or in the names of others for him, the amount of each liability 
owed by him or by him together with any other person and the amount and 
source of all income during the immediately preceding five calendar 
years plus income to date of application.
    (12) Any other information which the applicant feels will assist the 
Commission in making its determination.
    (b) The Commission may require of the applicant such additional 
information as it deems appropriate for the proper consideration and 
disposition of his application.



Sec. 4.5  Character endorsements.

    Each application filed with the Commission must be accompanied by 
letters or other forms of statement (in three copies) from six persons 
addressed to the Chairman, U.S. Parole Commission, attesting to the 
character and reputation of the applicant. The statement as to character 
shall indicate the length of time the writer has

[[Page 156]]

known applicant, and shall describe applicant's character traits as they 
relate to the position for which the exemption is sought and the duties 
and responsibilities thereof. The statement as to reputation shall 
attest to applicant's reputation in his community or in his circle of 
business or social acquaintances. Each letter or other form of statement 
shall indicate that it has been submitted in compliance with procedures 
under the respective Act and that applicant has informed the writer of 
the factual basis of his application. The persons submitting letters or 
other forms of statement shall not include relatives by blood or 
marriage, prospective employers, or persons serving in any official 
capacity with an employee benefit plan, labor organization, group or 
association of employers dealing with labor organizations or industrial 
labor relations group.



Sec. 4.6  Institution of proceedings.

    All applications and supporting documents received by the Commission 
shall be reviewed for completeness by the Office of General Counsel of 
the Parole Commission and if complete and fully in compliance with the 
regulations of this part the Office of General Counsel shall accept them 
for filing. Applicant and/or his representative will be notified by the 
Office of General Counsel of any deficiency in the application and 
supporting documents. The amount of time allowed for deficiencies to be 
remedied will be specified in said notice. In the event such 
deficiencies are not remedied within the specified period or any 
extension thereof, granted after application to the Commission in 
writing within the specified period, the application shall be deemed to 
have been withdrawn and notice thereof shall be given to applicant.



Sec. 4.7  Notice of hearing; postponements.

    Upon the filing of an application, the Commission shall:
    (a) Set the application for a hearing on a date within a reasonable 
time after its filing and notify the applicant of such date by certified 
mail;
    (b) Give notice, as required by the respective Act, to the 
appropriate State, County, or Federal prosecuting officials in the 
jurisdiction or jurisdictions in which the applicant was convicted that 
an application for a Certificate of Exemption has been filed and the 
date for hearing thereon; and
    (c) Notify the Secretary that an application has been filed and the 
date for hearing thereon and furnish him copies of the application and 
all supporting documents.
Any party may request a postponement of a hearing date in writing from 
the Office of General Counsel at any time prior to ten (10) days before 
the scheduled hearing. No request for postponement other than the first 
for any party will be considered unless a showing is made of cause 
entirely beyond the control of the requester. The granting of such 
requests will be within the discretion of the Commission. In the event 
of a failure to appear on the hearing date as originally scheduled or 
extended, the absent party will be deemed to have waived his right to a 
hearing. The hearing will be conducted with the parties present 
participating and documentation, if any, of the absent party entered 
into the record.



Sec. 4.8  Hearing.

    The hearing on the application shall be held at the offices of the 
Commision in Washington, DC, or elsewhere as the Commission may direct. 
The hearing shall be held before the Commission, before one or more 
Commissioners, or before one or more administrative law judges appointed 
as provided by section 11 of the Administrative Procedure Act (5 U.S.C. 
3105) as the Commission by order shall determine. Hearings shall be 
conducted in accordance with sections 7 and 8 of the Administrative 
Procedure Act (5 U.S.C. 556, 557).



Sec. 4.9  Representation.

    The applicant may be represented before the Commission by any person 
who is a member in good standing of the bar of the Supreme Court of the 
United States or of the highest court of any State or territory of the 
United States, or the District of Columbia, and who is not under any 
order of any court suspending, enjoining, restraining, or disbarring him 
from, or otherwise restricting him in, the practice of law. Whenever a 
person acting in a representative capacity appears in person

[[Page 157]]

or signs a paper in practice before the Commission, his personal 
appearance or signature shall constitute a representation to the 
Commission that under the provisions of this part and applicable law he 
is authorized and qualified to represent the particular person in whose 
behalf he acts. Further proof of a person's authority to act in a 
representative capacity may be required. When any applicant is 
represented by an attorney at law, any notice or other written 
communication required or permitted to be given to or by such applicant 
shall be given to or by such attorney. If an applicant is represented by 
more than one attorney, service by or upon any one of such attorneys 
shall be sufficient.



Sec. 4.10  Waiver of oral hearing.

    The Commission upon receipt of a statement from the Secretary that 
he does not object, and in the absence of any request for oral hearing 
from the others to whom notice has been sent pursuant to Sec. 4.7 may 
grant an application without receiving oral testimony with respect to 
it.



Sec. 4.11  Appearance; testimony; cross-examination.

    (a) The applicant shall appear and, except as otherwise provided in 
Sec. 4.10, shall testify at the hearing and may cross-examine witnesses.
    (b) The Secretary and others to whom notice has been sent pursuant 
to Sec. 4.7 shall be afforded an opportunity to appear and present 
evidence and cross-examine witnesses, at any hearing.
    (c) In the discretion of the Commission or presiding officer, other 
witnesses may testify at the hearing.



Sec. 4.12  Evidence which may be excluded.

    The Commission or officer presiding at the hearing may exclude 
irrelevant, untimely, immaterial, or unduly repetitious evidence.



Sec. 4.13  Record for decision. Receipt of documents comprising record; timing and extension.

    (a) The application and all supporting documents, the transcript of 
the testimony and oral argument at the hearing, together with any 
exhibits received and other documents filed pursuant to these procedures 
and/or the Administrative Procedures Act shall be made parts of the 
record for decision.
    (b) At the conclusion of the hearing the presiding officer shall 
specify the time for submission of proposed findings of fact and 
conclusions of law (unless waived by the parties); transcript of the 
hearing, and supplemental exhibits, if any. He shall set a tentative 
date for the recommended decision based upon the timing of these 
preliminary steps. Extensions of time may be requested by any party, in 
writing, from the Parole Commission. Failure of any party to comply with 
the time frame as established or extended will be deemed to be a waiver 
on his part of his right to submit the document in question. The 
adjudication will proceed and the absence of said document and reasons 
therefor will be noted in the record.



Sec. 4.14  Administrative law judge's recommended decision; exceptions thereto; oral argument before Commission.

    Whenever the hearing is conducted by an administrative law judge, at 
the conclusion of the hearing he shall submit a recommended decision to 
the Commission, which shall include a statement of findings and 
conclusions, as well as the reasons therefor. The applicant, the 
Secretary and others to whom notice has been sent pursuant to Sec. 4.7 
may file with the Commission, within 10 days after having been furnished 
a copy of the recommended decision, exceptions thereto and reasons in 
support thereof. The Commission may order the taking of additional 
evidence and may request the applicant and others to appear before it. 
The Commission may invite oral argument before it on such questions as 
it desires.



Sec. 4.15  Certificate of Exemption.

    The applicant, the Secretary and others to whom notice has been sent 
pursuant to Sec. 4.7 shall be served a copy of the Commission's decision 
and order with respect to each application. Whenever the Commission 
decision is that

[[Page 158]]

the application be granted, the Commission shall issue a Certificate of 
Exemption to the applicant. The Certificate of Exemption shall extend 
only to the stated employment with the prospective employer named in the 
application.



Sec. 4.16  Rejection of application.

    No application for a Certificate of Exemption shall be accepted from 
any person whose application for a Certificate of Exemption has been 
withdrawn, deemed withdrawn due to failure to remedy deficiencies in a 
timely manner, or denied by the Commission within the preceding 12 
months.



Sec. 4.17  Availability of decisions.

    The Commission's Decisions under both Acts are available for 
examination in the Office of the U.S. Parole Commission, 5550 Friendship 
Boulevard, Chevy Chase, Maryland 20815-7286. Copies will be mailed upon 
written request to the Office of General Counsel, U.S. Parole 
Commission, at the above address at a cost of ten cents per page.

(28 U.S.C. 509 and 510, 5 U.S.C. 301)

[44 FR 6890, Feb. 2, 1979, as amended at 46 FR 52354, Oct. 27, 1981]



PART 5--ADMINISTRATION AND ENFORCEMENT OF FOREIGN AGENTS REGISTRATION ACT OF 1938, AS AMENDED--Table of Contents




Sec.
5.1  Administration and enforcement of the Act.
5.2  Inquiries concerning application of the Act.
5.3  Filing of a registration statement.
5.4  Computation of time.
5.5  Registration fees.
5.100  Definition of terms.
5.200  Registration.
5.201  Exhibits.
5.202  Short form registration statement.
5.203  Supplemental statement.
5.204  Amendments.
5.205  Termination of registration.
5.206  Language and wording of registration statement.
5.207  Incorporation by reference.
5.208  Disclosure of foreign principals.
5.209  Information relating to employees.
5.210  Amount of detail required in information relating to registrant's 
          activities and expenditures.
5.211  Sixty-day period to be covered in initial statement.
5.300  Burden of establishing availability of exemption.
5.301  Exemption under section 3(a) of the Act.
5.302  Exemptions under sections 3 (b) and (c) of the Act.
5.303  Exemption available to persons accredited to international 
          organizations.
5.304  Exemptions under sections 3 (d) and (e) of the Act.
5.305  Exemption under section 3(f) of the Act.
5.306  Exemption under section 3(g) of the Act.
5.400  Filing of political propaganda.
5.401  Dissemination report.
5.402  Labeling political propaganda.
5.500  Maintenance of books and records.
5.501  Inspection of books and records.
5.600  Public examination of records.
5.601  Copies of records and information available.
5.800  Ten-day filing requirement.
5.801  Activity beyond 10-day period.
5.1101  Copies of the Report of the Attorney General.

    Authority: 28 U.S.C. 509, 510; Section 1, 56 Stat. 248, 257 (22 
U.S.C. 620); title I, Pub. L. 102-395, 106 Stat. 1828, 1831 (22 U.S.C. 
612 note).

    Source: Order No. 376-67, 32 FR 6362, Apr. 22, 1967, unless 
otherwise noted.



Sec. 5.1   Administration and enforcement of the Act.

    (a) The administration and enforcement of the Foreign Agents 
Registration Act of 1938, as amended (22 U.S.C. 611-621), is subject to 
the general supervision and direction of the Attorney General, assigned 
to, conducted, handled, and supervised by the Assistant Attorney General 
in charge of the Criminal Division (Sec. 0.60(b) of this chapter).
    (b) The Assistant Attorney General is authorized to prescribe such 
forms, in addition to or in lieu of those specified in the regulations 
in this part, as may be necessary to carry out the purposes of this 
part.
    (c) Copies of the Act, and of the rules, regulations, and forms 
prescribed pursuant to the Act, and information concerning the foregoing 
may be obtained upon request without charge from the Registration Unit, 
Criminal Division,

[[Page 159]]

Department of Justice, Washington, DC 20530.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 568-74, 39 FR 18646, May 
29, 1974]



Sec. 5.2  Inquiries concerning application of the Act.

    (a) General. Any present or prospective agent of a foreign 
principal, or the agent's attorney, may request from the Assistant 
Attorney General a statement of the present enforcement intentions of 
the Department of Justice under the Act with respect to any presently 
contemplated activity, course of conduct, expenditure, receipt of money 
or thing of value, or transaction, and specifically with respect to 
whether the same requires registration and disclosure pursuant to the 
Act, or is excluded from coverage or exempted from registration and 
disclosure under any provision of the Act.
    (b) Anonymous, hypothetical, non-party and ex post facto review 
requests excluded. The entire transaction which is the subject of the 
review request must be an actual, as opposed to hypothetical, 
transaction and involve disclosed, as opposed to anonymous, agents and 
principals. Review requests must be submitted by a party to the 
transaction or the party's attorney, and have no application to a party 
that does not join in the request. A review request may not involve only 
past conduct.
    (c) Fee. All requests for statements of the Department's present 
enforcement intentions must be accompanied by a non-refundable filing 
fee submitted in accordance with Sec. 5.5.
    (d) Address. A review request must be submitted in writing to the 
Assistant Attorney General, Criminal Division, Attention: Chief, 
Registration Unit. The mailing address is 1400 New York Avenue, NW., 
room 9300, Washington, DC 20530.
    (e) Contents. A review request shall be specific and contain in 
detail all relevant and material information bearing on the actual 
activity, course of conduct, expenditure, receipt of money or thing of 
value, or transaction for which review is requested. There is no 
prescribed format for the request, but each request must include:
    (1) The identity(ies) of the agent(s) and foreign principal(s) 
involved;
    (2) The nature of the agent's activities for or in the interest of 
the foreign principal;
    (3) A copy of the existing or proposed written contract with the 
foreign principal or a full description of the terms and conditions of 
each existing or proposed oral agreement; and
    (4) The applicable statutory or regulatory basis for the exemption 
or exclusion claimed.
    (f) Certification. If the requesting party is an individual, the 
review request must be signed by the prospective or current agent, or, 
if the requesting party is not an individual, the review request must be 
signed on behalf of each requesting party by an officer, a director, a 
person performing the functions of an officer or a director of, or an 
attorney for, the requesting party. Each such person signing the review 
request must certify that the review request contains a true, correct 
and complete disclosure with respect to the proposed conduct.
    (g) Additional information. Each party shall provide any additional 
information or documents the Criminal Division may thereafter request in 
order to review a matter. Any information furnished orally shall be 
confirmed promptly in writing, signed by the same person who signed the 
initial review request and certified to be a true, correct and complete 
disclosure of the requested information.
    (h) Outcomes. After submission of a review request, the Criminal 
Division, in its discretion, may state its present enforcement intention 
under the Act with respect to the proposed conduct; may decline to state 
its present enforcement intention; or, if circumstances warrant, may 
take such other position or initiate such other action as it considers 
appropriate. Any requesting party or parties may withdraw a review 
request at any time. The Criminal Division remains free, however, to 
submit such comments to the requesting party or parties as it deems 
appropriate. Failure to take action

[[Page 160]]

after receipt of a review request, documents or information, whether 
submitted pursuant to this procedure or otherwise, shall not in any way 
limit or stop the Criminal Division from taking any action at such time 
thereafter as it deems appropriate. The Criminal Division reserves the 
right to retain any review request, document or information submitted to 
it under this procedure or otherwise and to use any such request, 
document or information for any governmental purpose.
    (i) Time for response. The Criminal Division shall respond to any 
review request within 30 days after receipt of the review request and of 
any requested additional information and documents.
    (j) Written decisions only. The requesting party or parties may rely 
only upon a written Foreign Agents Registration Act review letter signed 
by the Assistant Attorney General or his delegate.
    (k) Effect of review letter. Each review letter can be relied upon 
by the requesting party or parties to the extent the disclosure was 
accurate and complete and to the extent the disclosure continues 
accurately and completely to reflect circumstances after the date of 
issuance of the review letter.
    (l) Compliance. Neither the submission of a review request, nor its 
pendency, shall in any way alter the responsibility of the party or 
parties to comply with the Act.
    (m) Confidentiality. Any written material submitted pursuant to a 
request made under this section shall be treated as confidential and 
shall be exempt from disclosure.

[Order No. 1757-93, 58 FR 37418, July 12, 1993]



Sec. 5.3   Filing of a registration statement.

    All statements, exhibits, amendments, and other documents and papers 
required to be filed under the Act or under this part shall be submitted 
in triplicate to the Registration Unit. An original document and two 
duplicates meeting the requirements of Rule 1001(4), Federal Rules of 
Evidence (28 U.S.C. Appendix), shall be deemed to meet this requirement. 
Filing of such documents may be made in person or by mail, and they 
shall be deemed to be filed upon their receipt by the Registration Unit.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 1757-93, 58 FR 37419, July 
12, 1993]



Sec. 5.4   Computation of time.

    Sundays and holidays shall be counted in computing any period of 
time prescribed in the Act or in the rules and regulations in this part.



Sec. 5.5  Registration fees.

    (a) A registrant shall pay a registration fee with each initial 
registration statement filed under Sec. 5.200 and each supplemental 
registration statement under Sec. 5.203 at the time such registration 
statement is filed. The registration fee may be paid by cash or by check 
or money order made payable to ``FARA Registration Unit''. The 
Registration Unit, in its discretion, may require that the fee be paid 
by a certified or cashier's check or by a United States Postal money 
order.
    (b) Payment of fees shall accompany any order for copies or request 
for information, and all applicable fees shall be collected before 
copies or information will be made available. Payment may be made by 
cash or by check or money order made payable to ``FARA Registration 
Unit''. The Registration Unit, in its discretion, may require that the 
fee be paid by a certified or cashier's check or by a United States 
Postal money order.
    (c) Registration fees shall be waived in whole or in part, as 
appropriate, in the case of any individual person required to register 
under the Act who has demonstrated to the satisfaction of the 
Registration Unit that he or she is financially unable to pay the fees 
in their entirety. An individual seeking to avail himself or herself of 
this provision shall file with the registration statement a declaration 
made in compliance with section 1746 of title 28, United States Code, 
setting forth the information required by Form 4, Federal Rules of 
Appellate Procedure (28 U.S.C. appendix).
    (d) The fees shall be as follows:
    (1) For initial registration statements (including an exhibit A for 
one foreign principal) under Sec. 5.200: $305.00;

[[Page 161]]

    (2) For supplemental registration statements under Sec. 5.203: 
$305.00 per foreign principal;
    (3) For exhibit A under Sec. 5.201(a)(1): $305.00 per foreign 
principal not currently reported under Sec. 5.200 or Sec. 5.203;
    (4) For exhibit B under Sec. 5.201(a)(2): no fee;
    (5) For exhibits C and D (no forms) under Sec. 5.201: no fee;
    (6) For short-form registration statements under Sec. 5.202: no fee;
    (7) For amendments under Sec. 5.204; no fee;
    (8) For statements of present enforcement intentions under Sec. 5.2: 
$96.00 per review request;
    (9) For each quarter hour of search time under Sec. 5.601: $4.00;
    (10) For copies of registration statements and supplements, 
amendments, exhibits thereto, dissemination reports, and copies of 
political propaganda and other materials contained in the public files, 
under Sec. 5.601: fifty cents ($.50) per copy of each page of the 
material requested;
    (11) For copies of registration statements and supplements, 
amendments, exhibits thereto, dissemination reports, and copies of 
political propaganda and other materials contained in the public files, 
produced by computer, such as tapes or printouts, under Sec. 5.601: 
actual direct cost of producing the copy, including the apportionable 
salary costs; and
    (12) For computer searches of records through the use of existing 
programming: Direct actual costs, including the cost of operating a 
central processing unit for that portion of operating time that is 
directly attributable to searching for records responsive to a request 
and the salary costs apportionable to the search.
    (e) The cost of delivery of any document by the Registration Unit by 
any means other than ordinary mail shall be charged to the requester at 
a rate sufficient to cover the expense to the Registration Unit.
    (f) The Assistant Attorney General is hereby authorized to adjust 
the fees established by this section from time to time to reflect and 
recover the costs of the administration of the Registration Unit under 
the Act.
    (g) Fees collected under this provision shall be available for the 
support of the Registration Unit.
    (h) Notwithstanding Sec. 5.3, no document required to be filed under 
the Act shall be deemed to have been filed unless it is accompanied by 
the applicable fee except as provided by paragraph (c) of this section.

[Order No. 1757-93, 58 FR 37419, July 12, 1993]



Sec. 5.100   Definition of terms.

    (a) As used in this part:
    (1) The term Act means the Foreign Agents Registration Act of 1938, 
as amended (22 U.S.C. 611-621).
    (2) The term Attorney General means the Attorney General of the 
United States.
    (3) The term Assistant Attorney General means the Assistant Attorney 
General in charge of the Criminal Division, Department of Justice, 
Washington, DC 20530.
    (4) The term Secretary of State means the Secretary of State of the 
United States.
    (5) The term Registration Unit means the Registration Unit, Internal 
Security Section, Criminal Division, Department of Justice, Washington, 
DC 20530.
    (6) The term rules and regulations includes the regulations in this 
part and all other rules and regulations prescribed by the Attorney 
General pursuant to the Act and all registration forms and instructions 
thereon which may be prescribed by the regulations in this part or by 
the Assistant Attorney General.
    (7) The term registrant means any person who has filed a 
registration statement with the Registration Unit, pursuant to section 
2(a) of the Act and Sec. 5.3.
    (8) Unless otherwise specified, the term agent of a foreign 
principal means an agent of a foreign principal required to register 
under the Act.
    (9) The term foreign principal includes a person any of whose 
activities are directed or indirectly supervised, directed, controlled, 
financed, or subsidized in whole or in major part by a foreign principal 
as that term is defined in section 1(b) of the Act.
    (10) The term initial statement means the statement required to be 
filed with

[[Page 162]]

the Attorney General under section 2(a) of the Act.
    (11) The term supplemental statement means the supplement required 
to be filed with the Attorney General under section 2(b) of the Act at 
intervals of 6 months following the filing of the initial statement.
    (12) The term final statement means the statement required to be 
filed with the Attorney General following the termination of the 
registrant's obligation to register.
    (13) The term short form registration statement means the 
registration statement required to be filed by certain partners, 
officers, directors, associates, employees, and agents of a registrant.
    (b) As used in the Act, the term control or any of its variants 
shall be deemed to include the possession or the exercise of the power, 
directly or indirectly, to determine the policies or the activities of a 
person, whether through the ownership of voting rights, by contract, or 
otherwise.
    (c) The term agency as used in sections 1(c), 1(o), 1(q), 3(g), and 
4(e) of the Act shall be deemed to refer to every unit in the executive 
and legislative branches of the Government of the United States, 
including committees of both Houses of Congress.
    (d) The term official as used in sections 1(c), 1(o), 1(q), 3(g), 
and 4(e) of the Act shall be deemed to include Members and officers of 
both Houses of Congress as well as officials in the executive branch of 
the Government of the United States.
    (e) The terms formulating, adopting, or changing, as used in section 
1(o) of the Act, shall be deemed to include any activity which seeks to 
maintain any existing domestic or foreign policy of the United States. 
They do not include making a routine inquiry of a Government official or 
employee concerning a current policy or seeking administrative action in 
a matter where such policy is not in question.
    (f) The term domestic or foreign policies of the United States, as 
used in sections 1 (o) and (p) of the Act, shall be deemed to relate to 
existing and proposed legislation, or legislative action generally; 
treaties; executive agreements, proclamations, and orders; decisions 
relating to or affecting departmental or agency policy, and the like.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973]



Sec. 5.200   Registration.

    (a) Registration under the Act is accomplished by the filing of an 
initial statement together with all the exhibits required by Sec. 5.201 
and the filing of a supplemental statement at intervals of 6 months for 
the duration of the principal-agent relationship requiring registration.
    (b) The initial statement shall be filed on Form OBD-63.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981]



Sec. 5.201   Exhibits.

    (a) The following described exhibits are required to be filed for 
each foreign principal of the registrant:
    (1) Exhibit A. This exhibit, which shall be filed on Form OBD-67, 
shall set forth the information required to be disclosed concerning each 
foreign principal.
    (2) Exhibit B. This exhibit, which shall be filed on Form OBD-65, 
shall set forth the agreement or understanding between the registrant 
and each of his foreign principals as well as the nature and method of 
performance of such agreement or understanding and the existing or 
proposed activities engaged in or to be engaged in, including political 
activities, by the registrant for the foreign principal.
    (b) Any change in the information furnished in exhibit A or B shall 
be reported to the Registration Unit within 10 days of such change. The 
filing of a new exhibit may then be required by the Assistant Attorney 
General.
    (c) Whenever the registrant is an association, corporation, 
organization, or any other combination of individuals, the following 
documents shall be filed as exhibit C:
    (1) A copy of the registrant's charter, articles of incorporation or 
association, or constitution, and a copy of its bylaws, and amendments 
thereto;
    (2) A copy of every other instrument or document, and a statement of 
the

[[Page 163]]

terms and conditions of every oral agreement, relating to the 
organization, powers and purposes of the registrant.
    (d) The requirement to file any of the documents described in 
paragraphs (c) (1) and (2) of this section may be wholly or partially 
waived upon written application by the registrant to the Assistant 
Attorney General setting forth fully the reasons why such waiver should 
be granted.
    (e) Whenever a registrant, within the United States, receives or 
collects contributions, loans, money, or other things of value, as part 
of a fund-raising campaign, for or in the interests of his foreign 
principal, he shall file as exhibit D a statement so captioned setting 
forth the amount of money or the value of the thing received or 
collected, the names and addresses of the persons from whom such money 
or thing of value was received or collected, and the amount of money or 
a description of the thing of value transmitted to the foreign principal 
as well as the manner and time of such transmission.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 960-81, 46 FR 52355, Oct. 
27, 1981]



Sec. 5.202   Short form registration statement.

    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, each partner, officer, director, associate, employee, and agent 
of a registrant is required to file a registration statement under the 
Act. Unless the Assistant Attorney General specifically directs 
otherwise, this obligation may be satisfied by the filing of a short 
form registration statement.
    (b) A partner, officer, director, associate, employee, or agent of a 
registrant who does not engage directly in activity in furtherance of 
the interests of the foreign principal is not required to file a short 
form registration statement.
    (c) An employee or agent of a registrant whose services in 
furtherance of the interests of the foreign principal are rendered in a 
clerical, secretarial, or in a related or similar capacity, is not 
required to file a short form registration statement.
    (d) Whenever the agent of a registrant is a partnership, 
association, corporation, or other combination of individuals, and such 
agent is not within the exemption of paragraph (b) of this section, only 
those partners, officers, directors, associates, and employees who 
engage directly in activity in furtherance of the interests of the 
registrant's foreign principal are required to file a short form 
registration statement.
    (e) The short form registration statement shall be filed on Form 
OBD-66. Any change affecting the information furnished with respect to 
the nature of the services rendered by the person filing the statement, 
or the compensation he receives, shall require the filing of a new short 
form registration statement within 10 days after the occurrence of such 
change. There is no requirement to file exhibits or supplemental 
statements to a short form registration statement.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981]



Sec. 5.203   Supplemental statement.

    (a) Supplemental statements shall be filed on Form OBD-64.
    (b) The obligation to file a supplemental statement at 6-month 
intervals during the agency relationship shall continue even though the 
registrant has not engaged during the period in any activity in the 
interests of his foreign principal.
    (c) The time within which to file a supplemental statement may be 
extended for sufficient cause shown in a written application to the 
Assistant Attorney General.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981]



Sec. 5.204   Amendments.

    (a) An initial, supplemental, or final statement which is deemed 
deficient by the Assistant Attorney General must be amended upon his 
request. Such amendment shall be filed upon Form

[[Page 164]]

OBD-68 and shall identify the item of the statement to be amended.
    (b) A change in the information furnished in an initial or 
supplemental statement under clauses (3), (4), (6), and (9) of section 
2(a) of the Act shall be by amendment, unless the notice which is 
required to be given of such change under section 2(b) is deemed 
sufficient by the Assistant Attorney General.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981]



Sec. 5.205   Termination of registration.

    (a) A registrant shall, within 30 days after the termination of his 
obligation to register, file a final statement on Form OBD-64 with the 
Registration Unit for the final period of the agency relationship not 
covered by any previous statement.
    (b) Registration under the Act shall be terminated upon the filing 
of a final statement, if the registrant has fully discharged all his 
obligations under the Act.
    (c) A registrant whose activities on behalf of each of his foreign 
principals become confined to those for which an exemption under section 
3 of the Act is available may file a final statement notwithstanding the 
continuance of the agency relationship with the foreign principals.
    (d) Registration under the Act may be terminated upon a finding that 
the registrant is unable to file the appropriate forms to terminate the 
registration as a result of the death, disability, or dissolution of the 
registrant or where the requirements of the Act cannot be fulfilled by a 
continuation of the registration.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 960-81, 46 FR 52355, Oct. 
27, 1981; Order No. 1757-93, 58 FR 37419, July 12, 1993]



Sec. 5.206   Language and wording of registration statement.

    (a) Except as provided in the next sentence, each statement, 
amendment, exhibit, or notice required to be filed under the Act shall 
be submitted in the English language. An exhibit may be filed even 
though it is in a foreign language if it is accompanied by an English 
translation certified under oath by the translator before a notary 
public, or other person authorized by law to administer oaths for 
general purposes, as a true and accurate translation.
    (b) A statement, amendment, exhibit, or notice required to be filed 
under the Act should be typewritten, but will be accepted for filing if 
it is written legibly in ink.
    (c) Copies of any document made by any of the duplicating processes 
may be filed pursuant to the Act if they are clear and legible.
    (d) A response shall be made to every item on each pertinent form, 
unless a registrant is specifically instructed otherwise in the form. 
Whenever the item is inapplicable or the appropriate response to an item 
is ``none,'' an express statement to that effect shall be made.



Sec. 5.207   Incorporation by reference.

    (a) Each initial, supplemental, and final statement shall be 
complete in and of itself. Incorporation of information by reference to 
statements previously filed is not permissible.
    (b) Whenever insufficient space is provided for response to any item 
in a form, reference shall be made in such space to a full insert page 
or pages on which the item number and inquiry shall be restated and a 
complete answer given. Inserts and riders of less than full page size 
should not be used.



Sec. 5.208   Disclosure of foreign principals.

    A registrant who represents more than one foreign principal is 
required to list in the statements he files under the Act only those 
foreign principals for whom he is not entitled to claim exemption under 
section 3 of the Act.



Sec. 5.209   Information relating to employees.

    A registrant shall list in the statements he files under the Act 
only those employees whose duties require them to engage directly in 
activities in furtherance of the interests of the foreign principal.

[[Page 165]]



Sec. 5.210   Amount of detail required in information relating to registrant's activities and expenditures.

    A statement is ``detailed'' within the meaning of clauses 6 and 8 of 
section 2 (a) of the Act when it has that degree of specificity 
necessary to permit meaningful public evaluation of each of the 
significant steps taken by a registrant to achieve the purposes of the 
agency relation.



Sec. 5.211   Sixty-day period to be covered in initial statement.

    The 60-day period referred to in clauses 5, 7, and 8 of section 2(a) 
of the Act shall be measured from the time that a registrant has 
incurred an obligation to register and not from the time that he files 
his initial statement.



Sec. 5.300   Burden of establishing availability of exemption.

    The burden of establishing the availability of an exemption from 
registration under the Act shall rest upon the person for whose benefit 
the exemption is claimed.



Sec. 5.301   Exemption under section 3(a) of the Act.

    (a) A consular officer of a foreign government shall be considered 
duly accredited under section 3(a) of the Act whenever he has received 
formal recognition as such, whether provisionally or by exequatur, from 
the Secretary of State.
    (b) The exemption provided by section 3(a) of the Act to a duly 
accredited diplomatic or consular officer is personal and does not 
include within its scope an office, bureau, or other entity.



Sec. 5.302   Exemptions under sections 3 (b) and (c) of the Act.

    The exemptions provided by sections 3 (b) and (c) of the Act shall 
not be available to any person described therein unless he has filed 
with the Secretary of State a fully executed Notification of Status with 
a Foreign Government (Form D.S. 394).



Sec. 5.303   Exemption available to persons accredited to international organizations.

    Persons designated by foreign governments as their representatives 
in or to an international organization, other than nationals of the 
United States, are exempt from registration under the Act in accordance 
with the provisions of the International Organizations Immunities Act, 
if they have been duly notified to and accepted by the Secretary of 
State as such representatives, officers, or employees, and if they 
engage exclusively in activities which are recognized as being within 
the scope of their official functions.



Sec. 5.304   Exemptions under sections 3 (d) and (e) of the Act.

    (a) As used in section 3(d), the term trade or commerce shall 
include the exchange, transfer, purchase, or sale of commodities, 
services, or property of any kind.
    (b) For the purpose of section 3(d) of the Act, activities of an 
agent of a foreign principal as defined in section 1(c) of the Act, in 
furtherance of the bona fide trade or commerce of such foreign 
principal, shall be considered ``private,'' even though the foreign 
principal is owned or controlled by a foreign government, so long as the 
activities do not directly promote the public or political interests of 
the foreign government.
    (c) For the purpose of section 3(d) of the Act, the disclosure of 
the identity of the foreign person that is required under section 1(q) 
of the Act shall be made to each official of the U.S. Government with 
whom the activities are conducted. This disclosure shall be made to the 
Government official prior to his taking any action upon the business 
transacted. The burden of establishing that the required disclosure was 
made shall lie upon the person claiming the exemption.
    (d) The exemption provided by section 3(e) of the Act shall not be 
available to any person described therein if he engages in political 
activities as defined in section 1(o) of the Act for or in the interests 
of his foreign principal.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
463-71, 36 FR 12212, June 29, 1971]



Sec. 5.305   Exemption under section 3(f) of the Act.

    The exemption provided by section 3(f) of the Act shall not be 
available

[[Page 166]]

unless the President has, by publication in the Federal Register, 
designated for the purpose of this section the country the defense of 
which he deems vital to the defense of the United States.



Sec. 5.306   Exemption under section 3(g) of the Act.

    For the purpose of section 3(g) of the Act--
    (a) Attempts to influence or persuade agency personnel or officials 
other than in the course of established agency proceedings, whether 
formal or informal, shall include only such attempts to influence or 
persuade with reference to formulating, adopting, or changing the 
domestic or foreign policies of the United States or with reference to 
the political or public interests, policies, or relations of a 
government of a foreign country or a foreign political party; and
    (b) If an attorney engaged in legal representation of a foreign 
principal before an agency of the U.S. Government is not otherwise 
required to disclose the identity of his principal as a matter of 
established agency procedure, he must make such disclosure, in 
conformity with this section of the Act, to each of the agency's 
personnel or officials before whom and at the time his legal 
representation is undertaken. The burden of establishing that the 
required disclosure was made shall like upon the person claiming the 
exemption.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
463-71, 36 FR 12212, June 29, 1971]



Sec. 5.400   Filing of political propaganda.

    (a) The two copies of each item of political propaganda required to 
be filed with the Attorney General under section 4(a) of the Act shall 
be filed with the Registration Unit.
    (b) Whenever two copies of an item of political propaganda have been 
filed pursuant to section 4(a) of the Act, an agent of a foreign 
principal shall not be required, in the event of further dissemination 
of the same material, to forward additional copies thereof to the 
Registration Unit.
    (c) Unless specifically directed to do so by the Assistant Attorney 
General, a registrant is not required to file two copies of a motion 
picture containing political propaganda which he disseminates on behalf 
of his foreign principal, so long as he files monthly reports on its 
dissemination. In each such case this registrant shall submit to the 
Registration Unit either a film strip showing the label required by 
section 4(b) of the Act or an affidavit certifying that the required 
label has been made a part of the film.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 568-74, 39 FR 18646, May 
29, 1974]



Sec. 5.401   Dissemination report.

    (a) A Dissemination Report shall be filed with the Registration Unit 
for each item of political propaganda that is transmitted, or caused to 
be transmitted, in the U.S. mails, or by any means or instrumentality of 
interstate or foreign commerce, by an agent of a foreign principal for 
or in the interests of any of his foreign principals.
    (b) The Dissemination Report shall be filed on Form OBD-69.
    (c) Except as provided in paragraph (d) of this section, a 
Dissemination Report shall be filed no later than 48 hours after the 
beginning of the transmittal of the political propaganda.
    (d) Whenever transmittals of the same political propaganda are made 
over a period of time, a Dissemination Report may be filed monthly for 
as long as such transmittals continue.
    (e) A Dissemination Report shall be complete in and of itself. 
Incorporation of information by reference to reports previously filed is 
not permissible.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
568-74, 39 FR 18646, May 29, 1974; Order No. 960-81, 46 FR 52355, Oct. 
27, 1981]



Sec. 5.402   Labeling political propaganda.

    (a) Within the meaning of this part, political propaganda shall be 
deemed labeled whenever it has been marked or stamped conspicuously at 
its beginning with a statement setting forth such information as is 
required under section 4(b) of the Act.
    (b) An item of political propaganda which is required to be labeled 
under

[[Page 167]]

section 4(b) of the Act and which is in the form of prints shall be 
marked or stamped conspicuously at the beginning of such item with a 
statement in the language or languages used therein, setting forth such 
information as is required under section 4(b) of the Act.
    (c) An item of political propaganda which is required to be labeled 
under section 4(b) of the Act but which is not in the form of prints 
shall be accompanied by a statement setting forth such information as is 
required under section 4(b) of the Act.
    (d) Political propaganda as defined in section 1(j) of the Act which 
is televised or broadcast, or which is caused to be televised or 
broadcast, by an agent of a foreign principal, shall be introduced by a 
statement which is reasonably adapted to convey to the viewers or 
listeners thereof such information as is required under section 4(b) of 
the Act.
    (e) An agent of a foreign principal who transmits or causes to be 
transmitted in the U.S. mails or by any means or instrumentality of 
interstate or foreign commerce a still or motion picture film which 
contains political propaganda as defined in section 1(j) of the Act 
shall insert at the beginning of such film a statement which is 
reasonably adapted to convey to the viewers thereof such information as 
is required under section 4(b) of the Act.
    (f) For the purpose of section 4(e) of the Act, the statement that 
must preface or accompany political propaganda or a request for 
information shall be in writing.



Sec. 5.500   Maintenance of books and records.

    (a) A registrant shall keep and preserve in accordance with the 
provisions of section 5 of the Act the following books and records:
    (1) All correspondence, memoranda, cables, telegrams, teletype 
messages, and other written communications to and from all foreign 
principals and all other persons, relating to the registrant's 
activities on behalf of, or in the interest of any of his foreign 
principals.
    (2) All correspondence, memoranda, cables, telegrams, teletype 
messages, and other written communications to and from all persons, 
other than foreign principals, relating to the registrant's political 
activity, or relating to political activity on the part of any of the 
registrant's foreign principals.
    (3) Original copies of all written contracts between the registrant 
and any of his foreign principals.
    (4) Records containing the names and addresses of persons to whom 
political propaganda has been transmitted.
    (5) All bookkeeping and other financial records relating to the 
registrant's activities on behalf of any of his foreign principals, 
including canceled checks, bank statements, and records of income and 
disbursements, showing names and addresses of all persons who paid 
moneys to, or received moneys from, the registrant, the specific amounts 
so paid or received, and the date on which each item was paid or 
received.
    (6) If the registrant is a corporation, partnership, association, or 
other combination of individuals, all minute books.
    (7) Such books or records as will disclose the names and addresses 
of all employees and agents of the registrant, including persons no 
longer acting as such employees or agents.
    (8) Such other books, records, and documents as are necessary 
properly to reflect the activities for which registration is required.
    (b) The books and records listed in paragraph (a) of this section 
shall be kept and preserved in such manner as to render them readily 
accessible for inspection pursuant to section 5 of the Act.
    (c) A registrant shall keep and preserve the books and records 
listed in paragraph (a) of this section for a period of 3 years 
following the termination of his registration under Sec. 5.205.
    (d) Upon good and sufficient cause shown in writing to the Assistant 
Attorney General, a registrant may be permitted to destroy books and 
records in support of the information furnished in an initial or 
supplemental statement which he filed 5 or more years prior to the date 
of his application to destroy.

[[Page 168]]



Sec. 5.501   Inspection of books and records.

    Officials of the Criminal Division and the Federal Bureau of 
Investigation are authorized under section 5 of the Act to inspect the 
books and records listed in Sec. 5.500(a).

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973]



Sec. 5.600   Public examination of records.

    Registration statements, Dissemination Reports, and copies of 
political propaganda filed under section 4(a) of the Act, shall be 
available for public examination at the Registration Unit on official 
business days, from 10 a.m. to 4 p.m.



Sec. 5.601  Copies of records and information available.

    (a) Copies of registration statements and supplements, amendments, 
exhibits thereto, dissemination reports, and copies of political 
propaganda and other materials contained in the public files, may be 
obtained from the Registration Unit upon payment of a fee as prescribed 
in Sec. 5.5.
    (b) Information as to the fee to be charged for copies of 
registration statements and supplements, amendments, exhibits thereto, 
dissemination reports, and copies of political propaganda and other 
materials contained in the public files, or research into and 
information therefrom, and the time required for the preparation of such 
documents or information may be obtained upon request to the 
Registration Unit. Fee rates are established in Sec. 5.5.
    (c) The Registration Unit may, in its discretion, conduct computer 
searches of records through the use of existing programming upon written 
request. Information as to the fee for the conduct of such computer 
searches, and the time required to conduct such computer searches, may 
be obtained upon request to the Registration Unit. A written request for 
computer searches of records shall include a deposit in the amount 
specified by the Registration Unit, which shall be the Registration 
Unit's estimate of the actual fees. The Registration Unit is not 
required to alter or develop programming to conduct a search. Fee rates 
are established in Sec. 5.5.

[Order No. 1757-93, 58 FR 37420, July 12, 1993]



Sec. 5.800   Ten-day filing requirement.

    The 10-day filing requirement provided by section 8(g) of the Act 
shall be deemed satisfied if the amendment to the registration statement 
is deposited in the U.S. mails no later than the 10th day of the period.



Sec. 5.801   Activity beyond 10-day period.

    A registrant who has within the 10-day period filed an amendment to 
his registration statement pursuant to a Notice of Deficiency given 
under section 8(g) of the Act may continue to act as an agent of a 
foreign principal beyond this period unless he receives a Notice of 
Noncompliance from the Registration Unit.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973]



Sec. 5.1101  Copies of the Report of the Attorney General.

    Copies of the Report of the Attorney General to the Congress on the 
Administration of the Foreign Agents Registration Act of 1938, as 
amended, shall be sold to the public by the Registration Unit, as 
available, at a charge not less than the actual cost of production and 
distribution.

[Order No. 1757-93, 58 FR 37420, July 12, 1993]



PART 6--TRAFFIC IN CONTRABAND ARTICLES IN FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS--Table of Contents




    Authority: Pub. L. 772, 80th Cong.; 18 U.S.C. 1791.



Sec. 6.1   Consent of warden or superintendent required.

    The introduction or attempt to introduce into or upon the grounds of 
any Federal penal or correctional institution or the taking or attempt 
to take or send therefrom anything whatsoever without the knowledge and 
consent of the warden or superintendent of such Federal penal or 
correctional institution is prohibited.

[13 FR 5660, Sept. 30, 1948]


[[Page 169]]


    Cross Reference: For Organization Statement, Bureau of Prisons, see 
subpart Q of part 0 of this chapter.



PART 7--REWARDS FOR CAPTURE OF ESCAPED FEDERAL PRISONERS--Table of Contents




Sec.
7.1  Standing offer of reward.
7.2  Amount of reward.
7.3  Eligibility for reward.
7.4  Procedure for claiming reward.
7.5  Certification.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3059.

    Source: 25 FR 2420, Mar. 23, 1960, unless otherwise noted.

    Cross Reference: For Organization Statement, Bureau of Prisons, see 
subpart Q of part 0 of this chapter.



Sec. 7.1   Standing offer of reward.

    A standing offer of reward is made for the capture, or for assisting 
in, or furnishing information leading to, the capture, of an escaped 
Federal prisoner, in accordance with the conditions stated in this part.



Sec. 7.2   Amount of reward.

    Within the discretion of the Warden or U.S. Marshal concerned, a 
reward not in excess of $200 may be granted for each capture of a 
prisoner and to more than one claimant, as determined applicable and 
appropriate. The Director of the Bureau of Prisons may in exceptional 
circumstances, as determined by him, grant rewards in excess of $200. 
Bodily harm, damage, violence, intimidation, terrorizing, risks, etc., 
will be considered in determining the appropriate amount of reward.



Sec. 7.3   Eligibility for reward.

    A reward may be paid to any person, except an official or employee 
of the Department of Justice or a law-enforcement officer of the U.S. 
Government, who personally captures and surrenders an escaped Federal 
prisoner to proper officials, or who assists in the capture, of an 
escaped Federal prisoner.



Sec. 7.4   Procedure for claiming reward.

    A person claiming a reward under this part shall present his claim, 
within six months from the date of the capture, in the form of a letter 
to the Warden or U.S. Marshal concerned. The letter shall state fully 
the facts and circumstances on which the claim is based, and shall 
include the name of each escapee captured and the time and place of the 
capture, and details as to how the arrest was made by the claimant or as 
to how assistance was rendered to others who made the arrest.



Sec. 7.5   Certification.

    The claim letter required under Sec. 7.4 shall contain the following 
certification immediately proceeding the signature of the claimant:

    I am not an officer or employee of the Department of Justice or a 
law-enforcement officer of the United States Government.



PART 8--FBI FORFEITURE AUTHORITY FOR CERTAIN STATUTES--Table of Contents




Sec.
8.1  Definition.
8.2  Designation of officials having seizure authority.
8.3  Designation of the investigative bureau having administrative 
          forfeiture authority; claims for awards, offers in compromise 
          and matters relating to bonds.
8.4  Custody of seized property, inventory and receipt.
8.5  Appraisement of property subject to forfeiture.
8.6  Quick-release authority.
8.7  Judicial forfeiture.
8.8  Advertisement and declaration of forfeiture.
8.9  Disposition of forfeited property.
8.10  Remission or mitigation of forfeiture.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510.

    Source: Order No. 1128-86, 51 FR 8818, Mar. 14, 1986, unless 
otherwise noted.



Sec. 8.1  Definition.

    For the purpose of this part, the term statutes shall include the 
following statutes unless otherwise noted in this part: Interstate and 
Foreign Commerce--Gambling Devices--Transportation Prohibited, Jan. 2, 
1951, ch. 1194 section 7, 64 Stat. 1135 (codified at 15 U.S.C. 1177, 
commonly referred to as Transportation of Gambling Devices); Organized 
Crime Control Act of 1970, Public Law 91-452, title VIII, part C, 
section 803(a), 84 Stat. 937 (1970) (codified at 18 U.S.C. 1955, 
commonly referred to as Illegal Gambling Businesses); Copyrights Act, 
Public Law 94-

[[Page 170]]

553, title I, section 101, 90 Stat. 2768 (1976) (codified at 17 U.S.C. 
509); Motor Vehicle Theft Law Enforcement Act of 1984, Public Law 98-
547, title II, section 201, 98 Stat. 2754 (1984) (codified at 18 U.S.C. 
512); Crimes and Criminal Procedure, June 25, 1948, ch. 645, section 1, 
62 Stat. 786 (codified at 18 U.S.C. 1762, commonly referred to as 
Prison-Made Goods); Child Protection Act of 1984, Public Law 98-292, 
section 6, 98 Stat. 205 (1984) (codified at 18 U.S.C. 2254); Omnibus 
Crime Control and Safe Streets Act of 1968, Public Law 90-351, title 
III, section 802, 82 Stat. 215 (1968) (codified at 18 U.S.C. 2513, 
commonly referred to as Wire Interception and Interception of Oral 
Communications); Seizure of Arms and Other Articles Intended for Export, 
June 15, 1917, ch. 30, title VI section 1, 40 Stat, 223; June 17, 1930, 
ch. 497, title IV, 523, 46 Stat. 740; Aug. 13, 1953, ch. 434, section 1, 
67 Stat. 577 (codified at 22 U.S.C. 401, commonly referred to as Illegal 
Exportation of War Materials) ; Anti-Drug Abuse Act of 1986, Public Law 
99-570, sec. 1351-1367 (1986) (codified at 18 U.S.C. 981, commonly 
referred to as Money Laundering Control Act of 1986).

[Order No. 1128-86, 51 FR 8818, Mar. 14, 1986, as amended by Order No. 
1197-87, 52 FR 24448, July 1, 1987]



Sec. 8.2  Designation of officials having seizure authority.

    The Director, Associate Director, Assistants to the Director, 
Assistant Directors, inspectors, and Agents of the Federal Bureau of 
Investigation are authorized to seize such property as may be subject to 
seizure pursuant to statutes identified in Sec. 8.1.



Sec. 8.3  Designation of the investigative bureau having administrative forfeiture authority; claims for awards, offers in compromise and matters relating to 
          bonds.

    The Federal Bureau of Investigation is, in accordance with the 
statutes identified in Sec. 8.1, authorized and designated as the 
investigative bureau to perform various duties with respect to 
forfeiture which are comparable to the duties performed by collectors of 
customs or other persons with respect to the seizure and forfeiture of 
vessels, vehicles, merchandise, and baggage under the customs' laws. The 
Director of the Federal Bureau of Investigation or his designee is 
designated as the officer authorized to take final action under these 
statutes on claims for award of compensation to informers, offers in 
compromise, and matters relating to bonds or other security.



Sec. 8.4  Custody of seized property, inventory and receipt.

    All property seized pursuant to the statutes identified in Sec. 8.1 
shall be turned over to the U.S. Marshals Service when not held as 
evidence or to be placed into official use following forfeiture. An 
inventory shall be prepared by the Federal Bureau of Investigation of 
the seized property and a receipt given for it to the person from whom 
it was seized at the time of seizure or as soon thereafter as practical.



Sec. 8.5  Appraisement of property subject to forfeiture.

    Seized property shall be appraised. The appraisement shall be the 
function of the Special Agent in Charge, Federal Bureau of Investigation 
or his designee having custody of the property. The value of an article 
seized shall be the price at which it or a similar article is fairly 
offered for sale at the time and place of appraisement.



Sec. 8.6  Quick-release authority.

    Where the forfeiture proceedings are administrative, the Special 
Agent in Charge, prior to forfeiture, is authorized to release property 
seized for forfeiture. The property can be quick-released when the 
Special Agent in Charge deems that there is an innocent owner having an 
immediate right to possession of the property or when the release would 
be in the best interest of justice and the Government.



Sec. 8.7  Judicial forfeiture.

    If the appraised value exceeds the monetary amount set forth in 
title 19, United States Code, section 1607, or a claim and satisfactory 
bond have been received either for property appraised at that amount or 
less, or for seized merchandise which is any monetary instrument within 
the meaning of section 5312(a)(3) of title 31 of the United States Code, 
the Special Agent in

[[Page 171]]

Charge of the FBI field office that seized the property shall transmit 
the claim and bond to the U.S. Attorney for the judicial district in 
which the seizure was made for the purpose of instituting judicial 
forfeiture proceedings. Also transmitted with the claim and bond will be 
a description of the property and a complete statement of the facts and 
circumstances leading to the seizure of the property.

[Order No. 1476-91, 56 FR 8685, Mar. 1, 1991]



Sec. 8.8  Advertisement and declaration of forfeiture.

    (a) The notice required by customs laws, section 607, Tariff Act of 
1930, as amended (19 U.S.C. 1607), of seizure and intention to forfeit 
and sell or otherwise dispose of property seized pursuant to the 
statutes identified in Sec. 8.1, shall describe the property seized, 
state the date seized, cause, and place of seizure; and state that any 
person desiring to claim the property must file with the Special Agent 
in Charge, Federal Bureau of Investigation (FBI) within 20 days from the 
date of the first publication of the notice a claim to such property and 
a bond.
    (b) The bond amount shall be $5,000 or ten percent of the value of 
the claimed property whichever is lower, but not less than $250. The 
bond posted to cover costs may be in cash, certified check, or 
satisfactory sureties. When the claim and bond are received by the 
Special Agent in Charge, he shall, after finding the documents in proper 
form and the sureties satisfactory, transmit the documents, together 
with a description of the property and a complete statement of the facts 
and circumstrances surrounding the seizure, to the U.S. Attorney for the 
judicial district in which the seizure was made for purpose of 
proceeding to forfeiture of the property in a manner prescribed by law. 
If the documents are not in satisfactory condition when first received, 
a reasonable time for correction may be allowed. If correction is not 
made within a reasonable time, the documents may be treated as nugatory, 
and the administrative forfeiture shall proceed as though they had not 
been tendered. The filing of the claim and the posting of the bond does 
not entitle the claimant to possession of the property, however, it does 
stop the administrative forfeiture proceeding.
    (c) The notice for administrative forfeiture proceedings shall be 
published once each week for at least three successive weeks in a 
newspaper of general circulation in the judicial district in which the 
property was seized. If a claim is not made within the time period, the 
FBI Property Management Officer shall declare the property forfeited.

Order No. 1128-86, 51 FR 8818, Mar. 14, 1986, as amended by Order No. 
1197-87, 52 FR 24448, July 1, 1987; Order No. 1476-91, 56 FR 8687, Mar. 
1, 1991]



Sec. 8.9  Disposition of forfeited property.

    (a) If the laws of a state in which an article of forfeited property 
is located prohibit the sale of such property or if the U.S. Marshals 
Service is of the opinion that it would be more advantageous to sell the 
forfeited property in another district, the property may be moved to and 
sold in such other district as the U.S. Marshals Service may direct.
    (b) If, after the administrative forfeiture of property is 
completed, it appears that the proceeds of sale will not be sufficient 
to pay the costs of sale or the proceeds will be insignificant in 
relation to the expenses involved in the forfeiture, the U.S. Marshals 
Service may order the destruction of the property. Similarly, property 
forfeited under a decree of a court may be destroyed in accordance with 
section 611, Tariff Act of 1930 (19 U.S.C. 1611). Also, if the sale or 
use of any article is prohibited under any law of the United States or 
the state where it is stored, the U.S. Marshals Service may order it 
destroyed or cause alteration of the property into an article that is 
not prohibited.
    (c) If arms and munitions are forfeited pursuant to 22 U.S.C. 
401(c), the Secretary of Defense should be contacted to determine if he 
desires this property.



Sec. 8.10  Remission or mitigation of forfeiture.

    (a) Any person claiming a legal or equitable interest in any 
property which has been forfeited pursuant to statutes

[[Page 172]]

identified in Sec. 8.1, may file, in accordance with the provisions of 
28 CFR part 9, a petition for remission or mitigation of the forfeiture 
or a petition for restoration of the proceeds of sale or for value of 
the property placed in official use. If the foreiture proceedings are 
administrative, the petition shall be addressed to the Director of the 
FBI and shall be filed in triplicate with the Special Agent in Charge of 
the FBI field office that seized the property. It must be executed and 
sworn to by the person alleging interest in the property. If the 
forfeiture proceedings are judicial, the petition shall be addressed to 
the Attorney General of the United States and filed in triplicate with 
the Special Agent in Charge of the FBI field office that seized the 
property. The petition for a judicial forfeiture shall be sworn to by 
the petitioner, or by his or her counsel upon information and belief.
    (b) The petition shall include the following:
    (1) A complete description of the property, including model and 
serial numbers, if any, and the date and place of seizure;
    (2) The petitioner's interest in the property, which shall be 
supported by bills of sale, contracts, mortgages, or other satisfactory 
documentary evidence; and,
    (3) The facts and circumstances, established by satisfactory proof, 
relied upon by the petitioner to justify remission or mitigation of the 
forfeiture. For further information regarding the content of a petition, 
see 28 CFR 9.5.
    (c) Where the petition is for restoration of the proceeds of sale, 
or for value of the property placed in official use, it must be 
supported by satisfactory proof that the petitioner did not know of the 
seizure prior to the declaration of forfeiture and was in such 
circumstances as prevented petitioner from knowing of the same.
    (d) A petition for remission or mitigation of forfeiture should be 
filed within 30 days of the receipt of the notice of seizure. Once 
forfeited property is disposed of, a petition for remission or 
mitigation of forfeiture will no longer be accepted. A petition for 
restoration of proceeds of sale or for value of the property placed in 
official use must be filed within 90 days of the sale of the property, 
or within 90 days of the date the property is placed in official use.
    (e) Upon receipt of a petition, an appropriate investigation shall 
be conducted by the FBI. No hearing shall be held. For administrative 
forfeitures, the petition and the results of the petition investigation 
shall be forwarded to the Legal Counsel Division, FBI. Final decisions 
on petitions for property forfeited administratively shall be made by 
the Assistant Director, Legal Counsel, FBI or his designee within the 
Legal Counsel Division, FBI. For judicial forfeitures, the petition and 
the results of the petition investigation shall be forwarded to the U.S. 
Attorney who prosecuted the property. The U.S. Attorney shall forward 
the petition and the results of the investigation together with a 
recommendation as to allowance or denial of the petition to the 
Assistant Attorney General, Criminal Division. The matter shall be 
assigned to the Asset Forfeiture Office who shall either grant the 
petition by remission or mitigation of the forfeiture or shall deny it.
    (f) A request for reconsideration of the denial of the petition for 
an administrative forfeiture must be submitted within 10 days from 
receipt of the letter denying the petition. Such request shall be 
addressed to the Director of the FBI for referral to the FBI Legal 
Counsel Division and shall be based on evidence recently developed or 
not previously considered. Only one request for reconsideration of a 
denial of a petition shall be considered. For further information 
regarding petitions see 28 CFR part 9.



PART 9--REGULATIONS GOVERNING THE REMISSION OR MITIGATION OF CIVIL AND CRIMINAL FORFEITURES--Table of Contents




Sec.
9.1  Authority, purpose, and scope.
9.2  Definitions.
9.3  Petitions in administrative forfeiture cases.
9.4  Petitions in judicial forfeiture cases.
9.5  Criteria governing administrative and judicial remission and 
          mitigation.
9.6  Special rules for specific petitioners.

[[Page 173]]

9.7  Terms and conditions of remission and mitigation.
9.8  Provisions applicable to victims.
9.9  Miscellaneous provisions.

    Authority: 28 U.S.C. 509, 510, 515-518, 524; 8 U.S.C. 1324; 15 
U.S.C. 1177; 17 U.S.C. 509; 18 U.S.C. 512, 981, 982, 1467, 1955, 1963, 
2253, 2254, 2513; 19 U.S.C. 1613, 1618; 21 U.S.C. 853, 881; 22 U.S.C. 
401.

    Source: Order No. 2064-96, 62 FR 316, Jan. 3, 1997, unless otherwise 
noted.



Sec. 9.1  Authority, purpose, and scope.

    (a) Purpose. This part sets forth the procedures for agency 
officials to follow when considering remission or mitigation of 
administrative forfeitures under the jurisdiction of the agency, and 
civil judicial and criminal judicial forfeitures under the jurisdiction 
of the Criminal Division. The purpose of the regulations in this part is 
to provide a basis for ameliorating the effects of forfeiture through 
the partial or total remission of forfeiture for individuals who have an 
interest in the forfeited property but who did not participate in, or 
have knowledge of, the conduct that resulted in the property being 
subject to forfeiture and, where required, took all reasonable steps 
under the circumstances to ensure that such property would not be used, 
acquired, or disposed of contrary to law. Additionally, the regulations 
provide for partial or total mitigation of the forfeiture and imposition 
of alternative conditions in appropriate circumstances.
    (b) Authority to grant remission and mitigation. (1) Remission and 
mitigation functions in administrative forfeitures are performed by the 
agency seizing the property. Within the Federal Bureau of Investigation, 
authority to grant remission and mitigation is delegated to the 
Forfeiture Counsel, who is the Unit Chief, Legal Forfeiture Unit, Office 
of the General Counsel; within the Drug Enforcement Administration, 
authority to grant remission and mitigation is delegated to the 
Forfeiture Counsel, Office of Chief Counsel; and within the Immigration 
and Naturalization Service, authority to grant remission and mitigation 
is delegated to the INS Regional Directors.
    (2) Remission and mitigation functions in judicial cases are 
performed by the Criminal Division of the Department of Justice. Within 
the Criminal Division, authority to grant remission and mitigation is 
delegated to the Chief, Asset Forfeiture and Money Laundering Section, 
Criminal Division.
    (3) The powers and responsibilities delegated by these regulations 
in this part may be redelegated to attorneys or managers working under 
the supervision of the designated officials.
    (c) The time periods and internal requirements established in this 
part are designed to guide the orderly administration of the remission 
and mitigation process and are not intended to create rights or 
entitlements in favor of individuals seeking remission or mitigation. 
The regulations will apply to all decisions on petitions for remission 
or mitigation made on or after February 3, 1997. The regulations will 
apply to decisions on requests for reconsideration of a denial of a 
petition under Secs. 9.3(j) and 9.4(k) only if the initial decision on 
the petition was made under the provisions of this part effective on 
February 3, 1997.
    (d) This part governs any petition for remission filed with the 
Attorney General and supersedes any Department of Justice regulation 
governing petitions for remission, to the extent such regulation is 
inconsistent with this part. In particular, this part supersedes the 
provisions of 21 CFR 1316.79 and 1316.80, which contain remission and 
mitigation procedures for property seized for narcotics violations. The 
provisions of 8 CFR 274.13 through 274.19 and 28 CFR 8.10, which concern 
non-drug related forfeitures, are also superseded by this part where 
those regulations relate to remission and mitigation.



Sec. 9.2  Definitions.

    As used in this part:
    (a) The term administrative forfeiture means the process by which 
property may be forfeited by an investigative agency rather than through 
judicial proceedings.
    (b) The term appraised value means the estimated market value of an 
asset at the time and place of seizure if such or similar property was 
freely offered for sale between a willing seller and a willing buyer.

[[Page 174]]

    (c) The term Assets Forfeiture Fund means the Department of Justice 
Assets Forfeiture Fund or Department of the Treasury Asset Forfeiture 
Fund, depending upon the identity of the seizing agency.
    (d) The term Attorney General means the Attorney General of the 
United States or his or her designee.
    (e) The term beneficial owner means a person with actual use of, as 
well as an interest in, the property subject to forfeiture.
    (f) The terms Chief, Asset Forfeiture and Money Laundering Section, 
and Chief, refer to the Chief of the Asset Forfeiture and Money 
Laundering Section, Criminal Division, United States Department of 
Justice.
    (g) The term general creditor means one whose claim or debt is not 
secured by a specific right to obtain satisfaction against the 
particular property subject to forfeiture.
    (h) The term judgment creditor means one who has obtained a judgment 
against the debtor but has not yet received full satisfaction of the 
judgment.
    (i) The term judicial forfeiture means either a civil or a criminal 
proceeding in a United States District Court that may result in a final 
judgment and order of forfeiture.
    (j) The term lienholder means a creditor whose claim or debt is 
secured by a specific right to obtain satisfaction against the 
particular property subject to forfeiture. A lien creditor qualifies as 
a lienholder if the lien:
    (1) Was established by operation of law or contract;
    (2) Was created as a result of an exchange of money, goods, or 
services; and
    (3) Is perfected against the specific property forfeited for which 
remission or mitigation is sought (e.g., a real estate mortgage; a 
mechanic's lien).
    (k) The term net equity means the amount of a lienholder's monetary 
interest in property subject to forfeiture. Net equity shall be computed 
by determining the amount of unpaid principal and unpaid interest at the 
time of seizure, and by adding to that sum unpaid interest calculated 
from the date of seizure through the last full month prior to the date 
of the decision on the petition. Where a rate of interest is set forth 
in a security agreement, the rate of interest to be used in this 
computation will be the annual percentage rate so specified in the 
security agreement that is the basis of the lienholder's interest. In 
this computation, however, there shall be no allowances for attorneys' 
fees, accelerated or enhanced interest charges, amounts set by contract 
as damages, unearned extended warranty fees, insurance, service contract 
charges incurred after the date of seizure, allowances for dealer's 
reserve, or any other similar charges.
    (l) The term owner means the person in whom primary title is vested 
or whose interest is manifested by the actual and beneficial use of the 
property, even though the title is vested in another. A victim of an 
offense, as defined in paragraph (v) of this section, may also be an 
owner if he or she has a present legally cognizable ownership interest 
in the property forfeited. A nominal owner of property will not be 
treated as its true owner if he or she is not its beneficial owner.
    (m) The term person means an individual, partnership, corporation, 
joint business enterprise, estate, or other legal entity capable of 
owning property.
    (n) The term petition means a petition for remission or mitigation 
of forfeiture under the regulations in this part. This definition 
includes a petition for restoration of the proceeds of sale of forfeited 
property and a petition for the value of forfeited property placed into 
official use.
    (o) The term petitioner means the person applying for remission, 
mitigation, restoration of the proceeds of sale, or for the appraised 
value of forfeited property, under the regulations in this part. A 
petitioner may be an owner as defined in Sec. 9.2(l), a lienholder as 
defined in Sec. 9.2(j), or a victim as defined in Sec. 9.2(v), subject 
to the limitations of Sec. 9.8.
    (p) The term property means real or personal property of any kind 
capable of being owned or possessed.
    (q) The term record means a series of arrests for related crimes, 
unless the arrestee was acquitted or the charges were dismissed for lack 
of evidence; a

[[Page 175]]

conviction for a related crime or completion of sentence within ten 
years of the acquisition of the property subject to forfeiture; or two 
convictions for a related crime at any time in the past.
    (r) The term related crime as used in Sec. 9.2(q) and Sec. 9.6(e) 
means any crime similar in nature to that which gives rise to the 
seizure of property for forfeiture. For example, where property is 
seized for a violation of the federal laws relating to drugs, a related 
crime would be any offense involving a violation of the federal laws 
relating to drugs or the laws of any state or political subdivision 
thereof relating to drugs.
    (s) The term related offense as used in Sec. 9.8 means:
    (1) Any predicate offense charged in a Federal Racketeer Influenced 
and Corrupt Organizations Act (RICO) count for which forfeiture was 
ordered; or
    (2) An offense committed as part of the same scheme or design, or 
pursuant to the same conspiracy, as was involved in the offense for 
which forfeiture was ordered.
    (t) The term Ruling Official means any official to whom decision 
making authority has been delegated pursuant to Sec. 9.1(b).
    (u) The term seizing agency means the federal agency that seized the 
property or adopted the seizure of another agency for federal 
forfeiture.
    (v) The term victim means a person who has incurred a pecuniary loss 
as a direct result of the commission of the offense underlying a 
forfeiture. A drug user is not considered a victim of a drug trafficking 
offense under this definition. A victim does not include one who 
acquires a right to sue the perpetrator of the criminal offense for any 
loss by assignment, subrogation inheritance, or otherwise form the 
actual victim, unless that person has acquired an actual ownership 
interest in the forfeited property.
    (w) The term violator means the person whose use or acquisition of 
the property in violation of the law subjected such property to seizure 
for forfeiture.



Sec. 9.3  Petitions in administrative forfeiture cases.

    (a) Notice of seizure. The notice of seizure and intent to forfeit 
the property shall advise any persons who may have a present ownership 
interest in the property to submit their petitions for remission or 
mitigation within thirty (30) days of the date they receive the notice 
in order to facilitate processing. Petitions shall be considered any 
time after notice until the forfeited property is placed into official 
use, sold, or otherwise disposed of according to law, except in cases 
involving petitions to restore the proceeds from the sale of forfeited 
property. A notice of seizure shall include the title of the seizing 
agency, the Ruling Official, the mailing and street address of the 
official to whom petitions should be sent, and an asset identifier 
number.
    (b) Persons who may file. A petition for remission or mitigation 
must be filed by a petitioner as defined in Sec. 9.2(o) or as prescribed 
in Secs. 9.9(g) and (h).
    (c) Contents of petition. (1) All petitions must include the 
following information in clear and concise terms:
    (i) The name, address, and social security or other taxpayer 
identification number of the person claiming an interest in the seized 
property who is seeking remission or mitigation;
    (ii) The name of the seizing agency, the asset identifier number, 
and the date and place of seizure;
    (iii) A complete description of the property, including make, model, 
and serial numbers, if any; and
    (iv) A description of the petitioner's interest in the property as 
owner, lienholder, or otherwise, supported by original or certified 
bills of sale, contracts, deeds, mortgages, or other documentary 
evidence.
    (2) Any factual recitation or documentation of any type in a 
petition must be supported by a sworn affidavit.
    (d) Releases. In addition to the contents of the petition for 
remission or mitigation set forth in paragraph (c) of this section, upon 
request, the petitioner shall also furnish the agency with an instrument 
executed by the titled or registered owner and any other known claimant 
of an interest in the

[[Page 176]]

property releasing interest in such property.
    (e) Filing petition with agency. (1) A petition for remission or 
mitigation subject to administrative forfeiture shall be addressed to 
the appropriate federal agency as follows:
    (i) Drug Enforcement Administration, Office of Chief Counsel, Street 
Address: 700 Army Navy Drive, Arlington, VA 22202
    Mailing Address: P.O. Box 28356, Washington, D.C. 20038.
    (ii) Federal Bureau of Investigation, Special Agent in Charge, Field 
Office that seized the property.
    (iii) Immigration and Naturalization Service District Director, 
Chief Patrol Agent, or Regional Asset Forfeiture Office at location with 
jurisdiction over the forfeiture proceeding.
    (2) The petition is to be sent to the official address provided in 
the notice of seizure and shall be sworn to by the petitioner or by the 
petitioner's attorney upon information and belief, supported by the 
client's sworn notice of representation pursuant to 28 U.S.C. 1746, as 
set out in Sec. 9.9(g). The Chief of the Asset Forfeiture and Money 
Laundering Section is delegated authority to amend the address of the 
official to whom petitions may be sent from time to time, as necessary, 
by publishing notice of the change of address in the Federal Register. 
Failure to publish a notice of change of address in the Federal Register 
shall not alter the authority of the Ruling Official to determine 
petitions for remission or mitigation nor the obligation of a petitioner 
to file a petition at the address provided in the notice of seizure. 
Failure to publish a notice of change of address in the Federal Register 
shall not be grounds for expanding the time for filing a petition for 
remission or mitigation under the regulations in this part.
    (f) Agency investigation. Upon receipt of a petition, the seizing 
agency shall investigate the merits of the petition and prepare a 
written report containing the results of that investigation. This report 
shall be submitted to the Ruling Official for review and consideration.
    (g) Ruling. Upon receipt of the petition and the agency report, the 
Ruling Official for the seizing agency shall review the petition and the 
report, and shall rule on the merits of the petition. No hearing shall 
be held.
    (h) Petitions granted. If the Ruling Official grants a remission or 
mitigation of the forfeiture, a copy of the decision shall be mailed to 
the petitioner or, if represented by an attorney, to the petitioner's 
attorney. A copy shall also be sent to the United States Marshals 
Service or other property custodian. The written decision shall include 
the terms and conditions, if any, upon which the remission or mitigation 
is granted and the procedures the petitioner must follow to obtain 
release of the property or the monetary interest therein.
    (i) Petitions denied. If the Ruling Official denies a petition, a 
copy of the decision shall be mailed to the petitioner or, if 
represented by an attorney, to the petitioner's attorney of record. A 
copy of the decision shall also be sent to the United States Marshals 
Service or other property custodian. The decision shall specify the 
reason that the petition was denied. The decision shall advise the 
petitioner that a request for reconsideration of the denial of the 
petition may be submitted to the Ruling Official in accordance with 
paragraph (j) of this section.
    (j) Request for reconsideration. (1) A request for reconsideration 
of the denial of the petition shall be considered if:
    (i) It is postmarked or received by the office of the Ruling 
Official within ten (10) days from the receipt of the notice of denial 
of the petition by the petitioner; and
    (ii) The request is based on information or evidence not previously 
considered that is material to the basis for the denial or presents a 
basis clearly demonstrating that the denial was erroneous.
    (2) In no event shall a request for reconsideration be decided by 
the same Ruling Official who ruled on the original petition.
    (3) Only one request for reconsideration of a denial of a petition 
shall be considered.
    (k) Restoration of proceeds from sale. (1) A petition for 
restoration of the proceeds from the sale of forfeited property, or for 
the appraised value of

[[Page 177]]

forfeited property when the forfeited property has been retained by or 
delivered to a government agency for official use, may be submitted by 
an owner or leinholder in cases in which the petitioner:
    (i) Did not know of the seizure prior to the entry of a declaration 
of forfeiture; and
    (ii) Could not reasonably have known of the seizure prior to the 
entry of a declaration of forfeiture.
    (2) Such a petition shall be submitted pursuant to paragraphs (b) 
through (e) of this section within ninety (90) days of the date the 
property is sold or otherwise disposed of.



Sec. 9.4  Petitions in judicial forfeiture cases.

    (a) Notice of seizure. The notice of seizure and intent to forfeit 
the property shall advise any persons who may have a present ownership 
interest in the property to submit their petitions for remission or 
mitigation within thirty (30) days of the date they receive the notice 
in order to facilitate processing. Petitions shall be considered any 
time after notice until such time as the forfeited property is placed in 
official use, sold, or otherwise disposed of according to law, except in 
cases involving petitions to restore property. A notice of seizure shall 
include the title of the Ruling Official and the mailing and street 
address of the official to whom petitions should be sent, the name of 
the agency seizing the property, an asset identifier number, and the 
district court docket number.
    (b) Persons who may file. A petition for remission or mitigation 
must be filed by a petitioner as defined in Sec. 9.2(o) or as prescribed 
in Sec. Sec. 9.9 (g) and (h).
    (c) Contents of petition. (1) All petitions must include the 
following information in clear and concise terms:
    (i) The name, address, and social security or other taxpayer 
identification number of the person claiming an interest in the seized 
property who is seeking remission or mitigation;
    (ii) The name of the seizing agency, the asset identifier number, 
and the date and place of seizure;
    (iii) The district court docket number;
    (iv) A complete description of the property, including the address 
or legal description of real property, and make, model, and serial 
numbers of personal property, if any; and
    (v) A description of the petitioner's interest in the property as 
owner, lienholder, or otherwise, supported by original or certified 
bills of sale, contracts, mortgages, deeds, or other documentary 
evidence.
    (2) Any factual recitation or documentation of any type in a 
petition must be supported by a sworn affidavit.
    (d) Releases. In addition to the content of the petition for 
remission or mitigation set forth in paragraph (c) of this section, the 
petitioner, upon request, also shall furnish the agency with an 
instrument executed by the titled or registered owner and any other 
known claimant of an interest in the property releasing the interest in 
such property.
    (e) Filing petition with Department of Justice. A petition for 
remission or mitigation of a judicial forfeiture shall be addressed to 
the Attorney General; shall be sworn to by the petitioner or by the 
petitioner's attorney upon information and belief, supported by the 
client's sworn notice of representation pursuant to 28 U.S.C. 1746, as 
set forth in Sec. 9.9(g); and shall be submitted to the United States 
Attorney for the district in which the judicial forfeiture proceedings 
are brought. A petitioner also shall submit a copy of the petition to 
the seizing agency in the judicial district in which the seizure 
occurred as specified in the notice of seizure, except in Drug 
Enforcement Administration cases, where the copy shall be submitted to 
Drug Enforcement Administration Headquarters, Office of Chief Counsel, 
P.O. Box 28356, Washington, D.C. 20038, or 700 Army Navy Drive, 
Arlington, VA 22202.
    (f) Agency investigation and recommendation; United States 
Attorney's recommendation. Upon receipt of a petition, the United States 
Attorney shall direct the seizing agency to investigate the merits of 
the petition based on the information provided by the petitioner and the 
totality of the agency's investigation of the underlying basis for 
forfeiture. The agency shall submit to the United States Attorney a 
report of its

[[Page 178]]

investigation and its recommendation on whether the petition should be 
granted or denied. Upon receipt of the agency's report and 
recommendation, the United States Attorney shall forward to the Chief, 
Asset Forfeiture and Money Laundering Section, the petition, the seizing 
agency's report and recommendation, and the United States Attorney's 
recommendation on whether the petition should be granted or denied.
    (g) Ruling. The Chief shall rule on the petition. No hearing shall 
be held. The Chief shall not rule on any petition in any case in which 
similar petition has been administratively denied by the seizing agency 
prior to the referral of the case to the United States Attorney for the 
institution of forfeiture proceedings.
    (h) Petitons under Internal Revenue Service liquor laws. The Chief 
shall accept and consider petitions submitted in judicial forfeiture 
proceedings under the Internal Revenue Service liquor laws only prior to 
the time a decree of forfeiture is entered. Thereafter, district courts 
have exclusive jurisdiction.
    (i) Petitions granted. If the Chief grants a remission or mitigates 
the forfeiture, the Chief shall mail a copy of the decision to the 
petitioner or, if represented by an attorney, to the petitioner's 
attorney, the appropriate United States Attorney, the United States 
Marshals Service or other property custodian, and the appropriate 
seizing agency. The written decision shall include the terms and 
conditions, if any, upon which the remission or mitigation is granted 
and the procedures the petitioner must follow to obtain release of the 
property or the monetary interest therein. The Chief shall advise the 
petitioner or the petitioner's attorney to consult with the United 
States Attorney as to such terms and conditions. The United States 
Attorney shall confer with the seizing agency regarding the release and 
shall coordinate disposition of the property with that office and the 
United States Marshals Service or other property custodian.
    (j) Petitions denied. If the Chief denies a petition, a copy of that 
decision shall be mailed to the petitioner, or if represented by an 
attorney, to the petitioner's attorney of record, to the appropriate 
United States Attorney, the United States Marshals Service or other 
property custodian, and to the appropriate seizing agency. The decision 
shall specify the reason that the petition was denied. The decision 
shall advise the petitioner that a request for reconsideration of the 
denial of the petition may be submitted to the Chief at the address 
provided in the decision, in accordance with paragraph (k) of this 
section.
    (k) Request for reconsideration. (1) A request for reconsideration 
of the denial shall be considered if:
    (i) It is postmarked or received by the Asset Forfeiture and Money 
Laundering Section at the address contained in the decision denying the 
petition within ten (10) days from the receipt of the notice of denial 
of the petition by the petitioner; and
    (ii) The request is based on information or evidence not previously 
considered that is material to the basis for the denial or presents a 
basis clearly demonstrating that the denial was erroneous. A copy of the 
request must be received by the appropriate United States Attorney 
within ten (10) days of the receipt of the denial by the petitioner.
    (2) In no event shall a request for reconsideration be decided by 
the Ruling Official who ruled on the original petition.
    (3) Only one request for reconsideration of a denial of a petition 
shall be considered.
    (4) Upon receipt of the request for reconsideration of the denial of 
a petition, disposition of the property will be delayed pending notice 
of the decision at the request of the Chief. If the United States 
Attorney does not receive a copy of the request for reconsideration 
within the prescribed period, the deposition of the property may 
proceed.
    (l) Restoration of proceeds from sale. (1) A petition for 
restoration of the proceeds from the sale of forfeited property, or for 
the appraised value of forfeited property when the forfeited property 
has been retained by or delivered to a government agency for official 
use, may be submitted by an owner or

[[Page 179]]

lienholder in cases in which the petitioner:
    (i) Did not know of the seizure prior to the entry of a final order 
of forfeiture; and
    (ii) Could not reasonably have known of the seizure prior to the 
entry of a final order of forfeiture.
    (2) Such a petition must be submitted pursuant to paragraphs (b) 
through (e) of this section within ninety (90) days of the date the 
property was sold or otherwise disposed of.



Sec. 9.5  Criteria governing administrative and judicial remission and mitigation.

    (a) Remission. (1) The Ruling Official shall not grant remission of 
a forfeiture unless the petitioner establishes that:
    (i) The petitioner has a valid, good faith, and legally cognizable 
interest in the seized property as owner or lienholder as defined in 
this part; and
    (ii) The petitioner is innocent within the meaning of the innocent 
owner provisions of the applicable civil forfeiture statute, is a bona 
fide purchaser for value without cause to believe that the property was 
subject to forfeiture at the time of the purchase, or is one who held a 
legally cognizable interest in the seized property at the time of the 
violation underlying the forfeiture superior to that of the defendant 
within the meaning of the applicable criminal forfeiture statute, and is 
thereby entitled to recover his or her interest in the forfeited 
property by statute. (If the applicable civil forfeiture statute 
contains no innocent owner defense, the innocent owner provisions 
applicable to 21 U.S.C. 881(a)(4) shall apply.) Unless otherwise 
provided by statute, in the case of petitioners who acquired their 
interest in the property after the time of the violation underlying the 
forfeiture, the question of whether the petitioner had knowledge of the 
violation shall be determined as of the point in time when the interest 
in the property was acquired.
    (2) The knowledge and responsibilities of petitioner's 
representative, agent, or employee in paragraph (a)(1)(ii) of this 
section are imputed to the petitioner where the representative, agent, 
or employee was acting in the course of his or her employment and in 
furtherance of the petitioner's business.
    (3) The petitioner has the burden of establishing the basis for 
granting a petition for remission or mitigation of forfeited property, a 
restoration of proceeds of sale or appraised value of forfeited 
property, or a reconsideration of a denial of such a petition. Failure 
to provide information or documents and to submit to interviews, as 
requested, may result in a denial of the petition.
    (4) The Ruling Official shall presume a valid forfeiture and shall 
not consider whether the evidence is sufficient to support the 
forfeiture.
    (5) Willful, materially-false statements or information, made or 
furnished by the petitioner in support of a petition for remission or 
mitigation of forfeited property, the restoration of proceeds or 
appraised value of forfeited property, or the reconsideration of a 
denial of any such petition, shall be grounds for denial of such 
petition and possible prosecution for the filing of false statements.
    (b) Mitigation. (1) The Ruling Official may grant mitigation to a 
party not involved in the commission of the offense underlying 
forfeiture:
    (i) Where the petitioner has not met the minimum conditions for 
remission, but the Ruling Official finds that some relief should be 
granted to avoid extreme hardship, and that return of the property 
combined with imposition of monetary and/or other conditions of 
mitigation in lieu of a complete forfeiture will promote the interest of 
justice and will not diminish the deterrent effect of the law. 
Extenuating circumstances justifying such a finding include those 
circumstances that reduce the responsibility of the petitioner for 
knowledge of the illegal activity, knowledge of the criminal record of a 
user of the property, or failure to take reasonable steps to prevent the 
illegal use or acquisition by another for some reason, such as a 
reasonable fear of reprisal; or
    (ii) Where the minimum standards for remission have been satisfied 
but the overall circumstances are such that, in the opinion of the 
Ruling Official, complete relief is not warranted.

[[Page 180]]

    (2) The Ruling Officials may in his or her discretion grant 
mitigation to a party involved in the commission of the offense 
underlying the forfeiture where certain mitigating factors exist, 
including, but not limited to: the lack of a prior record or evidence of 
similar criminal conduct; if the violation does not include drug 
distribution, manufacturing, or importation, the fact that the violator 
has taken steps, such as drug treatment, to prevent further criminal 
conduct; the fact that the violation was minimal and was not part of a 
larger criminal scheme; the fact that the violator has cooperated with 
federal, state, or local investigations relating to the criminal conduct 
underlying the forfeiture; or the fact that complete forfeiture of an 
asset is not necessary to achieve the legitimate purposes of forfeiture.
    (3) Mitigation may take the form of a monetary condition or the 
imposition of other conditions relating to the continued use of the 
property, and the return of the property, in addition to the imposition 
of any other costs that would be chargeable as a condition to remission. 
This monetary condition is considered as an item of cost payable by the 
petitioner, and shall be deposited into the Assets Forfeiture Fund as an 
amount realized from forfeiture in accordance with the applicable 
statute. If the petitioner fails to accept the Ruling Official's 
mitigation decision or any of its conditions, or fails to pay the 
monetary amount within twenty (20) days of the receipt of the decision, 
the property shall be sold, and the monetary amount imposed and other 
costs chargeable as a condition to mitigation shall be subtracted from 
the proceeds of the sale before transmitting the remainder to the 
petitioner.



Sec. 9.6  Special rules for specific petitioners.

    (a) General creditors. A general creditor may not be granted 
remission or mitigation of forfeiture unless he or she otherwise 
qualifies as petitioner under this part.
    (b) Rival claimants. If the beneficial owner of the forfeited 
property and the owner of a security interest in the same property each 
files a petition, and if both petitions are found to be meritorious, the 
claims of the beneficial owner shall take precedence.
    (c) Voluntary bailments. A petitioner who allows another to use his 
or her property without cost, and who is not in the business of lending 
money secured by property or of leasing or renting property for profit, 
shall be granted remission or mitigation of forfeiture in accordance 
with the provisions of Sec. 9.5.
    (d) Lessors. A person engaged in the business of leasing or renting 
real or personal property on a long-term basis with the right to 
sublease shall not be entitled to remission or mitigation of a 
forfeiture of such property unless the lessor can demonstrate compliance 
with all the requirements of Sec. 9.5.
    (e) Straw owners. A petition by any person who has acquired a 
property interest recognizable under this part, and who knew or had 
reason to believe that the interest was conveyed by the previous owner 
for the purpose of circumventing seizure, forfeiture, or the regulations 
in this part, shall be denied. A petition by a person who purchases or 
owns property for another who has a record for related crimes as defined 
in Sec. 9.2(r), or a petition by a lienholder who knows or has reason to 
believe that the purchaser or owner of record is not the real purchaser 
or owner, shall be denied unless both the purchaser of record and the 
real purchaser or owner meet the requirements of Sec. 9.5.
    (f) Judgment creditors. (1) A judgment creditor will be recognized 
as a lienholder if:
    (i) The judgment was duly recorded before the seizure of the 
property for forfeiture;
    (ii) Under applicable state or other local law, the judgment 
constitutes a valid lien on the property that attached to it before the 
seizure of the property for forfeiture; and
    (iii) The petitioner had no knowledge of the commission of any act 
or acts giving rise to the forfeiture at the time the judgment became a 
lien on the forfeited property.
    (2) A judgment creditor will not be recognized as a lienholder if 
the property in question is not property of which the judgment debtor is 
entitled to claim ownership under applicable state or other local law 
(e.g., stolen

[[Page 181]]

property). A judgment creditor is entitled under this part to no more 
than the amount of the judgment, exclusive of any interest, costs, or 
other fees including attorney's fees associated with the action that led 
to the judgment or its collection.
    (3) A judgment creditor's lien must be registered in the district 
where the property is located if the judgment was obtained outside the 
district.



Sec. 9.7  Terms and conditions of remission and mitigation.

    (a) Owners. (1) An owner's interest in property that has been 
forfeited is represented by the property itself or by a monetary 
interest equivalent to that interest at the time of seizure. Whether the 
property or a monetary equivalent will be remitted to an owner shall be 
determined at the discretion of the Ruling Official.
    (2) If a civil judicial forfeiture action against the property is 
pending, release of the property must await an appropriate court order.
    (3) Where the government sells or disposes of the property prior to 
the grant of the remission, the owner shall receive the proceeds of that 
sale, less any costs incurred by the government in the sale. The Ruling 
Official, at his or her discretion, may waive the deduction of costs and 
expenses incident to the forfeiture.
    (4) Where the owner does not comply with the conditions imposed upon 
release of the property by the Ruling Official, the property shall be 
sold. Following the sale, the proceeds shall be used to pay all costs of 
the forfeiture and disposition of the property, in addition to any 
monetary conditions imposed. The remaining balance shall be paid to the 
owner.
    (b) Lienholders. (1) When the forfeited property is to be retained 
for official use or transferred to a state or local law enforcement 
agency or foreign government pursuant to law, and remission or 
mitigation has been granted to a lienholder, the recipient of the 
property shall assure that:
    (i) In the case of remission, the lien is satisfied as determined 
through the petition process; or
    (ii) In the case of mitigation, an amount equal to the net equity, 
less any monetary conditions imposed, is paid to the lienholder prior to 
the release of the property to the recipient agency of foreign 
government.
    (2) When the forfeited property is not retained for official use or 
transferred to another agency or foreign government pursuant to law, the 
lienholder shall be notified by the Ruling Official of the right to 
select either of the following alternatives:
    (i) Return of property. The lienholder may obtain possession of the 
property after paying the United States, through the Ruling Official, 
the costs and expenses incident to the forfeiture, the amount, if any, 
by which the appraised value of the property exceeds the lienholder's 
net equity in the property, and any amount specified in the Ruling 
Official's decision as a condition to remit the property. The Ruling 
Official, at his or her discretion, may waive costs and expenses 
incident to the forfeiture. The Ruling Official shall forward a copy of 
the decision, a memorandum of disposition, and the original releases to 
the United States Marshals Service or other property custodian who shall 
thereafter release the property to the lienholder; or
    (ii) Sale of property and payment to lienholder. Subject to the 
provisions of Sec. 9.9(a), upon sale of the property, the lienholder may 
receive the payment of a monetary amount up to the sum of the 
lienholder's net equity, less the expenses and costs incident to the 
forfeiture and sale of the property, and any other monetary conditions 
imposed. The Ruling Official, at his or her discretion, may waive costs 
and expenses incident to the forfeiture.
    (3) If the lienholder does not notify the Ruling Official of the 
selection of one of the two options set forth in paragraph (b)(2) of 
this section within twenty (20) days of the receipt of notification, the 
Ruling Official shall direct the United States Marshal or other property 
custodian to sell the property and pay the lienholder an amount up to 
the net equity, less the costs and expenses incurred incident to the 
forfeiture and sale, and any monetary conditions imposed. In the event a 
lienholder subsequently receives a payment of any kind on the debt owed 
for which he or she received payment as a

[[Page 182]]

result of the granting of remission or mitigation, the lienholder shall 
reimburse the Assets Forfeiture Fund to the extent of the payment 
received.
    (4) Where the lienholder does not comply with the conditions imposed 
upon the release of the property, the property shall be sold after 
forfeiture. From the proceeds of the sale, all costs incident to the 
forfeiture and sale shall first be deducted, and the balance up to the 
net equity, less any monetary conditions, shall be paid to the 
lienholder.



Sec. 9.8  Provisions applicable to victims.

    The provisions of this section apply to victims of an offense 
underlying the forfeiture of property, or of a related offense, who do 
not have a present ownership interest in the forfeited property (or, in 
the case of multiple victims of an offense, who do not have a present 
ownership interest in the forfeited property that is clearly superior to 
that of other petitioner victims). The provisions of this section apply 
only with respect to property forfeited pursuant to statutes that 
explicitly authorize restoration or remission of forfeited property to 
victims. Victims who have a superior present legally cognizable 
ownership interest in forfeited property may file petitions, as other 
owners, subject to the regulations set forth in Sec. 9.7(a). The claims 
of such owner victims, like those of any other owners, shall have 
priority over the claims of any non-owner victims whose claims are 
recognized pursuant to this section.
    (a) Qualification to file. A victim, as defined in Sec. 9.2(v), of 
an offense that was the underlying basis for the criminal, civil, or 
administrative forfeiture of specific property, or a victim of a related 
offense, may be granted remission of the forfeiture of that property, if 
in addition to complying with the other applicable provisions of 
Sec. 9.8, the victim satisfactorily demonstrates that:
    (1) A pecuniary loss of a specific amount has been directly caused 
by the criminal offense, or related offense, that was the underlying 
basis for the forfeiture, and that the loss is supported by documentary 
evidence including invoices and receipts;
    (2) The pecuniary loss is the direct result of the illegal acts and 
is not the result of otherwise lawful acts that were committed in the 
course of a criminal offense;
    (3) The victim did not knowingly contribute to, participate in, 
benefit from, or act in a willfully blind manner towards the commission 
of the offense, or related offense, that was the underlying basis of the 
forfeiture;
    (4) The victim has not in fact been compensated for the wrongful 
loss of the property by the perpetrator or others; and
    (5) The victim does not have recourse reasonably available to other 
assets from which to obtain compensation for the wrongful loss of the 
property.
    (b) Pecuniary loss. The amount of the pecuniary loss suffered by a 
victim for which remission may be granted is limited to the fair market 
value of the property of which the victim was deprived as of the date of 
the occurrence of the loss. No allowance shall be made for interest 
foregone or for collateral expenses incurred to recover lost property or 
to seek other recompense.
    (c) Torts. A tort associated with illegal activity that formed the 
basis for the forfeiture shall not be a basis for remission, unless it 
constitutes the illegal activity itself, nor shall remission be granted 
for physical injuries to a petitioner or for damage to a petitioner's 
property.
    (d) Denial of petition. In the exercise of his or her discretion, 
the Ruling Official may decline to grant remission where:
    (1) There is substantial difficulty in calculating the pecuniary 
loss incurred by the victim or victims;
    (2) The amount of the remission, if granted, would be small compared 
with the amount of expenses incurred by the government in determining 
whether to grant remission; or
    (3) The total number of victims is large and the monetary amount of 
the remission so small as to make its granting impractical.
    (e) Pro rata basis. In granting remission to multiple victims 
pursuant to this section, the Ruling Official should generally grant 
remission on a pro rata basis to recognized victims when petitions 
cannot be granted in full due to

[[Page 183]]

the limited value of the forfeited property. However, the Ruling 
Official may consider, among others, the following factors in 
establishing appropriate priorities in individual cases:
    (1) The specificity and reliability of the evidence establishing a 
loss;
    (2) The fact that a particular victim is suffering an extreme 
financial hardship;
    (3) The fact that a particular victim has cooperated with the 
government in the investigation related to the forfeiture or to a 
related persecution or civil action; and
    (4) In the case of petitions filed by multiple victims of related 
offenses, the fact that a particular victim is a victim of the offense 
underlying the forfeiture.
    (f) Reimbursement. Any petitioner granted remission pursuant to this 
part shall reimburse the Assets Forfeiture Fund for the amount received 
to the extent the individual later receives compensation for the loss of 
the property from any other source. The petitioner shall surrender the 
reimbursement upon payment from any secondary source.
    (g) Claims of financial institution regulatory agencies. In cases 
involving property forfeitable under 18 U.S.C. 981(a)(1)(C) or 
(a)(1)(D), the Ruling Official may decline to grant a petition filed by 
a petitioner in whole or in part due to the lack of sufficient 
forfeitable funds to satisfy both the petition and claims of the 
financial institution regulatory agencies pursuant to 18 U.S.C. 
981(e)(3) or (7). Generally, claims of financial institution regulatory 
agencies pursuant to 18 U.S.C. 981(e)(3) or (7) shall take priority over 
claims of victims.



Sec. 9.9   Miscellaneous provisions.

    (a) Priority of payment. Except where otherwise provided in this 
part, costs incurred by the United States Marshals Service and other 
agencies participating in the forfeiture that were incident to the 
forfeiture, sale, or other disposition of the property shall be deducted 
from the amount available for remission or mitigation. Such costs 
include, but are not limited to, court costs, storage costs, brokerage 
and other sales-related costs, the amount of any liens and associated 
costs paid by the government on the property, costs incurred in paying 
the ordinary and necessary expenses of a business seized for forfeiture, 
awards for information as authorized by statute, expenses of trustees or 
other assistants pursuant to paragraph (c) of this section, 
investigative or prosecutive costs specially incurred incident to the 
particular forfeiture, and costs incurred incident to the processing of 
the petition(s) for remission or mitigation. The remaining balance shall 
be available for remission or mitigation. The Ruling Official shall 
direct the distribution of the remaining balance in the following order 
or priority, except that the Ruling Official may exercise discretion in 
determining the priority between petitioners belonging to classes 
described in paragraphs (a)(3) and (4) of this section in exceptional 
circumstances:
    (1) Owners;
    (2) Lienholders;
    (3) Federal financial institution regulatory agencies (pursuant to 
paragraph (e) of this section), not constituting owners or lienholders; 
and
    (4) Victims not constituting owners or lienholders (pursuant to 
Sec. 9.8).
    (b) Sale or disposition of property prior to ruling. If forfeited 
property has been sold or otherwise disposed of prior to a ruling, the 
Ruling Official may grant relief in the form of a monetary amount. The 
amount realized by the sale of the property is presumed to be the value 
of the property. Monetary relief shall not be greater than the appraised 
value of the property at the time of seizure and shall not exceed the 
amount realized from the sale or other disposition. The proceeds of the 
sale shall be distributed as follows:
    (1) Payment of the government's expenses incurred incident to the 
forfeiture and sale, including court costs and storage charges, if any;
    (2) Payment to the petitioner of an amount up to his or her interest 
in the property;
    (3) Payment to the Assets Forfeiture Fund of all other costs and 
expenses incident to the forfeiture;
    (4) In the case of victims, payment of any amount up to the amount 
of his or her loss; and

[[Page 184]]

    (5) Payment of the balance remaining, if any, to the Assets 
Forfeiture Fund.
    (c) Trustees and other assistants. In the exercise of his or her 
discretion, the Ruling Official, with the approval of the Asset 
Forfeiture and Money Laundering Section, may use the services of a 
trustee, other government official, or appointed contractors to notify 
potential petitioners, process petitions, and make recommendations to 
the Ruling Official on the distribution of property to petitioners. The 
expense for such assistance shall be paid out of the forfeited funds.
    (d) Other agencies of the United States. Where another agency of the 
United States is entitled to remission or mitigation of forfeited assets 
because of an interest that is recognizable under this part or is 
eligible for such transfer pursuant to 18 U.S.C. 981(e)(6), such agency 
shall request the transfer in writing, in addition to complying with any 
applicable provisions of Secs. 9.3 through 9.5. The decision to make 
such transfer shall be made in writing by the Ruling Official.
    (e) Financial institution regulatory agencies. A Ruling Official may 
direct the transfer of property under 18 U.S.C. 981(e) to certain 
federal financial institution regulatory agencies or an entity acting in 
their behalf, upon receipt of a written request, in lieu of ruling on a 
petition for remission or mitigation.
    (f) Transfers to foreign governments. A Ruling Official may decline 
to grant remission to any petitioner other than an owner or lienholder 
so that forfeited assets may be transferred to a foreign government 
pursuant to 18 U.S.C. 981(i)(1), 19 U.S.C. 1616a(c)(2), or 21 U.S.C. 
881(e)(1)(E).
    (g) Filing by attorneys. (1) A petition for remission or mitigation 
may be filed by a petitioner or by his or her attorney or legal 
guardian. If an attorney files on behalf of the petitioner, the petition 
must include a signed and sworn statement by the client-petitioner 
stating that:
    (i) The attorney has the authority to represent the petitioner in 
this proceeding;
    (ii) The petitioner has fully reviewed the petition; and
    (iii) The petition is truthful and accurate in every respect.
    (2) Verbal notification of representation is not acceptable. 
Responses and notification of rulings shall not be sent to an attorney 
claiming to represent a petitioner unless a written notice of 
representation is filed. No extensions of time shall be granted due to 
delays in submission of the notice of representation.
    (h) Consolidated petitions. At the discretion of the Ruling Official 
in individual cases, a petition may be filed by one petitioner on behalf 
of other petitioners, provided the petitions are based on similar 
underlying facts, and the petitioner who files the petition has written 
authority to do so on behalf of the other petitioners. This authority 
must be either expressed in documents giving the petitioner the 
authority to file petitions for remission, or reasonably implied from 
documents giving the petitioner express authority to file claims or 
lawsuits related to the course of conduct in question on behalf of these 
petitioners. An insurer or an administrator of an employee benefit plan, 
for example, which itself has standing to file a petition as a 
``victim'' within the meaning of Sec. 9.2(v), may also file a petition 
on behalf of its insured or plan beneficiaries for any claims they may 
have based on co-payments made to the perpetrator of the offense 
underlying the forfeiture or the perpetrator of a ``related offense'' 
within the meaning of Sec. 9.2(s), if the authority to file claims or 
lawsuits is contained in the document or documents establishing the 
plan. Where such a petition is filed, any amounts granted as a remission 
must be transferred to the other petitioners, not the party filing the 
petition; although, in his or her discretion, the Ruling Official may 
use the actual petitioner as an intermediary for transferring the 
amounts authorized as a remission to the other petitioners.

[[Page 185]]



PART 10--REGISTRATION OF CERTAIN ORGANIZATIONS CARRYING ON ACTIVITIES WITHIN THE UNITED STATES--Table of Contents




                         Registration Statement

Sec.
10.1  Form of registration statement.
10.2  Language of registration statement.
10.3  Effect of acceptance of registration statement.
10.4  Date of filing.
10.5  Incorporation of papers previously filed.
10.6  Necessity for further registration.
10.7  Cessation of activity.

                   Supplemental Registration Statement

10.8  Information to be kept current.
10.9  Requirements for supplemental registration statement.

                  Inspection of Registration Statement

10.10  Public inspection.

    Authority: Pub. L. 772, 80th Cong.; 18 U.S.C. 2386.

    Source: 6 FR 369, Jan. 15, 1941, unless otherwise noted.

    Cross References: For regulations under the Foreign Agents 
Registration Act, see part 5 of this chapter.

    For Organization Statement, Internal Security Section, see subpart K 
of part 0 of this chapter.

                         Registration Statement



Sec. 10.1   Form of registration statement.

    Every organization required to submit a registration statement1 
to the Attorney General for filing in compliance with the terms of 
section 2 of the act approved October 17, 1940, entitled, ``An act to 
require the registration of certain organizations carrying on activities 
within the United States, and for other purposes'' (Pub. L. 772, 80th 
Cong.; 18 U.S.C. 2386), and the rules and regulations issued pursuant 
thereto, shall submit such statement on such forms as are prescribed by 
the Attorney General. Every statement required to be filed with the 
Attorney General shall be subscribed under oath by all of the officers 
of the organization registering.
---------------------------------------------------------------------------

    1Filed as a part of the original document. Copies may be 
obtained from the Department of Justice.
---------------------------------------------------------------------------



Sec. 10.2   Language of registration statement.

    Registration statements must be in English if possible. If in a 
foreign language they must be accompanied by an English translation 
certified under oath by the translator, before a notary public or other 
person authorized by law to administer oaths for general purposes as a 
true and adequate translation. The statements, with the exception of 
signature, must be typewritten if practicable but will be accepted if 
written legibly in ink.



Sec. 10.3   Effect of acceptance of registration statement.

    Acceptance by the Attorney General of a registration statement 
submitted for filing shall not necessarily signify a full compliance 
with the said act on the part of the registrant, and such acceptance 
shall not preclude the Attorney General from seeking such additional 
information as he deems necessary under the requirements of the said 
act, and shall not preclude prosecution as provided for in the said act 
for a false statement of a material fact, or the willful omission of a 
material fact required to be stated therein, or necessary to make the 
statements made not misleading.



Sec. 10.4   Date of filing.

    The date on which a registration statement properly executed is 
accepted by the Attorney General for filing shall be considered the date 
of the filing of such registration statement pursuant to the said act. 
All statements must be filed not later than thirty days after January 
15, 1941.



Sec. 10.5   Incorporation of papers previously filed.

    Papers and documents already filed with the Attorney General 
pursuant to the said act and regulations issued pursuant thereto may be 
incorporated by reference in any registration statement subsequently 
submitted to the Attorney General for filing, provided such papers and 
documents are adequately identified in the registration statement

[[Page 186]]

in which they are incorporated by reference.



Sec. 10.6   Necessity for further registration.

    The filing of a registration statement with the Attorney General as 
required by the act shall not operate to remove the necessity for filing 
a registration statement with the Attorney General as required by the 
act of June 8, 1938, as amended, entitled ``An act to require the 
registration of certain persons employed by agencies to disseminate 
propaganda in the United States and for other purposes'' (52 Stat. 631, 
56 Stat. 248; 22 U.S.C. 611), or for filing a notification statement 
with the Secretary of State as required by the act of June 15, 1917 (40 
Stat. 226).

[13 FR 8292, Dec. 24, 1948]



Sec. 10.7   Cessation of activity.

    The chief officer or other officer of the registrant organization 
must notify the Attorney General promptly upon the cessation of the 
activity of the organization, its branches, chapters, or affiliates by 
virtue of which registration has been required pursuant to the act.

                   Supplemental Registration Statement



Sec. 10.8   Information to be kept current.

    A supplemental statement must be filed with the Attorney General 
within thirty days after the expiration of each period of six months 
succeeding the original filing of a registration statement. Each 
supplemental statement must contain information and documents as may be 
necessary to make information and documents previously filed accurate 
and current with respect to the preceding six months' period.



Sec. 10.9   Requirements for supplemental registration statement.

    The rules and regulations in this part with respect to registration 
statements submitted to the Attorney General under section 2 of the said 
act shall apply with equal force and effect to supplemental registration 
statements required thereunder to be filed with the Attorney General.

                  Inspection of Registration Statement



Sec. 10.10   Public inspection.

    Registration statements filed with the Attorney General pursuant to 
the said act shall be available for public inspection in the Department 
of Justice, Washington, DC, from 10 a.m. to 4 p.m. on each official 
business day.

[13 FR 8292, Dec. 24, 1948]



PART 11--DEBT COLLECTION--Table of Contents




       Subpart A--Retention of Private Counsel for Debt Collection

Sec.
11.1  Delegation of authority.
11.2  Pilot program.
11.3  Compliance with existing laws.

              Subpart B--Administration of Debt Collection

11.4  Purpose and scope.
11.5  Delegation of authority.
11.6  Definitions.
11.7  Salary adjustments.
11.8  Salary offset.
11.9  Administrative offset.

   Subpart C--IRS Tax Refund Offset Provisions for Collection of Debts

11.10  Scope.
11.11  Definitions.
11.12  Procedures.

    Authority: 5 U.S.C. 301, 28 U.S.C. 509, 510, 31 U.S.C. 3718, 3720A.

    Source: Order No. 1201-87, 52 FR 24449, July 1, 1987, unless 
otherwise noted.



       Subpart A--Retention of Private Counsel for Debt Collection



Sec. 11.1  Delegation of authority.

    The Assistant Attorney General for Administration shall exercise the 
full authority of the Attorney General to develop and administer the 
Department of Justice pilot program for debt collection by private 
counsel. This authority shall include, but is not limited to, the 
authority to set policies and procedures for the program, and to enter 
into contracts for the retention of private counsel. The Assistant 
Attorney General for Adminstration can in turn delegate authority 
regarding debt collection to subordinate officials

[[Page 187]]

as appropriate. Existing delegations of authority with respect to 
settlement determinations on disputed claims shall remain in force. See 
generally, 28 CFR 0.160 et seq.



Sec. 11.2  Pilot program.

    The Assistant Attorney General for Administration, in consultation 
with the Executive Office for United States Attorneys, shall designate 
the districts that will participate in the pilot program. U.S. Attorneys 
in the districts chosen for the pilot program, shall direct the full 
cooperation and assistance of their respective offices in implementing 
the program. Among other things, the U.S. Attorneys shall designate an 
Assistant U.S. Attorney to serve as the Contracting Officer's Technical 
Representative (COTR) on the contracts with private debt collection 
lawyers in their respective districts. The COTRs will be responsible for 
assisting the contracting officer by supervising the work of the private 
counsel in their respective districts and providing necessary approvals 
with respect to the initiation or settlement of lawsuits or similar 
matters.



Sec. 11.3  Compliance with existing laws.

    The procurement of the services of private attorneys for debt 
collection shall be accomplished in accordance with the competitive 
procurement procedures mandated by Federal law, and set forth in the 
Federal Property and Administrative Services Act of 1949, 41 U.S.C. 251 
et seq. Best efforts shall be made to encourage extensive participation 
by law firms owned and controlled by socially and economically 
disadvantaged individuals in the competition for award of these 
contracts in the pilot districts. Such efforts shall include, at 
minimum, publication of the requirement for these services in the 
Commerce Business Daily and in a selection of pertinent legal 
publications likely to reach socially and economically disadvantaged 
firms, as well as sending written notice of the requirements to bar 
associations that have a significant socially and economically 
disadvantaged membership in the pilot districts. These special 
recruitment efforts will not authorize or permit preferential 
consideration to any bidders in selection for award of these contracts. 
The Department's Office of Small and Disadvantaged Business Utilization 
shall also make its resources available to assist in encouraging broad 
participation in this competition.



              Subpart B--Administration of Debt Collection

    Source: Order No. 1625-92, 57 FR 44107, Sept. 24, 1992, unless 
otherwise noted.



Sec. 11.4  Purpose and scope.

    (a) Purpose. The purpose of this subpart is to implement 5 U.S.C. 
5514 and 31 U.S.C. 3716, which authorize the collection by salary or 
administrative offset of debts owed by persons, organizations, or 
entities to the federal government. Generally, however, a debt may not 
be collected by such means if it has been outstanding for more than ten 
years after the agency's right to collect the debt first accrued. This 
subpart is consistent with the Office of Personnel Management (OPM) 
regulations on salary offset, codified at 5 CFR part 550, subpart K, and 
with regulations on administrative offset published jointly by the 
General Accounting Office (GAO) and the Department of Justice 
(Department), codified at 4 CFR part 102.
    (b) Scope. (1) This subpart establishes Departmental procedures for 
the collection of certain debts owed the government.
    (2) This subpart applies to collections by the Department from:
    (i) Federal employees who are indebted to the Department;
    (ii) Employees of the Department who are indebted to other agencies; 
and
    (iii) Other persons, organizations, or entities that are indebted to 
the Department.
    (3) This subpart does not apply:
    (i) To debts or claims arising under the Internal Revenue Code of 
1986 (26 U.S.C. et seq.), the Social Security Act (42 U.S.C. 301 et 
seq.), or the tariff laws of the United States;
    (ii) To a situation to which the Contract Disputes Act (41 U.S.C. 
601 et seq.) applies; or

[[Page 188]]

    (iii) In any case where collection of a debt is explicitly provided 
for or prohibited by another statute (e.g., travel advances in 5 U.S.C. 
5705 and employee training expenses in 5 U.S.C. 4108).
    (4) Nothing in this subpart precludes the compromise, suspension, or 
termination of collection actions where appropriate under the standards 
implementing the Federal Claims Collection Act (31 U.S.C. 3711 et seq.), 
namely, 4 CFR chapter II and 38 CFR 1.900-1.954).
    (5) This subpart does not govern debt collection procedures 
implemented by other agencies.



Sec. 11.5  Delegation of authority.

    Authority to conduct the following activities is hereby delegated to 
heads of Department organizations with respect to debts arising in their 
respective organizations:
    (a) Initiate and effectuate the administrative collection process.
    (b) Accept or reject compromise offers and suspend or terminate 
collection actions where the claim does not exceed $100,000 or such 
higher amount as the Attorney General may from time to time prescribe, 
exclusive of interest, administrative costs, and penalties as provided 
herein, as set forth in 311 U.S.C. 3711(a)(2).
    (c) Report to consumer reporting agencies certain data pertaining to 
delinquent debts.
    (d) Use offset procedures to effectuate collection.
    (e) Take any other action necessary to facilitate and augment 
collection in accordance with the policies contained herein and as 
otherwise provided by law.



Sec. 11.6  Definitions.

    Except where the context clearly indicates otherwise or where the 
term is otherwise defined elsewhere in this subpart, the following 
definitions shall apply to this subpart.
    (a) Agency means:
    (1) An executive agency as defined by 5 U.S.C. 105;
    (2) A military department as defined by 5 U.S.C. 102;
    (3) The United States Postal Service and the Postal Rate Commission;
    (4) An agency of the judicial branch, including a court as defined 
by 28 U.S.C. 610, the District Court for the Northern Mariana Islands, 
and the Judicial Panel on Multidistrict Litigation;
    (5) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (6) Other entities that are establishments of the federal 
government.
    (b) Bureau means the Bureau of Prisons, the Drug Enforcement 
Administration, the Federal Bureau of Investigation (FBI), Federal 
Prison Industries, the Immigration and Naturalization Service, the 
Office of Justice Programs, and the United States Marshals Service 
(USMS).
    (c) Certification means a written statement received by a paying 
agency from a creditor agency that requests the paying agency to offset 
the salary of an employee and specifies that appropriate procedural 
protections have been afforded the employee.
    (d) Components means the bureaus, offices, boards, and divisions of 
the Department.
    (e) Compromise means the forgiveness of a debt in accordance with 31 
U.S.C. 3711(a)(2) and DOJ Order No. 2120.4E. (Copies of this order are 
available in accordance with 28 CFR part 16, subpart A.)
    (f) Creditor agency means an agency of the federal government to 
which the debt is owed.
    (g) Department or Justice Department means the Department of Justice 
and its components.
    (h) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, and, in the case of an 
employee not entitled to basic pay, other authorized pay, remaining 
after the deduction of any amount required by law to be withheld. The 
Department shall allow the following deductions in determining the 
amount of disposable pay that is subject to salary offset:
    (1) Amounts withheld from benefits payable under title II of the 
Social Security Act where the withholding is required the law;
    (2) Federal employment taxes;
    (3) Amounts mandatorily withheld for the United States Soldiers' and 
Airmen's Home;

[[Page 189]]

    (4) Fines and forfeiture ordered by a court-martial or by a 
commanding officer;
    (5) Amounts deducted for Medicare;
    (6) Federal, state, or local income taxes to the extent authorized 
or required by law, but no greater than would be the case if the 
employee claimed all dependents to which he or she is entitled and such 
additional amounts for which the employee presents evidence of a tax 
obligation supporting the additional withholding;
    (7) Health insurance premiums;
    (8) Normal retirement contributions (e.g., Civil Service Retirement 
deductions, Survivor Benefit Plan payments, or Retired Servicemen's 
Family Protection Plan payments), not including amounts deducted for 
supplementary coverage; and
    (9) Normal life insurance premiums (e.g., Serviceman's Group Life 
Insurance and ``Basic Life'' Federal Employee's Group Life Insurance 
premiums), not including amounts deducted for supplementary coverage.
    (i) Employee means a current employee of the Justice Department or 
other agency, including a current member of the Armed Forces or a 
Reserve of the Armed Forces of the United States.
    (j) Federal Claims Collection Standards (FCCS) means standards 
jointly published by the Department and the General Accounting Office in 
4 CFR chapter II.
    (k) Hearing official means an individual responsible for conducting 
any hearing with respect to the existence or amount of a debt claimed 
and for rendering a decision on the basis of such hearing. A hearing 
official may not be under the supervision or control of the Attorney 
General when the Department is the creditor agency but may be an 
administrative law judge.
    (l) Notice of Intent to Offset or Notice of Intent means a written 
notice from a creditor agency to an employee, organization, or entity 
stating that the debtor is indebted to the creditor agency and apprising 
the debtor of certain procedural rights.
    (m) Notice of Salary Offset means a written notice from the paying 
agency to an employee after a certification has been issued by a 
creditor agency, informing the employee that salary offset will begin at 
the next officially established pay interval.
    (n) Organization means the bureaus individually and the offices, 
boards, and divisions collectively.
    (o) Organization head means any Director, Administrator, or 
Commissioner of the respective Department bureaus, the Director of the 
United States Trustee System, the Director of the Executive Office for 
United States Attorneys, and the Assistant Attorney General for 
Administration, who shall serve as the organization head for the 
offices, boards, and divisions.
    (p) Paying agency means the agency of the federal government that 
employs the individual who owes a debt to an agency of the federal 
government. In some cases, the Department may be both the creditor 
agency and the paying agency.
    (q)(1) Payroll office means the payroll office in the paying agency 
that is primarily responsible for the payroll records and the 
coordination of pay matters with the appropriate personnel office with 
respect to an employee.
    (2) Applicable payroll office means the Federal Bureau of 
Investigation voucher and Payroll Section with respect to FBI employees 
and the Justice Employee Data Service for all other employees of the 
Department.
    (r) Salary offset coordination officer means an official designated 
by an organization head who is responsible for coordinating the debt 
collection activities of that organization.



Sec. 11.7  Salary adjustments.

    Any negative adjustment to pay arising out of an employee's election 
of coverage, or a change in coverage, under a Federal benefits program 
requiring periodic deductions from pay shall not be considered 
collection of a ``debt'' for the purposes of this subpart if the amount 
to be recovered was accumulated over four pay periods or less. In such 
cases, the Department need not comply with Sec. 11.8, but it will 
endeavor to provide a clear and concise statement in the employee's 
earnings statement advising the employee of the previous overpayment at 
the time the adjustment is made.

[[Page 190]]



Sec. 11.8  Salary offset.

    (a) Notice requirements before offset. Deductions under the 
authority of 5 U.S.C. 5514 will not be made unless the creditor agency 
provides the employee with a written Notice of Intent to Offset a 
minimum of 30 calendar days before salary offset is initiated. When the 
Department is the creditor agency, this Notice of Intent shall be hand-
delivered or sent by certified mail to the Assistant Director, Justice 
Employee Data Service, or to the Section Chief, Voucher and Payroll 
Section, Administrative Services Division, FBI, who shall then transmit 
the Notice of Intent to the debtor-employee. The Notice of Intent shall 
state:
    (1) That the organization head has reviewed the records relating to 
the claim and has determined that a debt is owed, including the amount 
of the debt and the facts giving rise to the debt;
    (2) The organization head's intention to collect the debt by means 
of deduction from the employee's current disposable pay account until 
the debt and all accumulated interest is paid in full;
    (3) A repayment schedule that includes the amount, frequency, 
proposed beginning date, and duration of the intended deductions;
    (4) The opportunity for the employee to propose an alternative 
written schedule for the voluntary repayment of the debt, in lieu of 
offset, on terms acceptable to the Department. The employee shall 
include a justification in the request for the alternative schedule. The 
schedule shall be agreed to and signed by both the employee and the 
organization head;
    (5) An explanation of the Department's policy concerning interest, 
penalties, and administrative costs, including a statement that such 
assessments must be made unless excused in accordance with the Federal 
Claims Collection Standards;
    (6) The employee's right to inspect and copy all records of the 
Department pertaining to the debt claimed or to receive copies of such 
records if the debtor is unable personally to inspect the records, due 
to geographical or other constraints;
    (7) The name, address, and telephone number of an officer or 
employee of the Department to whom requests for access to Department 
records relating to the debt must be sent;
    (8) The employee's right to a hearing conducted by an impartial 
hearing official (an administrative law judge or other hearing official 
not under the supervision or control of the Attorney General) with 
respect to the existence and amount of the debt claimed or the repayment 
schedule (i.e., the percentage of disposable pay to be deducted each pay 
period), so long as a petition is filed by the employee as prescribed in 
paragraph (c)(1) of this section.
    (9) The name, address, and telephone number of the officer or 
employee of the Department to whom a proposal for voluntary repayment 
must be sent; and the name, address, and telephone number of an officer 
or employee of the Department who may be contacted concerning procedures 
for requesting a hearing;
    (10) The method and deadline for requesting a hearing;
    (11) That the timely filing of a petition for a hearing on or before 
the 15th calendar day following receipt of the Notice of Intent will 
stay the commencement of collection proceedings;
    (12) The name and address of the office to which the petition should 
be sent;
    (13) That the Department will initiate certification procedures to 
implement a salary offset not less than 30 days from the date of receipt 
of the Notice of Intent to Offset, unless the employee files a timely 
petition for a hearing;
    (14) That a final decision on whether a hearing will be held (if one 
is requested) will be issued at the earliest practical date, but not 
later than 60 days after the filing of the petition requesting the 
hearing;
    (15) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5 
CFR part 752, or any other applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or 
under any other applicable statutory authority; or

[[Page 191]]

    (iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or 
under any other applicable statutory authority;
    (16) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (17) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted from debts that 
are later waived or found not to be owed to the United States will be 
promptly refunded to the employee, and
    (i) Interest shall be paid on any amount paid on or deducted from a 
debt that is found not to be owed to the United States; and
    (ii) Interest shall not be paid on any amount paid on or deducted 
from a debt that is later waived; and
    (18) That proceedings with respect to such debt are governed by 5 
U.S.C. 5514.
    (b) Review of Departmental records related to the debt. (1) An 
employee who desires to inspect or copy Department records related to 
the debt must send a letter to the official designated in the Notice of 
Intent requesting access to the relevant records. The letter must be 
received in the office of the salary offset coordination official within 
15 days after the employee's receipt of the Notice of Intent.
    (2) In response to a timely request submitted by the debtor, the 
designated salary offset coordination official will notify the employee 
of the location and time when the employee may inspect and copy records 
related to the debt.
    (3) If the employee is unable personally to inspect the records, due 
to geographical or other constraints, the salary offset coordination 
official shall arrange to send copies of such records to the employee.
    (c) Opportunity for a hearing where the Department is the creditor 
agency. (1) Request for a hearing. (i) An employee who requests a 
hearing on the existence or amount of the debt held by the Department or 
on the offset schedule proposed by the Department must send such request 
to the office designated in the Notice of Intent. The request or 
petition for a hearing must be received by the designated office on or 
before the 15th calendar day following receipt by the employer of the 
notice.
    (ii) The employee must specify whether an oral hearing is requested. 
If an oral hearing is desired, the request should explain why the matter 
cannot be resolved by review of the documentary evidence alone. The 
request must be signed by the employee and must fully identify and 
explain with reasonable specificity all the facts, evidence, and 
witnesses, if any, that the employee believes support his or her 
position.
    (2) Failure to timely submit. If the employee files a request or 
petition for hearing after the expiration of the 15-calendar-day period 
provided for in paragraph (c)(1) of this section, the organization head 
may accept the request if the employee can show that the delay was the 
result of circumstances beyond his or her control or that he or she 
failed to receive actual notice of the filing deadline.
    (3) Obtaining the services of hearing official. (i) When the debtor 
is not a Department employee and the Department cannot provide a prompt 
and appropriate hearing before an administrative law judge or other 
hearing official, the Department may request a hearing official from an 
agent of the paying agency, as designated in 5 CFR part 581, appendix A, 
or as otherwise designated by the paying agency.
    (ii) When the debtor is a Department employee, the Department may 
contact any agent of another agency, as designated in 5 CFR part 581, 
appendix A, or as otherwise designated by the agency, to request a 
hearing official.
    (4) Procedure--(i) Notice. After the employee requests a hearing, 
the hearing official shall notify the employee of the form of the 
hearing to be provided. If the hearing will be oral, the notice shall 
set forth the date, time, and location of the hearing, which must occur 
no more than 30 days after the request is received. If the hearing will 
be conducted by examination of documents, the employee shall be notified 
within 30 days that he or she should submit evidence and arguments in 
writing to the hearing official.

[[Page 192]]

    (ii) Oral hearing. An employee who requests an oral hearing shall be 
provided an oral hearing if the hearing official determines that the 
matter cannot be resolved by review of documentary evidence alone (e.g., 
when an issue of credibility or veracity is involved). The hearing need 
not be an adversarial adjudication, and rules of evidence need not 
apply. Oral hearings may take the form of, but are not limited to:
    (A) Informal conferences with the hearing official in which the 
employee and agency representative are given full opportunity to present 
evidence, witnesses, and argument;
    (B) Informal meetings in which the hearing examiner interviews the 
employee; or
    (C) Formal written submissions followed by an opportunity for oral 
presentation.
Witnesses who testify in oral hearings shall do so under oath or 
affirmation.
    (iii) Documentary hearing. If the hearing official determines that 
an oral hearing is not necessary, he or she shall make the determination 
based upon a review of the written record.
    (iv) Record. The hearing official shall maintain a summary record of 
any hearing conducted under this section.
    (5) Date of decision. The hearing official shall issue a written 
opinion stating his or her decision, based upon all evidence and 
information developed at the hearing, as soon as practicable after the 
hearing, but not later than 60 days after the date on which the petition 
was received by the Department, unless the hearing was delayed at the 
request of the employee, in which case the 60 day decision period shall 
be extended by the number of days by which the hearing was postponed. 
Decisions not timely rendered shall result in the waiver of penalty and 
interest costs. The decision of the hearing official shall be final.
    (6) Content of decision. The written decision shall include:
    (i) A summary of the facts concerning the origin, nature, and amount 
of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, if applicable.
    (7) Failure to appear. If, in the absence of good cause shown (e.g., 
illness), the employee or the representative of the Department fails to 
appear, the hearing official shall proceed with the hearing as 
scheduled, and make his or her determination based upon the oral 
testimony presented and the documentation submitted by both parties. At 
the request of both parties, the hearing official may schedule a new 
hearing date. Both parties shall be given reasonable notice of the time 
and place of this new hearing.
    (d) Certification where the Department is the creditor agency. (1) 
The salary offset coordination officer shall provide a certification to 
the appropriate payroll office in all cases where:
    (i) The hearing official determines that a debt exists; or
    (ii) The employee admits the existence and amount of the debt by 
failing to request a hearing.
    (2) The certification must be in writing and must state:
    (i) That the employee owes the debt;
    (ii) The amount and basis of the debt;
    (iii) The date the government's right to collect the debt first 
accrued;
    (iv) That the Department's regulations have been approved by OPM 
pursuant to 5 CFR part 550, subpart K;
    (v) If the collection is to be made by lump-sum payment, the amount 
and data such payment will be collected;
    (vi) If the collection is to be made in installments, the number of 
installments to be collected, the amount of each installment, and the 
commencing date of the first installment, if a date other than the next 
officially established pay period; and
    (vii) The date the employee was notified of the debt, the action(s) 
taken under 5 U.S.C. 5514(a), and the dates such actions were taken.
    (e) Voluntary repayment agreements as alternative to salary offset 
where the Department is the creditor agency. (1) In response to a Notice 
of Intent, an employee may propose to repay the debt in accordance with 
scheduled installment payments. Any employee who wishes to repay a debt 
without salary offset shall submit in writing a proposed agreement to 
repay the debt. The proposal shall set forth a proposed repayment 
schedule. Any proposal under

[[Page 193]]

this subsection must be received by the office of the official 
designated in the notice within 15 calendar days after receipt of the 
Notice of Intent.
    (2) In response to a timely proposal by the debtor, the organization 
head shall notify the employee whether the employee's proposed written 
agreement for repayment is acceptable. It is within the organization 
head's discretion to accept or reject a repayment agreement.
    (3) If the organization head decides that the proposed repayment 
agreement is unacceptable, the employee shall have 15 days from the date 
he or she received notice of the decision in which to file a petition 
for a hearing.
    (4) If the organization head decides that the proposed repayment 
agreement is acceptable, the arrangement shall be put in writing and 
signed by both the employee and the organization head.
    (f) Special review where the Department is the creditor agency. (1) 
An employee subject to salary offset or a voluntary repayment agreement 
may, at any time, request a special review by the Department of the 
amount of the salary offset or voluntary payment, based on materially 
changed circumstances, including but not limited to catastrophic 
illness, divorce, death, or disability.
    (2) In determining whether, as a result of materially changed 
circumstances, an offset would prevent the employee from meeting 
essential subsistence expenses (costs incurred for food, housing, 
clothing, transportation, and medical care), the employee shall submit a 
detailed statement and supporting documents for the employee, his or her 
spouse, and dependents indicating:
    (i) Income for all sources;
    (ii) Assets;
    (iii) Liabilities;
    (iv) Number of dependents;
    (v) Expenses for food, housing, clothing, and transportation;
    (vi) Medical expenses; and
    (vii) Exceptional expenses, if any.
    (3) If the employee requests a special review under this paragraph, 
the employee shall file an alternative proposed offset or payment 
schedule and a statement, with supporting documents, showing why the 
current salary offset or payments result in an extreme financial 
hardship to the employee.
    (4) The organization head shall evaluate the statement and 
supporting documents and determine whether the original offset or 
repayment schedule imposes an extreme financial hardship on the 
employee. The organization head shall notify the employee in writing 
within 30 days of such determination, including, if appropriate, his or 
her acceptance of a revised offset or payment schedule.
    (5) If the special review results in a revised offset or repayment 
schedule, the salary offset coordination officer shall provide a new 
certification to the paying agency.
    (g) Notice of salary offset where the Department is the paying 
agency. (1) Upon receipt of proper certification from the creditor 
agency, the applicable payroll office shall send the employee a written 
notice of salary offset. Such notice shall advise the employee that:
    (i) The certification has been received from the creditor agency; 
and
    (ii) Salary offset will be initiated at the next officially 
established pay interval.
    (2) The applicable payroll office shall provide a copy of the notice 
to the creditor agency and advise such agency of the dollar amount to be 
offset and the pay period when the offset will begin.
    (h) Procedures for salary offset where the Department is the paying 
agency--(1) Generally. (i) The salary offset coordination officer shall 
coordinate salary deductions under this section.
    (ii) The applicable payroll office shall determine the amount of an 
employee's disposable pay and offset salary.
    (iii) Deductions shall begin the pay period following receipt by the 
applicable payroll office of the certification or as soon thereafter as 
possible.
    (2) Types of collection--(i) Lump-sum payment. If the amount of the 
debt is equal to or less than 15 percent of the employee's disposable 
pay, such debt ordinarily will be collected in one lump-sum payment.
    (ii) Installment deductions. Installment deductions will be made 
over a period not greater than the anticipated

[[Page 194]]

period of employment. The size and frequency of installment deductions 
will bear a reasonable relation to the size of the debt and the 
employee's ability to pay. However, the amount deducted from any period 
will not exceed 15 percent of the disposable pay from which the 
deduction is made unless the employee has agreed in writing to the 
deduction of a greater amount. The installment payment should normally 
be sufficient in size and frequency to liquidate the debt in no more 
than three years. Installment payments of less than $50 should be 
accepted only in the most unusual circumstances.
    (iii) Lump-sum deductions from final check. A lump-sum deduction 
exceeding 15 percent of disposable pay may be made pursuant to 31 U.S.C. 
3716 from any final salary payment due a former employee in order to 
liquidate a debt, whether the former employee was separated voluntarily 
or involuntarily.
    (iv) Lump-sum deductions from other sources. Whenever an employee 
subject to salary offset is separated from the Department, and the 
balance of the debt cannot be liquidated by offset of the final salary 
check, the Department, pursuant to 31 U.S.C. 3716, may offset any later 
payments of any kind against the balance of the debt.
    (3) Multiple debts. Where two or more creditor agencies are seeking 
salary offset, or where two or more debts are owed to a single creditor 
agency, the applicable payroll office may, at its discretion, determine 
whether one or more debts should be offset simultaneously within the 15 
percent limitation. The best interests of the government shall be the 
primary consideration in the determination by the payroll office of the 
order of the debt collection.
    (4) Precedence of salary deductions by the Department. (i) For 
Department employees, debts owed shall be paid out of disposable pay in 
the following order of precedence:
    (A) Indebtedness due the Department.
    (B) Indebtedness due other agencies.
    (C) Garnishments for alimony and child support payments.
    (D) Court-ordered bankruptcy payments under the Bankruptcy Code.
    (E) Optional life insurance premiums.
    (F) Other voluntary deductions including allotments and assignments, 
in the order determined by the paying agency.
    (ii) In the event that a debt to the Department is certified while 
an employee is subject to salary offset to repay another agency, the 
applicable payroll office may decide whether the debt to the other 
agency should be repaid in full before collecting the Department's claim 
or whether changes should be made in the salary deduction being sent to 
the other agency. If debts owed to the Department can be collected in 
one pay period, the payroll office may suspend the salary offset to the 
other agency for that pay period in order to liquidate the Department's 
debt.
    (i) Coordinating salary offset with other agencies--(1) 
Responsibility of the Department as the creditor agency. (i) The salary 
offset coordination officer shall be responsible for:
    (A) Arranging for hearing upon proper petition by a federal 
employee;
    (B) Preparing the Notice of Intent to Offset consistent with the 
requirements of paragraph (a) of this section;
    (C) Obtaining hearing officials from other agencies pursuant to 
paragraph (c)(3) of this section; and
    (D) Ensuring that each certification of debt is sent to a paying 
agency pursuant to paragraph (d)(2) of this section.
    (ii) Upon completion of the procedures established in paragraphs (a) 
through (f) of this section, the salary offset coordination officer 
shall submit a debt claim and an installment agreement or other 
instruction on the payment schedule, if applicable, to the employee's 
paying agency.
    (iii) If the employee is in the process of separating from 
government employment, the Department shall submit its debt claim to the 
employee's paying agency for collection by lump-sum deductions from the 
employee's final check. The paying agency shall certify the total amount 
of its collection and furnish a copy of the certification to the 
Department and to the employee.
    (iv) If the employee is already separated and all payments due from 
his or her former paying agency have been

[[Page 195]]

paid, the Department may, unless otherwise prohibited, request that 
money due and payable to the employee from the federal government be 
administratively offset to collect the debt.
    (v) When an employee transfers to another paying agency, the 
Department shall not repeat the procedures described in paragraphs (a) 
through (f) of this section in order to resume collecting the debt. 
Instead, the Department shall review the debt upon receiving the former 
paying agency's notice of the employee's transfer and shall ensure the 
collection is resumed by the new paying agency.
    (2) Responsibility of the Department as the paying agency--(i) 
Complete claim. When the Department receives a certified claim from a 
creditor agency, the employee shall be given written notice of the 
certification, the date salary offset will begin, and the amount of the 
periodic deductions. Deductions shall be scheduled to begin at the next 
officially established pay interval or as soon thereafter as possible.
    (ii) Incomplete claim. When the Department receives an incomplete 
certification of debt from a creditor agency, the Department shall 
return the debt claim with notice that procedures under 5 U.S.C. 5514 
and 5 CFR 550.1104 must be followed and that a properly certified debt 
claim must be received before action will be taken to collect from the 
employee's current pay account.
    (iii) Review. The Department is not authorized to review the merits 
of the creditor agency's determination with respect to the amount or 
validity of the debt certified by the creditor agency.
    (iv) Employees who transfer from one paying agency to another. If, 
after the creditor agency has submitted the debt claim to the 
Department, the employee transfers to an agency outside the Department 
before the debt is collected in full, the Department must certify the 
total amount collected on the debt. One copy of the certification shall 
be furnished to the employee and one copy shall be sent to the creditor 
agency along with notice of the employee's transfer.
    (j) Interest, penalties, and administrative costs. Where the 
Department is the creditor agency, it shall assess interest, penalties, 
and administrative costs pursuant to 31 U.S.C. 3717 and 4 CFR 102.13.
    (k) Refunds. (1) Where the Department is the creditor agency, it 
shall promptly refund any amount deducted under the authority of 5 
U.S.C. 5514 when:
    (i) The debt is compromised or otherwise found not to be owing to 
the United States; or
    (ii) An administrative or judicial order directs the Department to 
make a refund.
    (2) Unless required by law or contract, refunds under this paragraph 
(k) shall not bear interest.
    (l) Request from a creditor agency for the services of a hearing 
official. (1) The Department may provide a hearing official upon request 
of the creditor agency when the debtor is employed by the Department and 
the creditor agency cannot provide a prompt and appropriate hearing 
before a hearing official furnished pursuant to another lawful 
arrangement.
    (2) The Department may provide a hearing offical upon request of a 
creditor agency when the debtor works for the creditor agency and that 
agency cannot arrange for a hearing official.
    (3) The salary offset coordination officer shall arrange for 
qualified personnel to serve as hearing officials.
    (4) Services rendered under this paragraph (l) shall be provided on 
a fully reimbursable basis pursuant to 31 U.S.C. 1535.
    (m) Non-waiver of rights by payments. A debtor's payment, whether 
voluntary or involuntary, of all or any portion of a debt being 
collected pursuant to this section shall not be construed as a waiver of 
any rights that the debtor may have under any statute, regulation, or 
contract except as otherwise provided by law or contract.



Sec. 11.9  Administrative offset.

    (a) Collection. The organization head may collect a claim pursuant 
to 31 U.S.C. 3716 from a person, organization, or entity other than an 
agency of the United States Government by administrative offset of 
monies other than salaries payable by the government. Collection by 
administrative offset shall

[[Page 196]]

be undertaken where the claim is certain in amount, where offset is 
feasible and desirable and not otherwise prohibited, where the 
applicable statute of limitations has not expired, and where the offset 
is in the best interest of the United States.
    (b) Withholding of payment. Prior to the completion of the 
procedures described in paragraph (c) of this section, the Department 
may withhold a payment to be made to a debtor, if:
    (1) Failure to withhold payment would substantially prejudice the 
Department's ability to collect the debt; and
    (2) The time before the payment is to be made does not reasonably 
permit completion of the procedures described in paragraph (c) of this 
section. Such prior withholding shall be followed promptly by the 
completion of the procedures described in paragraph (c) of this section.
    (c) Debtor's rights. Unless the procedures described in paragraph 
(b) of this section are used, prior to collecting any claim by 
administrative offset, the organization head shall provide the debtor 
with the following:
    (1) Written notification of the nature and amount of the claim, the 
intention of the organization head to collect the claim through 
administrative offset, and a statement of the rights of the debtor under 
this paragraph;
    (2) An opportunity to inspect and copy the records of the Department 
with respect to the claim;
    (3) An opportunity to have the Department's determination of 
indebtedness reviewed by the organization head. Any request for review 
by the debtor shall be in writing and be submitted to the Department 
within 30 days of the date of the notice of the offset. The organization 
head may waive the time limit for requesting review for good cause shown 
by the debtor; and
    (4) An opportunity to enter into a written agreement for the 
repayment of the amount of the claim at the discretion of the 
Department.

If the procedures described in paragraph (b) of this section are 
employed, the procedures described in this paragraph shall be effected 
after offset.
    (d) Interest. The Department is authorized to assess interest and 
related charges on debts that are not subject to 31 U.S.C. 3717 to the 
extent authorized under the common law or other applicable statutory 
authority.



   Subpart C--IRS Tax Refund Offset Provisions for Collection of Debts

    Source: Order No. 1792-93, 58 FR 51223, Oct. 1, 1993, unless 
otherwise noted.



Sec. 11.10  Scope.

    The provisions of 26 U.S.C. 6402(d) and 31 U.S.C. 3720A authorize 
the Secretary of the Treasury, acting through the Internal Revenue 
Service (IRS), to offset a delinquent debt owed to the United States 
Government from the tax refund due a taxpayer when other collection 
efforts have failed to recover the amount due. The purpose of these 
statutes is to improve the ability of the Government to collect money 
owed it while granting the debtor notice and certain other protections. 
This subpart authorizes the collection of debts owed to the United 
States Government by persons, organizations, and entities by means of 
offsetting any tax refunds due to the debtor by the IRS. It allows 
referral to the IRS for collection of debts that are past due and 
legally enforceable but not reduced to judgment and debts that have been 
reduced to judgment.



Sec. 11.11  Definitions.

    (a) Debt. Debt means money owed by an individual, organization or 
entity from sources which include loans insured or guaranteed by the 
United States and all other amounts due the United States from fees, 
leases, services, overpayments, civil and criminal penalties, damages, 
interest, fines, administrative costs, and all other similar sources. A 
debt becomes eligible for tax refund offset procedures if it cannot 
currently be collected pursuant to the salary offset procedures of 5 
U.S.C. 5514(a)(1) and is ineligible for administrative offset under 31 
U.S.C. 3716(a) by reason of 31 U.S.C. 3716(c)(2), or cannot currently be 
collected by administrative offset under 31 U.S.C. 3716(a) against 
amounts payable to the debtor by the Department of Justice. A non-
judgment debt is eligible for tax refund

[[Page 197]]

offset procedures if the Department's or the referring agency's right of 
action accrued more than three months but less than ten years before the 
offset is made. Judgment debts are eligible for referral at any time. 
Debts that have been referred to the Department of Justice by other 
agencies for collection are included in this definition.
    (b) Past due. All accelerated debts and all judgment debts are past 
due for purposes of this section. Such debts remain past due until paid 
in full. An accelerated debt is past due if, at the time of the notice 
required by Sec. 11.12(b), any part of the debt had been due, but not 
paid, for at least 90 days. Such an unaccelerated debt remains past due 
until paid to the current amount of indebtedness.
    (c) Notice. Notice means the information sent to the debtor pursuant 
to Sec. 11.12(b). The date of the notice is the date shown on the notice 
letter as its date of issuance.
    (d) Dispute. A dispute is a written statement supported by 
documentation or other evidence that all or part of an alleged debt is 
not past due or legally enforceable, that the amount is not the amount 
currently owed, that the outstanding debt has been satisfied, or, in the 
case of a debt reduced to judgment, that the judgment has been satisfied 
or stayed.



Sec. 11.12  Procedures.

    (a) The Department may refer any past due, legally enforceable non-
judgment debt of an individual, organization or entity to the IRS for 
offset if the Department's or the referring agency's rights of action 
accrued more than three months but less than ten years before the offset 
is made. Debts reduced to judgment may be referred at any time. Debts in 
amounts lower than $25.00 are not subject to referral.
    (b) The Department will provide the debtor with written notice of 
its intent to offset before initiating the offset. Notice will be mailed 
to the debtor at the current address of the debtor, as determined from 
information obtained from the IRS pursuant to 26 U.S.C. 6103(m)(2), (4), 
(5) or from information regarding the debt maintained by the Department 
of Justice. The notice sent to the debtor will state the amount of the 
debt and inform the debtor that:
    (1) The debt is past due;
    (2) The Department intends to refer the debt to the IRS for offset 
from tax refunds that may be due to the taxpayer;
    (3) The Department intends to provide information concerning the 
delinquent debt exceeding $100 to a consumer reporting bureau (credit 
bureau) unless such debt has already been disclosed; and
    (4) The debtor has 65 days from the date of notice in which to 
present evidence that all or part of the debt is not past due, that the 
amount is not the amount currently owed, that the outstanding debt has 
been satisfied, or, if a judgment debt, that the debt has been 
satisfied, or stayed, before the debt is reported to a consumer 
reporting agency, if applicable, and referred to the IRS for offset from 
tax refunds.
    (c) If the debtor neither pays the amount due nor presents evidence 
that the amount is not past due or is satisfied or stayed, the 
Department will report the debt to a consumer reporting agency at the 
end of the notice period, if applicable, and refer the debt to the IRS 
for offset from the taxpayer's federal tax refund.
    (d) A debtor may request a review by the Department if the debtor 
believes that all or part of the debt is not past due or is not legally 
enforceable, or, in the case of a judgment debt, that the debt has been 
stayed or the amount satisfied, as follows:
    (1) The debtor must send a written request for review to the address 
provided in the notice.
    (2) The request must state the amount disputed and the reasons why 
the debtor believes that the debt is not past due, is not legally 
enforceable, has been satisfied, or, if a judgment debt, has been 
satisfied or stayed.
    (3) The request must include any documents that the debtor wishes to 
be considered or state that additional information will be submitted 
within the time permitted.
    (4) If the debtor wishes to inspect records establishing the nature 
and amount of the debt, the debtor must request an opportunity for such 
an inspection in writing. The office holding

[[Page 198]]

the relevant records shall make them available for inspection during 
normal business hours.
    (5) The request for review and any additional information submitted 
pursuant to the request must be received by the Department at the 
address stated in the notice within 65 days of the date of issuance of 
the notice.
    (6) The Department will review disputes and shall consider its 
records and any documentation and arguments submitted by the debtor. The 
Department's decision to refer to the IRS any disputed portion of the 
debt shall be made by the Assistant Attorney General for Administration 
of his designee, who shall hold a position at least one supervisory 
level above the person who made the decision to offset the debt. The 
Department shall send a written notice of its decision to the debtor. 
There is no administrative appeal of this decision.
    (7) If the evidence presented by the debtor is considered by a non-
Departmental agent or other entities or persons acting on the 
Department's behalf, the debtor will be accorded at least 30 days from 
the date the agent or other entity or person determines that all or part 
of the debt is past-due and legally enforceable to request review by an 
officer or employee of the Department of any unresolved dispute.
    (8) Any debt that previously has been reviewed pursuant to this 
section or any other section of this part, or that has been reduced to a 
judgment, may not be disputed except on the grounds of payments made or 
events occurring subsequent to the previous review of judgment.
    (e) The Department will notify the IRS of any change in the amount 
due promptly after receipt of payments or notice of other reductions.
    (f) In the event that more than one debt is owed, the IRS refund 
offset procedure will be applied in the order in which the debts became 
past due.



PART 12--REGISTRATION OF CERTAIN PERSONS HAVING KNOWLEDGE OF FOREIGN ESPIONAGE, COUNTERESPIONAGE, OR SABOTAGE MATTERS UNDER THE ACT OF AUGUST 1, 1956--Table of Contents




Sec.
12.1  Definitions.
12.2  Administration of act.
12.3  Prior registration with the Foreign Agents Registration Unit.
12.4  Inquiries concerning application of act.
12.20  Filing of registration statement.
12.21  Time within which registration statement must be filed.
12.22  Material contents of registration statement.
12.23  Deficient registration statement.
12.24  Forms.
12.25  Amended registration statement.
12.30  Burden of establishing availability of exemptions.
12.40  Public examination.
12.41  Photocopies.
12.70  Partial compliance not deemed compliance.

    Authority: Sec. 5, 70 Stat. 900; 50 US.C. 854.

    Source: 21 FR 5928, Aug. 8, 1956, unless otherwise noted.

    Cross Reference: For Organization Statement, Internal Security 
Section, see subpart K of part 0 of this chapter.



Sec. 12.1   Definitions.

    As used in this part, unless the context otherwise requires:
    (a) The term act means the act of August 1, 1956, Public Law 893, 
84th Congress, 2d Session, requiring the registration of certain persons 
who have knowledge of, or have received instruction or assignment in the 
espionage, counterespionage, or sabotage service or tactics of a foreign 
government or foreign political party.
    (b) The term Attorney General means the Attorney General of the 
United States.
    (c) The term rules and regulations refers to all rules, regulations, 
registration forms, and instruction to forms made and prescribed by the 
Attorney General pursuant to the act.

[[Page 199]]

    (d) The term registration statement means the registration required 
to be filed with the Attorney General under section 2 of the act.
    (e) The term registrant means the person by whom a registration 
statement is filed pursuant to the provisions of the act.



Sec. 12.2   Administration of act.

    The administration of the act is assigned to the Registration Unit 
of the Internal Security Section, Criminal Division, Department of 
Justice. Communications with respect to the act shall be addressed to 
the Registration Unit Internal Security Section, Criminal Division, 
Department of Justice, Washington, DC 20530. Copies of the act, the 
regulations contained in this part, including the forms mentioned 
therein, may be obtained upon request without charge.

[Order No. 524-73, 38 FR 18235, July 9, 1973]



Sec. 12.3   Prior registration with the Foreign Agents Registration Unit.

    No person who has filed a registration statement under the terms of 
the Foreign Agents Registration Act of 1938, as amended by section 20(a) 
of the Internal Security Act of 1950, shall be required to file a 
registration statement under the act, unless otherwise determined by the 
Chief, Registration Unit.

[21 FR 5928, Aug. 8, 1956, as amended by Order No. 524-73, 38 FR 18235, 
July 9, 1973; Order No. 960-81, 46 FR 52355, Oct. 27, 1981]



Sec. 12.4   Inquiries concerning application of act.

    Inquiries concerning the application of the act must be accompanied 
by a detailed statement of all facts necessary for a determination of 
the question submitted, including the identity of the person on whose 
behalf the inquiry is made, the facts which may bring such person within 
the registration provisions of the act, and the identity of the foreign 
government or foreign political party concerned.



Sec. 12.20   Filing of registration statement.

    Registration statements shall be filed in duplicate with the 
Registration Unit, Internal Security Section, Criminal Division, 
Department of Justice, Washington, DC 20530. Filing may be made in 
person or by mail, and shall be deemed to have taken place upon the 
receipt thereof by the Registration Unit.

[Order No. 524-73, 38 FR 18235, July 9, 1973]



Sec. 12.21   Time within which registration statement must be filed.

    Every person who is or becomes subject to the registration 
provisions of the act after its effective date shall file a registration 
statement within fifteen days after the obligation to register arises.



Sec. 12.22   Material contents of registration statement.

    The registration statement shall include the following, all of which 
shall be regarded as material for the purposes of the act:
    (a) The registrant's name, principal business address, and all other 
business addresses in the United States or elsewhere, and all residence 
addresses.
    (b) The registrant's citizenship status and how such status was 
acquired.
    (c) A detailed statement setting forth the nature of the 
registrant's knowledge of the espionage, counterespionage, or sabotage 
service or tactics of a foreign government or foreign political party, 
and the manner in which, place where, and date when such knowledge was 
obtained.
    (d) A detailed statement as to any instruction or training received 
by the registrant in the espionage, counterespionage, or sabotage 
service or tactics of a foreign government or foreign political party, 
including a description of the type of instruction or training received, 
a description of any courses taken, the dates when such courses 
commenced and when they ceased, and the name and official title of the 
instructor or instructors under whose supervision the courses were 
received as well as the name and location of schools and other 
institutions attended, the dates of such attendance, and the names of 
the directors of the schools and institutions attended.
    (e) A detailed statement describing any assignment received in the 
espionage, counterespionage, or sabotage

[[Page 200]]

service or tactics of a foreign government or foreign political party, 
including the type of assignment, the date when each assignment began, 
the date of completion of each assignment, name and title of the person 
or persons under whose supervision the assignment was executed, and a 
complete description of the nature of the assignment and the execution 
thereof.
    (f) A detailed statement of any relationship which may exist at the 
time of registration, other than through employment, between the 
registrant and any foreign government or foreign political party.
    (g) Such other statements, information, or documents pertinent to 
the purposes and objectives of the act as the Attorney General, having 
due regard for the national security and the public interest, may 
require by this part or amendments thereto.



Sec. 12.23   Deficient registration statement.

    A registration statement which is determined to be incomplete, 
inaccurate, misleading, or false, by the Chief Registration Unit, may be 
returned by him to the registrant as being unacceptable for filing under 
the terms of the act.

[21 FR 5928, Aug. 8, 1956, as amended by Order No. 524-73, 38 FR 18235, 
July 9, 1973]



Sec. 12.24   Forms.

    (a) Every person required to register under the act shall file a 
registration statement on Form GA-1, and such other forms as may from 
time to time be prescribed by the Attorney General.
    (b) Matter contained in any part of the registration statement or 
other document may not be incorporated by reference as answer, or 
partial answer, to any other item in the registration statement required 
to be filed under the act.
    (c) Except as specifically provided otherwise, if any item on the 
form is inapplicable, or the answer is ``None,'' an express statement to 
such effect shall be made.
    (d) Every statement, amendment, and every duplicate thereof, shall 
be executed under oath and shall be sworn to before a notary public or 
other officer authorized to administer oaths.
    (e) A registration statement or amendment thereof required to be 
filed shall, if possible, be typewritten, but will be regarded as in 
substantial compliance with this regulation if written legibly in black 
ink.
    (f) Riders shall not be used. If the space on the registration 
statement or other form is insufficient for any answer, reference shall 
be made in the appropriate space to a full insert page or pages on which 
the item number and item shall be restated and the complete answer 
given.



Sec. 12.25   Amended registration statement.

    (a) An amended registration statement may be required by the Chief, 
Registration Unit, of any person subject to the registration provisions 
of the act whose original registration statement filed pursuant thereto 
is deemed to be incomplete, inaccurate, false, or misleading.
    (b) Amendments shall conform in all respects to the regulations 
herein prescribed governing execution and filing of original 
registration statements.
    (c) Amendments shall in every case make appropriate reference by 
number or otherwise to the items in original registration statements to 
which they relate.
    (d) Amendments shall be deemed to have been filed upon the receipt 
thereof by the Registration Unit.
    (e) Failure of the Chief, Registration Unit, to request any person 
described in section 2 of the act to file an amended registration 
statement shall not preclude prosecution of such person for a wilfully 
false statement of a material fact, the wilful omission of a material 
fact, or the wilful omission of a material fact necessary to make the 
statements therein not misleading, in an original registration 
statement.

[21 FR 5928, Aug. 8, 1956, as amended by Order No. 524-73, 38 FR 18235, 
July 9, 1973]



Sec. 12.30   Burden of establishing availability of exemptions.

    In all matters pertaining to exemptions, the burden of establishing 
the availability of the exemption shall rest with the person for whose 
benefit the exemption is claimed.

[[Page 201]]



Sec. 12.40   Public examination.

    Registration statements shall be available for public examination at 
the offices of the Registration Unit, Department of Justice, Washington, 
DC, from 10 a.m. to 4 p.m. on each official business day, except to the 
extent that the Attorney General having due regard for national security 
and public interest may withdraw such statements from public 
examination.

[Order No. 524-73, 38 FR 18235, July 9, 1973]



Sec. 12.41   Photocopies.

    (a) Photocopies of registration statements filed in accordance with 
section 2 of the act are available to the public upon payment of fifty 
cents per photocopy of each page, whether several copies of a single 
original page or one or more copies of several original pages are 
ordered.
    (b) Estimates as to prices for photocopies and the time required for 
their preparation will be furnished upon request addressed to the 
Registration Unit, Internal Security Section, Criminal Division, 
Department of Justice, Washington, DC 20530.
    (c) Payment shall accompany the order for photocopies and shall be 
made in cash, or by United States money order, or by certified bank 
check payable to the Treasurer of the United States. Postage stamps will 
not be accepted.

[21 FR 5928, Aug. 8, 1956, as amended by Order No. 524-73, 38 FR 18235, 
July 9, 1973]



Sec. 12.70   Partial compliance not deemed compliance.

    The fact that a registration statement has been filed shall not 
necessarily be deemed a full compliance with the act on the part of the 
registrant; nor shall it preclude prosecution, as provided for in the 
act, for willful failure to file a registration statement, or for a 
willfully false statement of a material fact therein, or for the willful 
omission of a material fact required to be stated therein.



PART 13--ATOMIC WEAPONS AND SPECIAL NUCLEAR MATERIALS REWARDS REGULATIONS--Table of Contents




Sec.
13.1  Purpose.
13.2  Policy.
13.3  Definitions.
13.4  Procedures: Responsibilities of the Attorney General.
13.5  Procedures: Responsibilities of the intra-departmental committee.
13.6  Criteria for reward.
13.7  Judicial review.

    Authority: 50 U.S.C. 47d.

    Source: Order No. 974-82, 47 FR 11516, Mar. 17, 1982, unless 
otherwise noted.



Sec. 13.1  Purpose.

    This part implements the responsibility given to the Attorney 
General under the Atomic Weapons and Special Nuclear Materials Rewards 
Act, 50 U.S.C. 47a-47f, for determining what persons are entitled to a 
reward for furnishing certain original information to the United States 
pertaining to atomic weapons and special nuclear material.



Sec. 13.2  Policy.

    This program is intended to reward the provision of original 
information regarding situations involving an illegal diversion, an 
attempted illegal diversion, or a conspiracy to divert special nuclear 
material or atomic weapons. The broad scope of this program is to help 
guard against the loss or diversion of such material and to prevent any 
use or disposition thereof inimical to the common defense and security.



Sec. 13.3  Definitions.

    Atomic energy means all forms of energy released in the course of 
nuclear fission or nuclear transformation.
    Atomic weapon means any device utilizing atomic energy, exclusive of 
the means for transporting or propelling the device (where such means is 
a separable and divisible part of the device), the principal purpose of 
which is for use as, or for development of, a weapon, a weapon 
prototype, or a weapon test device.

[[Page 202]]

    Original information means information first supplied to the Federal 
government by the applicant, which was created or compiled through his 
own skill and judgment.
    Special nuclear material means plutonium, or uranium enriched in the 
isotope 233 or in the isotope 235, or any other material which is found 
to be special nuclear material pursuant to the provisions of the Atomic 
Energy Act of 1954, 42 U.S.C. 2011 et seq.
    United States, when used in a geographical sense, includes Puerto 
Rico, all Territories and possessions of the United States and the Canal 
Zone except in Sec. 13.4(a)(4). In Sec. 13.4(a)(4), United States, when 
used in a geographical sense, means the continental United States, 
Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United 
States.



Sec. 13.4  Procedures: Responsibilities of the Attorney General.

    When a submission is made to the Department of Justice for a reward 
under the Atomic Weapons and Special Nuclear Materials Rewards Act, the 
Attorney General shall:
    (a) Refer such submission for review to an intra-departmental 
committee composed of the Assistant Attorneys General for the Land and 
Natural Resources Division, the Criminal Division, and the Office of 
Legal Counsel or their delegates;
    (b) Review the proposed finding of the review committee and 
determine whether a reward is justified and the amount of same;
    (c) Secure the approval of the President for any reward over 
$50,000;
    (d) Jointly determine (along with the Secretary of State and the 
Director of Central Intelligence), if the award is to go to an alien, 
whether the entry of such alien into the United States is in the public 
interest and whether that alien and members of his immediate family may 
receive immigrant visas and be admitted to the United States for 
permanent residence, notwithstanding the requirements of the Immigration 
and Nationality Act;
    (e) Notify any person claiming an award of the determination 
regarding the claim and the amount of the reward, if any. If no reward 
is determined to be justified, state the reasons, consistent with 
national security, for the denial;
    (f) Certify and transmit, along with the approval of the President 
if necessary, any award to be made to the Director of Central 
Intelligence for payment out of funds appropriated or available for the 
administration of the National Security Act of 1947, as amended, 50 
U.S.C. 401 et seq;
    (g) Not certify any amount over $500,000.



Sec. 13.5  Procedures: Responsibilities of the intra-departmental committee.

    When the Attorney General refers a submission for a reward to the 
intra-departmental committee, this committee:
    (a) Shall consult with the Nuclear Regulatory Commission and the 
Department of Energy regarding the reward;
    (b) May consult with the Central Intelligence Agency and any other 
departments or agencies it deems appropriate to aid in the determination 
of whether a reward should be given and the proper amount of the reward;
    (c) May hold hearings for the purpose of securing and evaluating 
information; a full hearing on the record with oral presentation and 
cross-examination is not required;
    (d) Shall determine whether the information submitted fits one or 
more of the rewardable categories outlined in Sec. 13.6;
    (e) Shall determine whether the applicant is eligible for the 
reward. Federal employees and military personnel whose duties include 
investigating activities covered by this Act are not eligible for a 
reward for information acquired in the course of their investigation;
    (f) Shall submit to the Attorney General a proposed finding as to 
eligibility and a recommendation for the amount of the reward within 60 
days of the date of referral from the Attorney General, unless good 
cause is shown for extending the time of review.



Sec. 13.6  Criteria for reward.

    (a) Information provided by any person to the United States for a 
reward under the Atomic Weapons and Special

[[Page 203]]

Nuclear Materials Rewards Act must be original, and must concern the 
unlawful:
    (1) Introduction, manufacture or acquisition, or
    (2) Attempted introduction, manufacture or acquisition of, or
    (3) Export or attempt to export, or
    (4) Conspiracy to introduce, manufacture, acquire or export special 
nuclear material or atomic weapons, or
    (5) Loss, diversion or disposal or special nuclear material or 
atomic weapons.
    (b) The amount of the reward shall depend on:
    (1) The amount of the material recovered or potentially recoverable, 
and the role the information played in the recovery, and
    (2) The danger the material posed or poses to the common defense and 
security or public health and welfare, and
    (3) The difficulty in ascertaining the information submitted to 
claim the reward, and the quality of the information, and
    (4) Any other considerations which the Attorney General or the 
intra-departmental committee deems necessary or helpful to the 
individual determination.



Sec. 13.7  Judicial review.

    The decision of the Attorney General is final and conclusive and no 
court shall have power or jurisdiction to review it.



PART 14--ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT--Table of Contents




Sec.
14.1  Scope of regulations.
14.2  Administrative claim; when presented.
14.3  Administrative claim; who may file.
14.4  Administrative claims; evidence and information to be submitted.
14.5  Review by legal officers.
14.6  Dispute resolution techniques and limitations on agency authority.
14.7  [Reserved]
14.8  Investigation and examination.
14.9  Final denial of claim.
14.10  Action on approved claims.
14.11  Supplementing regulations.

Appendix to Part 14--Delegations of Settlement Authority

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 2672; 38 U.S.C. 224(a).

    Source: Order No. 371-66, 31 FR 16616, Dec. 29, 1966, unless 
otherwise noted.



Sec. 14.1   Scope of regulations.

    These regulations shall apply only to claims asserted under the 
Federal Tort Claims Act. The terms Federal agency and agency, as used in 
this part, include the executive departments, the military departments, 
independent establishments of the United States, and corporations 
primarily acting as instrumentalities or agencies of the United States 
but do not include any contractor with the United States.

[Order No. 960-81, 46 FR 52355, Oct. 27, 1981]



Sec. 14.2  Administrative claim; when presented.

    (a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 
2675, a claim shall be deemed to have been presented when a Federal 
agency receives from a claimant, his duly authorized agent or legal 
representative, an executed Standard Form 95 or other written 
notification of an incident, accompanied by a claim for money damages in 
a sum certain for injury to or loss of property, personal injury, or 
death alleged to have occurred by reason of the incident; and the title 
or legal capacity of the person signing, and is accompanied by evidence 
of his authority to present a claim on behalf of the claimant as agent, 
executor, administrator, parent, guardian, or other representative.
    (b)(1) A claim shall be presented to the Federal agency whose 
activities gave rise to the claim. When a claim is presented to any 
other Federal agency, that agency shall transfer it forthwith to the 
appropriate agency, if the proper agency can be identified from the 
claim, and advise the claimant of the transfer. If transfer is not 
feasible the claim shall be returned to the claimant. The fact of 
transfer shall not, in itself, preclude further transfer, return of the 
claim to the claimant or other appropriate disposition of the claim. A 
claim shall be presented as required by 28 U.S.C. 2401(b) as of the date 
it is received by the appropriate agency.
    (2) When more than one Federal agency is or may be involved in the 
events giving rise to the claim, an agency with which the claim is filed

[[Page 204]]

shall contact all other affected agencies in order to designate the 
single agency which will thereafter investigate and decide the merits of 
the claim. In the event that an agreed upon designation cannot be made 
by the affected agencies, the Department of Justice shall be consulted 
and will thereafter designate an agency to investigate and decide the 
merits of the claim. Once a determination has been made, the designated 
agency shall notify the claimant that all future correspondence 
concerning the claim shall be directed to that Federal agency. All 
involved Federal agencies may agree either to conduct their own 
administrative reviews and to coordinate the results or to have the 
investigations conducted by the designated Federal agency, but, in 
either event, the designated Federal agency will be responsible for the 
final determination of the claim.
    (3) A claimant presenting a claim arising from an incident to more 
than one agency should identify each agency to which the claim is 
submitted at the time each claim is presented. Where a claim arising 
from an incident is presented to more than one Federal agency without 
any indication that more than one agency is involved, and any one of the 
concerned Federal agencies takes final action on that claim, the final 
action thus taken is conclusive on the claims presented to the other 
agencies in regard to the time required for filing suit set forth in 28 
U.S.C. 2401(b). However, if a second involved Federal agency 
subsequently desires to take further action with a view towards settling 
the claim the second Federal agency may treat the matter as a request 
for reconsideration of the final denial under 28 CFR 14.9(b), unless 
suit has been filed in the interim, and so advise the claimant.
    (4) If, after an agency final denial, the claimant files a claim 
arising out of the same incident with a different Federal agency, the 
new submission of the claim will not toll the requirement of 28 U.S.C. 
2401(b) that suit must be filed within six months of the final denial by 
the first agency, unless the second agency specifically and explicitly 
treats the second submission as a request for reconsideration under 28 
CFR 14.9(b) and so advises the claimant.
    (c) A claim presented in compliance with paragraph (a) of this 
section may be amended by the claimant at any time prior to final agency 
action or prior to the exercise of the claimant's option under 28 U.S.C. 
2675(a). Amendments shall be submitted in writing and signed by the 
claimant or his duly authorized agent or legal representative. Upon the 
timely filing of an amendment to a pending claim, the agency shall have 
six months in which to make a final disposition of the claim as amended 
and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 
six months after the filing of an amendment.

[Order No. 870-79, 45 FR 2650, Jan. 14, 1980, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981; Order No. 1179-87, 52 FR 7411, Mar. 
11, 1987]



Sec. 14.3   Administrative claim; who may file.

    (a) A claim for injury to or loss of property may be presented by 
the owner of the property, his duly authorized agent or legal 
representative.
    (b) A claim for personal injury may be presented by the injured 
person, his duly authorized agent, or legal representative.
    (c) A claim based on death may be presented by the executor or 
administrator of the decendent's estate, or by any other person legally 
entitled to assert such a claim in accordance with applicable State law.
    (d) A claim for loss wholly compensated by an insurer with the 
rights of a subrogee may be presented by the insurer. A claim for loss 
partially compensated by an insurer with the rights of a subrogee may be 
presented by the parties individually as their respective interests 
appear, or jointly.

[Order No. 371-66, 31 FR 16616, Dec. 29, 1966, as amended by Order No. 
1179-87, 52 FR 7412, Mar. 11, 1987]



Sec. 14.4   Administrative claims; evidence and information to be submitted.

    (a) Death. In support of a claim based on death, the claimant may be 
required to submit the following evidence or information:

[[Page 205]]

    (1) An authenticated death certificate or other competent evidence 
showing cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at time of death, including 
his monthly or yearly salary or earnings (if any), and the duration of 
his last employment or occupation.
    (3) Full names, addresses, birth dates, kinship, and marital status 
of the decedent's survivors, including identification of those survivors 
who were dependent for support upon the decedent at the time of his 
death.
    (4) Degree of support afforded by the decedent to each survivor 
dependent upon him for support at the time of his death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills for medical and burial expenses incurred by 
reason of the incident causing death, or itemized receipts of payment 
for such expenses.
    (7) If damages for pain and suffering prior to death are claimed, a 
physician's detailed statement specifying the injuries suffered, 
duration of pain and suffering, any drugs administered for pain, and the 
decedent's physical condition in the interval between injury and death.
    (8) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the death or the 
damages claimed.
    (b) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit the 
following evidence or information:
    (1) A written report by his attending physician or dentist setting 
forth the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, and any diminished earning 
capacity. In addition, the claimant may be required to submit to a 
physical or mental examination by a physician employed by the agency or 
another Federal agency. A copy of the report of the examining physician 
shall be made available to the claimant upon the claimant's written 
request provided that he has, upon request, furnished the report 
referred to in the first sentence of this paragraph and has made or 
agrees to make available to the agency any other physician's reports 
previously or thereafter made of the physical or mental condition which 
is the subject matter of his claim.
    (2) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payment for such expenses.
    (3) If the prognosis reveals the necessity for future treatment, a 
statement of expected expenses for such treatment.
    (4) If a claim is made for loss of time from employment, a written 
statement from his employer showing actual time lost from employment, 
whether he is a full or part-time employee, and wages or salary actually 
lost.
    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amounts of earnings actually 
lost.
    (6) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the personal injury 
or the damages claimed.
    (c) Property damage. In support of a claim for injury to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information:
    (1) Proof of ownership.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) An itemized receipt of payment for necessary repairs or itemized 
written estimates of the cost of such repairs.
    (4) A statement listing date of purchase, purchase price and salvage 
value, where repair is not economical.
    (5) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the injury to or loss 
of property or the damages claimed.



Sec. 14.5   Review by legal officers.

    The authority to adjust, determine, compromise, and settle a claim 
under the provisions of section 2672 of title 28, United States Code, 
shall, if the amount of a proposed compromise, settlement, or award 
exceeds $5,000, be exercised by the head of an agency or his

[[Page 206]]

designee only after review by a legal officer of the agency.

[Order No. 371-66, 31 FR 16616, Dec. 29, 1966, as amended by Order No. 
757-77, 42 FR 62001, Dec. 8, 1977; Order No. 960-81, 46 FR 52355, Oct. 
27, 1981]



Sec. 14.6  Dispute resolution techniques and limitations on agency authority.

    (a) Guidance regarding dispute resolution. The administrative 
process established pursuant to 28 U.S.C. 2672 and this part 14 is 
intended to serve as an efficient effective forum for rapidly resolving 
tort claims with low costs to all participants. This guidance is 
provided to agencies to improve their use of this administrative process 
and to maximize the benefit achieved through application of prompt, 
fair, and efficient techniques that achieve an informal resolution of 
administrative tort claims without burdening claimants or the agency. 
This section provides guidance to agencies only and does not create or 
establish any right to enforce any provision of this part on behalf of 
any claimant against the United States, its agencies, its officers, or 
any other person. This section also does not require any agency to use 
any dispute resolution technique or process.
    (1) Whenever feasible, administrative claims should be resolved 
through informal discussions, negotiations, and settlements rather than 
through the use of any formal or structured process. At the same time, 
agency personnel processing administrative tort claims should be trained 
in dispute resolution techniques and skills that can contribute to the 
prompt, fair, and efficient resolution of administrative claims.
    (2) An agency may resolve disputed factual questions regarding 
claims against the United States under the FTCA, including 28 U.S.C. 
2671-2680, through the use of any alternative dispute resolution 
technique or process if the agency specifically agrees to employ the 
technique or process, and reserves to itself the discretion to accept or 
reject the determinations made through the use of such technique or 
process.
    (3) Alternative dispute resolution techniques or processes should 
not be adopted arbitrarily but rather should be based upon a 
determination that use of a particular technique is warranted in the 
context of a particular claim or claims, and that such use will 
materially contribute to the prompt, fair, and efficient resolution of 
the claims. If alternative dispute resolution techniques will not 
materially contribute to the prompt, fair, and efficient resolution of 
claims, the dispute resolution processes otherwise used pursuant to 
these regulations shall be the preferred means of seeking resolution of 
such claims.
    (b) Alternative dispute resolution--(1) Case-by-case. In order to 
use, and before using, any alternative dispute resolution technique or 
process to facilitate the prompt resolution of disputes that are in 
excess of the agency's delegated authority, an agency may use the 
following procedure to obtain written approval from the Attorney 
General, or his or her designee, to compromise a claim or series of 
related claims.
    (i) A request for settlement authority under paragraph (b)(1) of 
this section shall be directed to the Director, Torts Branch, Civil 
Division, Department of Justice, (``Director'') and shall contain 
information justifying the request, including:
    (A) The basis for concluding that liability exists under the FTCA;
    (B) A description of the proposed alternative dispute resolution 
technique or process and a statement regarding why this proposed form of 
alternative dispute resolution is suitable for the claim or claims;
    (C) A statement reflecting the claimant's or claimants' consent to 
use of the proposed form of alternative dispute resolution, indicating 
the proportion of any additional cost to the United States from use of 
the proposed alternative dispute resolution technique or process that 
shall be borne by the claimant or claimants, and specifying the manner 
and timing of payment of that proportion to be borne by the claimant or 
claimants;
    (D) A statement of how the requested action would facilitate use of 
an alternative dispute resolution technique or process;

[[Page 207]]

    (E) An explanation of the extent to which the decision rendered in 
the alternative dispute resolution proceeding would be made binding upon 
claimants; and,
    (F) An estimate of the potential range of possible settlements 
resulting from use of the proposed alternative dispute resolution 
technique.
    (ii) The Director shall forward a request for expedited settlement 
action under paragraph (b)(1)(i) of this section, along with the 
Director's recommendation as to what action should be taken, to the 
Department of Justice official who has authority to authorize settlement 
of the claim or related claims. If that official approves the request, a 
written authorization shall be promptly forwarded to the requesting 
agency.
    (2) Delegation of authority. Pursuant to, and within the limits of, 
28 U.S.C. 2672, the head of an agency or his or her designee may request 
delegations of authority to make any award, compromise, or settlement 
without the prior written approval of the Attorney General or his or her 
designee in excess of the agency's authority. In considering whether to 
delegate authority pursuant to 28 U.S.C. 2672 in excess of previous 
authority conferred upon the agency, consideration shall be given to:
    (i) The extent to which the agency has established an office whose 
responsibilities expressly include the administrative resolution of 
claims presented pursuant to the Federal Tort Claims Act;
    (ii) The agency's experience with the resolution of administrative 
claims presented pursuant to 28 U.S.C. 2672;
    (iii) The Department of Justice's experiences with regard to 
administrative resolution of tort claims arising out of the agency's 
activities.
    (c) Monetary authority. An award, compromise, or settlement of a 
claim by an agency under 28 U.S.C. 2672, in excess of $25,000 or in 
excess of the authority delegated to the agency by the Attorney General 
pursuant to 28 U.S.C. 2672, whichever is greater, shall be effected only 
with the prior written approval of the Attorney General or his or her 
designee. For purposes of this paragraph, a principal claim and any 
derivative or subrogated claim shall be treated as a single claim.
    (d) Limitations on settlement authority--(1) Policy. An 
administrative claim may be adjusted, determined, compromised, or 
settled by an agency under 28 U.S.C. 2672 only after consultation with 
the Department of Justice when, in the opinion of the agency:
    (i) A new precedent or a new point of law is involved; or
    (ii) A question of policy is or may be involved; or
    (iii) The United States is or may be entitled to indemnity or 
contribution from a third party and the agency is unable to adjust the 
third party claim; or
    (iv) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $25,000 or may exceed the authority 
delegated to the agency by the Attorney General pursuant to 28 U.S.C. 
2672, whichever is greater.
    (2) Litigation arising from the same incident. An administrative 
claim may be adjusted, determined, compromised, or settled by an agency 
under 28 U.S.C. 2672 only after consultation with the Department of 
Justice when the agency is informed or is otherwise aware that the 
United States or an employee, agent, or cost-plus contractor of the 
United States is involved in litigation based on a claim arising out of 
the same incident or transaction.
    (e) Procedure. When Department of Justice approval or consultation 
is required, or the advice of the Department of Justice is otherwise to 
be requested, under this section, the written referral or request of the 
Federal agency shall be directed to the Director at any time after 
presentment of a claim to the Federal agency, and shall contain:
    (1) A short and concise statement of the facts and of the reasons 
for the referral or request;
    (2) Copies of relevant portions of the agency's claim file; and
    (3) A statement of the recommendations or views of the agency.

[Order No. 1591-92, 57 FR 21738, May 22, 1992]

[[Page 208]]

Sec. 14.7  [Reserved]



Sec. 14.8   Investigation and examination.

    A Federal agency may request any other Federal agency to investigate 
a claim filed under section 2672, title 28, U.S. Code, or to conduct a 
physical examination of a claimant and provide a report of the physical 
examination. Compliance with such requests may be conditioned by a 
Federal agency upon reimbursement by the requesting agency of the 
expense of investigation or examination where reimbursement is 
authorized, as well as where it is required, by statute or regulation.



Sec. 14.9   Final denial of claim.

    (a) Final denial of an administrative claim shall be in writing and 
sent to the claimant, his attorney, or legal representative by certified 
or registered mail. The notification of final denial may include a 
statement of the reasons for the denial and shall include a statement 
that, if the claimant is dissatisfied with the agency action, he may 
file suit in an appropriate U.S. District Court not later than 6 months 
after the date of mailing of the notification.
    (b) Prior to the commencement of suit and prior to the expiration of 
the 6-month period provided in 28 U.S.C. 2401(b), a claimant, his duly 
authorized agent, or legal representative, may file a written request 
with the agency for reconsideration of a final denial of a claim under 
paragraph (a) of this section. Upon the timely filing of a request for 
reconsideration the agency shall have 6 months from the date of filing 
in which to make a final disposition of the claim and the claimant's 
option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the 
filing of a request for reconsideration. Final agency action on a 
request for reconsideration shall be effected in accordance with the 
provisions of paragraph (a) of this section.

[Order No. 371-66, 31 FR 16616, Dec. 29, 1966, as amended by Order No. 
422-69, 35 FR 315, Jan. 8, 1970]



Sec. 14.10   Action on approved claims.

    (a) Any award, compromise, or settlement in an amount of $2,500 or 
less made pursuant to 28 U.S.C. 2672 shall be paid by the head of the 
Federal agency concerned out of the appropriations available to that 
agency. Payment of an award, compromise, or settlement in excess of 
$2,500 shall be obtained by the agency by forwarding Standard Form 1145 
to the Claims Division, General Accounting Office. When an award is in 
excess of $25,000, or in excess of the authority delegated to the agency 
by the Attorney General pursuant to 28 U.S.C. 2672, whichever is 
greater, Standard Form 1145 must be accompanied by evidence that the 
award, compromise, or settlement has been approved by the Attorney 
General or his designee. When the use of Standard Form 1145 is required, 
it shall be executed by the claimant, or it shall be accompanied by 
either a claims settlement agreement or a Standard Form 95 executed by 
the claimant. When a claimant is represented by an attorney, the voucher 
for payment shall designate both the claimant and his attorney as 
payees; the check shall be delivered to the attorney, whose address 
shall appear on the voucher.
    (b) Acceptance by the claimant, his agent, or legal representative, 
of any award, compromise or settlement made pursuant to the provisions 
of section 2672 or 2677 of title 28, United States Code, shall be final 
and conclusive on the claimant, his agent or legal representative and 
any other person on whose behalf or for whose benefit the claim has been 
presented, and shall constitute a complete release of any claim against 
the United States and against any employee of the Government whose act 
or omission gave rise to the claim, by reason of the same subject 
matter.

[Order No. 371-66, 31 FR 16616, Dec. 29, 1966, as amended by Order No. 
834-79, 44 FR 33399, June 11, 1979; Order No. 1591-92, 57 FR 21740, May 
22, 1992]



Sec. 14.11   Supplementing regulations.

    Each agency is authorized to issue regulations and establish 
procedures

[[Page 209]]

consistent with the regulations in this part.

        Appendix to Part 14--Delegations of Settlement Authority

      Delegation of Authority to the Secretary of Veterans Affairs

             Section 1. Authority to compromise tort claims.

    (a) The Secretary of Veterans Affairs shall have the authority to 
adjust, determine, compromise and settle a claim involving the United 
States Department of Veterans Affairs under section 2672 of title 28, 
United States Code, relating to the administrative settlement of federal 
tort claims, if the amount of the proposed adjustment, compromise, or 
award does not exceed $200,000. When the Secretary of Veterans Affairs 
believes a claim pending before him presents a novel question of law or 
of policy, he shall obtain the advice of the Assistant Attorney General 
in charge of the Civil Division.
    (b) The Secretary of Veterans Affairs may redelegate in writing the 
settlement authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Secretary of Veterans Affairs settles any 
administrative claim pursuant to the authority granted by section 1 for 
an amount in excess of $100,000 and within the amount delegated to him 
under section 1, a memorandum fully explaining the basis for the action 
taken shall be executed. A copy of this memorandum shall be sent to the 
Director, FTC Staff, Torts Branch of the Civil Division.

            Delegation of Authority to the Postmaster General

             Section 1. Authority to compromise tort claims.

    (a) The Postmaster General shall have the authority to adjust, 
determine, compromise and settle a claim involving the Postal Service 
under section 2672 of title 28, United States Code, relating to the 
administrative settlement of federal tort claims, if the amount of the 
proposed adjustment, compromise, or award does not exceed $200,000. When 
the Postmaster General believes a claim pending before him presents a 
novel question of law or of policy, he shall obtain the advice of the 
Assistant Attorney General in charge of the Civil Division.
    (b) The Postmaster General may redelegate in writing the settlement 
authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Postmaster General settles any administrative claim 
pursuant to the authority granted by section 1 for an amount in excess 
of $100,000 and within the amount delegated to him under section 1, a 
memorandum fully explaining the basis for the action taken shall be 
executed. A copy of this memorandum shall be sent to the Director, FTCA 
Staff, Torts Branch of the Civil Division.

           Delegation of Authority to the Secretary of Defense

             Section 1. Authority to compromise tort claims.

    (a) The Secretary of Defense shall have the authority to adjust, 
determine, compromise and settle a claim involving the United States 
Department of Defense under section 2672 of title 28, United States 
Code, relating to the administrative settlement of federal tort claims, 
if the amount of the proposed adjustment, compromise, or award does not 
exceed $200,000. When the Secretary of Defense believes a claim pending 
before him presents a novel question of law or of policy, he shall 
obtain the advice of the Assistant Attorney General in charge of the 
Civil Division.
    (b) The Secretary of Defense may redelegate in writing the 
settlement authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Secretary of Defense settles any administrative claim 
pursuant to the authority granted by section 1 for an amount in excess 
of $100,000 and within the amount delegated to him under section 1, a 
memorandum fully explaining the basis for the action taken shall be 
executed. A copy of this memorandum shall be sent to the Director, FTCA 
Staff, Torts Branch of the Civil Division.

       Delegation of Authority to the Secretary of Transportation

             Section 1. Authority to compromise tort claims.

    (a) The Secretary of Transportation shall have the authority to 
adjust, determine, compromise and settle a claim involving the United 
States Department of Transportation under section 2672 of title 28, 
United States Code, relating to the administrative settlement of federal 
tort claims, if the amount of the proposed adjustment, compromise, or 
award does not exceed $100,000. When the Secretary of Transportation 
believes a claim pending before him presents a novel question of law or 
of policy, he shall obtain the advice

[[Page 210]]

of the Assistant Attorney General in charge of the Civil Division.
    (b) The Secretary of Transportation may redelegate in writing the 
settlement authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Secretary of Transportation settles any administrative 
claim pursuant to the authority granted by section 1 for an amount in 
excess of $50,000 and within the amount delegated to him under section 
1, a memorandum fully explaining the basis for the action taken shall be 
executed. A copy of this memorandum shall be sent to the Director, FTCA 
Staff, Torts Branch of the Civil Division.

[Order No. 1302-88, 53 FR 37753, Sept. 28, 1988, as amended by Order No. 
1471-91, 56 FR 4943, Feb. 7, 1991; Order No. 1482-91, 56 FR 12846, Mar. 
28, 1991; Order No. 1583-92, 57 FR 13320, Apr. 16, 1992; 58 FR 36867, 
July 9, 1993; 61 FR 66220, Dec. 17, 1996]



PART 15--DEFENSE OF CERTAIN SUITS AGAINST FEDERAL EMPLOYEES: CERTIFICATION AND DEFENSE OF CERTAIN SUITS AGAINST PROGRAM PARTICIPANTS UNDER THE NATIONAL SWINE 

FLU IMMUNIZATION PROGRAM OF 1976, AND CERTIFICATION AND DECERTIFICATION OF CERTAIN SUITS BASED UPON ACTS OR OMISSIONS OF CONTRACTORS IN CARRYING OUT AN ATOMIC WEAPONS TESTING PROGRAM UNDER A CONTRACT WITH THE UNITED STATES--Table of Contents






Sec.
15.1  Expeditious delivery of process and pleadings.
15.2  Providing data bearing upon scope of employment or program 
          participant status.
15.3  Removal and defense of suits.

Appendix to Part 15

    Authority: 5 U.S.C. 301; 10 U.S.C. 1089; 22 U.S.C. 817; 28 U.S.C. 
509, 510 and 2679; 38 U.S.C. 4116; 42 U.S.C. 233, 247b and 2458a, and 
the Department of Defense Authorization Act of 1985.

    Cross Reference: For Organization Statement, Civil Division, see 
subpart I of part 0 of this chapter.



Sec. 15.1   Expeditious delivery of process and pleadings.

    (a) Any Federal employee against whom a civil action or proceeding 
is brought for damages to property, or for personal injury or death, on 
account of the employee's operation of a motor vehicle in the scope of 
his office or employment with the Federal Government or on account of 
the employee's performance of medical care, treatment, or investigation 
in the scope of his office or employment with the Public Health Service 
or the Veterans Administration Department of Medicine and Surgery, the 
Department of State (including the Agency for International 
Development), the Armed Forces, the Department of Defense, the Central 
Intelligence Agency, or the National Aeronautics and Space 
Administration shall promptly deliver all process and pleadings served 
upon the employee, or an attested true copy thereof, to the employee's 
immediate superior or to whoever is designated by the head of the 
employee's department or agency to receive such papers. If the action is 
brought against an employee's estate this procedure shall apply to the 
employee's personal representative. In addition, upon the employee's 
receipt of such process or pleadings, or any prior information regarding 
the commencement of such a civil action or proceeding, he shall 
immediately so advise his superior or the designee thereof by telephone 
or telegraph. The superior or designee shall furnish the U.S. Attorney 
for the district embracing the place wherein the action or proceeding is 
brought and the Branch Director of the Torts Branch, Civil Division, 
Department of Justice, information concerning the commencement of such 
action or proceeding, and copies of all process and pleadings therein.
    (b) Any program participant as that term is defined in 42 U.S.C. 
247b(k)(2)(B) against whom a civil action or proceeding is brought for 
damages for personal injury or wrongful death on account of the 
administration of swine flu vaccine under the National Swine Flu 
Immunization Program of 1976 (or the personal representative or 
successor of such program participant,

[[Page 211]]

if the action is brought against the estate or successor of such program 
participant) shall promptly deliver all process and pleadings served 
upon such program participant, or an attested true copy thereof, to the 
Branch Director, Torts Branch, Civil Division, U.S. Department of 
Justice, Washington, DC 20530, and to the Department Claims Officer, 
Office of the General Counsel, Department of Health, Education and 
Welfare, Washington, DC 20201. The Branch Director shall promptly 
furnish copies of the papers to the U.S. Attorney for the district 
embracing the place wherein the action or proceeding is brought.
    (c) Any person against whom an action for injury, loss of property, 
personal injury, or death has been brought due to exposure to radiation 
based on acts or omissions by a contractor, as defined in section 
1631(d) of the Department of Defense Authorization Act of 1985, in 
carrying out an atomic weapons testing program under a contract with the 
United States, shall promptly deliver all process and pleadings served 
upon such person, or an attested true copy thereof, to the Branch 
Director, Torts Branch, Civil Division, U.S. Department of Justice, 
Washington, DC 20530.

[42 FR 15409, Mar. 22, 1977; 42 FR 17111, Mar. 31, 1977, as amended at 
46 FR 52355, Oct. 27, 1981; Order No. 1074-84, 49 FR 44995, Nov. 14, 
1984]



Sec. 15.2   Providing data bearing upon scope of employment or program participant status.

    (a) The employee's employing Federal agency shall submit a report 
containing all data bearing upon the question whether the employee was 
acting within the scope of his office or employment with the Federal 
Government, at the time of the incident out of which the suit arose, to 
the United States Attorney for the district embracing the place wherein 
the civil action or proceeding is brought, with a copy of the report to 
the Branch Director of the Torts Branch, Civil Division, Department of 
Justice, at the earliest possible date, or within such time as shall be 
fixed by the U.S. Attorney upon request.
    (b) A program participant as that term is defined in 42 U.S.C. 
247b(k)(2)(B) shall deliver all information in the participant's 
possession or reasonably available to the participant concerning the 
participant's status as a program participant to the Branch Director, 
Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC 
20530, upon request and within such time as shall be fixed.
    (c) A person against whom an action has been brought for injury, 
loss of property, personal injury, or death due to exposure to radiation 
based on acts or omissions by a contractor, as defined in section 
1631(d) of the Department of Defense Authorization Act of 1985, in 
carrying out an atomic weapons testing program under a contract with the 
United States, shall deliver all information in the person's possession 
or reasonably available to the person concerning (1) the person's status 
as a contractor within the meaning of section 1631(d) of the Department 
of Defense Authorization Act of 1985; (2) the relation, if any, of the 
civil action or injury, loss of property, personal injury, or death due 
to exposure to radiation to acts or omissions by a contractor in 
carrying out an atomic weapons testing program under a contract with the 
United States; and (3) the subject matter of the action to the Branch 
Director, Torts Branch, Civil Division, U.S. Department of Justice, 
Washington, DC 20530, upon request within such time as shall be fixed 
and shall cooperate with the Justice Department in defense of said 
action upon request following certification of an action pursuant to 
section 1631(b) of the Department of Defense Authorization Act of 1985.

[Order No. 254-61, 26 FR 11420, Dec. 2, 1961, as amended at 42 FR 15410, 
Mar. 22, 1977; Order No. 960-81, 46 FR 52355, Oct. 27, 1981; Order No. 
1074-84, 49 FR 44995, Nov. 14, 1984]



Sec. 15.3   Removal and defense of suits.

    (a) The U.S. Attorneys are authorized to make the certifications 
provided for in 10 U.S.C. 1089(c), 22 U.S.C. 817(c), 28 U.S.C. 2679(d), 
38 U.S.C. 4116(c), and 42 U.S.C. 233(c) and 2458a(c) with respect to 
civil actions or proceedings brought against Federal employees in their 
respective districts. Such a certification

[[Page 212]]

may be withdrawn if a further evaluation of the relevant facts or the 
consideration of new or additional evidence calls for such action. The 
making, withholding, or withdrawing of certifications, and the removal 
and defense of, or the refusal to remove and defend, such civil actions 
or proceedings by the U.S. Attorneys shall be subject to the 
instructions and supervision of the Assistant Attorney General in charge 
of the Civil Division.
    (b) The Assistant Attorney General in charge of the Civil Division 
is authorized:
    (1) To make the certification provided for in 42 U.S.C. 247b(k)(5) 
with respect to civil actions or proceedings brought against program 
participants in various courts of law;
    (2) To withdraw that certification if further evaluation of the 
relevant facts or the consideration of new or additional evidence calls 
for such action;
    (3) To move to revoke such certification pursuant to 42 U.S.C. 
247b(k)(6) should the facts warrant; and
    (4) To redelegate to subordinate division officials the authority 
delegated by this paragraph, provided that such redelegation shall be in 
writing and shall be approved by the Associate Attorney General before 
becoming effective.
    (c) The Assistant Attorney General in charge of the Civil Division 
is authorized:
    (1) To make the certification provided for in section 1631(b) of the 
Department of Defense Authorization Act of 1985, with respect to civil 
actions or proceedings brought against persons for injury, loss of 
property, personal injury or death due to exposure to radiation based on 
acts or omissions by a contractor, as defined in section 1631(d) of the 
Department of Defense Authorization Act of 1985, in carrying out an 
atomic weapons testing program under a contract with the United States 
in any court or other tribunal;
    (2) To withdraw that certification if further evaluation of the 
relevant facts or the consideration of new or additional information 
calls for such action, in the exercise of his sole discretion; and
    (3) To redelegate to subordinate Division officials the authority 
delegated by this paragraph, provided that such redelegation shall be in 
writing and shall be approved by me before becoming effective.

[42 FR 15410, Mar. 22, 1977, as amended by Order No. 1074-84, 49 FR 
44995, Nov. 14, 1984]

                           Appendix to Part 15

                             Civil Division

                          [Directive No. 90-77]

    Editorial Note: At 44 FR 9379, Feb. 13, 1979, Civil Division, 
Directive No. 90-77 was revoked.

 Delegation of Authority of the Assistant Attorney General of the Civil 
Division To Make Certifications, To Withdraw Certifications, and To File 
                           Appropriate Motions

                             Civil Division

                          [Directive No. 90-79]

    1. By virtue of the authority vested in me by part 15 of title 28 of 
the Code of Federal Regulations, particularly Sec. 15.3(b), it is hereby 
ordered as follows:
    2. The authority delegated to the Assistant Attorney General in 
charge of the Civil Division to make the certifications provided for in 
10 U.S.C. 1089(c), 22 U.S.C. 817(c), 28 U.S.C. 2679(d), 38 U.S.C. 
4116(c), and 42 U.S.C. 233(c) and 2458a(c) with respect to civil actions 
or proceedings brought against Federal employees and to certify the 
status of program participants under the National Swine Flu Immunization 
Program of 1976, as that term is defined in 42 U.S.C. 247b(k)(2)(B), and 
as required under 42 U.S.C. 247b(k)(4)-(5), is hereby delegated to any 
Deputy Assistant Attorney General of the Civil Division and to any 
Director of the Torts Branch, any one of whom may individually exercise 
the authority in any given instance. This delegation also includes the 
authority to withdraw the certification and file appropriate motions as 
set forth in Sec. 15.3(b) of title 28 of the Code of Federal 
Regulations.
    3. Civil Division Directive No. 90-77 is hereby revoked.

[44 FR 9379, Feb. 13, 1979]



PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of Contents




  Subpart A--Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

Sec.
16.1  General provisions.

[[Page 213]]

16.2  Public reference facilities.
16.3  Requirements pertaining to requests.
16.4  Responses by components to requests.
16.5  Form and content of component responses.
16.6  Classified information.
16.7  Business information.
16.8  Appeals.
16.9  Preservation of records.
16.10  Fees.
16.11  Other rights and services.

Appendix A to Subpart A--Delegation of Authority
Appendix B to Subpart A--Delegation of Authority

  Subpart B--Production or Disclosure in Federal and State Proceedings

16.21  Purpose and scope.
16.22  General prohibition of production or disclosure in Federal and 
          State proceedings in which the United States is not a party.
16.23  General disclosure authority in Federal and State proceedings in 
          which the United States is a party.
16.24  Procedure in the event of a demand where disclosure is not 
          otherwise authorized.
16.25  Final action by the Deputy or Associate Attorney General.
16.26  Considerations in determining whether production or disclosure 
          should be made pursuant to a demand.
16.27  Procedure in the event a department decision concerning a demand 
          is not made prior to the time a response to the demand is 
          required.
16.28  Procedure in the event of an adverse ruling.
16.29  Delegation by Assistant Attorneys General.

Appendix to Subpart B--Redelegation of Authority to the Deputy Assistant 
          Attorney General for Litigation, Antitrust Division, To 
          Authorize Production or Disclosure of Material or Information

   Subpart C--Production of FBI Identification Records in Response to 
                  Written Requests by Subjects Thereof

16.30  Purpose and scope.
16.31  Definition of identification record.
16.32  Procedure to obtain an identification record.
16.33  Fee for production of identification record.
16.34  Procedure to obtain change, correction or updating of 
          identification records.

Subpart D--Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974

16.40  General provisions.
16.41  Requests for access to records.
16.42  Responses by components to requests for access to records.
16.43  Form and content of component responses.
16.44  Classified information.
16.45  Records in exempt systems of records.
16.46  Access to records.
16.47  Fees for access to records.
16.48  Appeals from denials of access.
16.49  Preservation of records.
16.50  Request for correction of records.
16.51  Records not subject to correction.
16.52  Request for accounting of record disclosures.
16.53  Notice of subpoenas and emergency disclosures.
16.54  Security of systems of records.
16.55  Contracting record systems.
16.56  Use and collection of social security numbers.
16.57  Employee standards of conduct.
16.58  Other rights and services.

Appendix A to Subpart D--Delegation of Authority
Appendix B to Subpart D--Delegation of Authority

      Subpart E--Exemption of Records Systems Under the Privacy Act

16.70  Exemption of the Office of the Attorney General System--limited 
          access.
16.71  Exemption of the Office of the Deputy Attorney General System--
          limited access.
16.72  Exemption of Office of the Associate Attorney General System--
          limited access.
16.73  Exemption of Office of Legal Policy System--limited access.
16.74  Exemption of Office of Intelligence Policy and Review Systems--
          limited access.
16.75  Exemption of the Office of the Inspector General Systems/Limited 
          Access.
16.76  Exemption of Justice Management Division.
16.77  Exemption of U.S. Trustee Program System--limited access.
16.78  Exemption of the Special Counsel for Immigration-Related, Unfair 
          Employment Practices Systems.
16.79  Exemption of Pardon Attorney Systems.
16.80  Exemption of Office of Professional Responsibility System--
          limited access.
16.81  Exemption of United States Attorneys Systems--limited access.
16.82  Exemption of the National Drug Intelligence Center Data Base--
          limited access.

[[Page 214]]

16.83  Exemption of the Executive Office for Immigration Review System--
          limited access.
16.84  Exemption of Immigration Appeals System.
16.85  Exemption of U.S. Parole Commission--limited access.
16.88  Exemption of Antitrust Division Systems--limited access.
16.89  Exemption of Civil Division Systems--limited access.
16.90  Exemption of Civil Rights Division Systems.
16.91  Exemption of Criminal Division Systems--limited access, as 
          indicated.
16.92  Exemption of Land and Natural Resources Division System--limited 
          access, as indicated.
16.93  Exemption of Tax Division Systems--limited access.
16.96  Exemption of Federal Bureau of Investigation Systems--limited 
          access.
16.97  Exemption of Bureau of Prisons Systems--limited access.
16.98  Exemption of the Drug Enforcement Administration (DEA)--limited 
          access.
16.99  Exemption of Immigration and Naturalization Service System--
          limited access.
16.100  Exemption of Office of Justice Programs--limited access.
16.101  Exemption of U.S. Marshals Service Systems--limited access, as 
          indicated.
16.102  Exemption of Drug Enforcement Administration and Immigration and 
          Naturalization Service Joint System of Records.
16.103  Exemption of the INTERPOL-United States National Central Bureau 
          (INTERPOL-USNCB) System.

       Subpart F--Public Observation of Parole Commission Meetings

16.200  Definitions.
16.201  Voting by the Commissioners without joint deliberation.
16.202  Open meetings.
16.203  Closed meetings--Formal procedure.
16.204  Public notice.
16.205  Closed meetings--Informal procedures.
16.206  Transcripts, minutes, and miscellaneous documents concerning 
          Commission meetings.
16.207  Public access to nonexempt transcripts and minutes of closed 
          Commission meetings--Documents used at meetings--Record 
          retention.
16.208  Annual report.

Appendix I to Part 16--Components of the Department of Justice

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.



  Subpart A--Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

    Source: Order No. 1055-84, 49 FR 12254, Mar. 29, 1984, unless 
otherwise noted.



Sec. 16.1  General provisions.

    (a) This subpart contains the regulations of the Department of 
Justice implementing the Freedom of Information Act (``FOIA''), 5 U.S.C. 
552. All requests for records that are not processed under subparts C or 
D of this part shall be processed under this subpart. Information 
customarily furnished to the public in the regular course of the 
performance of official duties may continue to be furnished to the 
public without complying with this subpart, provided that the furnishing 
of such information would not violate the Privacy Act of 1974, 5 U.S.C. 
552a, and would not be inconsistent with subparts C, D, or E of this 
part. To the extent permitted by other laws, the Department will also 
consider making available records which it is permitted to withhold 
under the FOIA if it determines that such disclosure could be in the 
public interest.
    (b) As used in this subpart, the following terms shall have the 
following meanings:
    (1) Appeal means the appeal by a requester of an adverse 
determination of his request, as described in 5 U.S.C. 552(a)(6)(A)(ii).
    (2) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 
552(e).
    (3) Component means each separate bureau, office, board, division, 
commission, service, or administration of the Department of Justice.
    (4) Request means any request for records made pursuant to 5 U.S.C. 
552(a)(3).
    (5) Requester means any person who makes a request to a component.
    (6) Business information means trade secrets or other commercial or 
financial information.
    (7) Business submitter means any commercial entity which provides 
business information to the Department of Justice and which has a 
proprietary interest in the information.

[[Page 215]]

    (c) The Assistant Attorney General, Office of Legal Policy, shall be 
responsible to the Attorney General for all matters pertaining to the 
administration of this subpart within the Department of Justice. The 
Assistant Attorney General, Office of Legal Policy, may take or direct 
such actions, directly or through the Office of Information and Privacy 
within the Office of Legal Policy, to carry out this responsibility as 
he deems necessary.
    (d) Components of the Department of Justice shall comply with the 
time limits set forth in the FOIA for responding to and processing 
requests and appeals, unless there are exceptional circumstances within 
the meaning of 5 U.S.C. 552(a)(6)(C). A component shall notify a 
requester whenever the component is unable to respond to or process the 
request or appeal within the time limits established by the FOIA. 
Components shall respond to and process requests and appeals in their 
approximate order of receipt, to the extent consistent with sound 
administrative practice.



Sec. 16.2  Public reference facilities.

    (a) The Department of Justice shall maintain public reading rooms or 
areas at the locations listed below:
    (1) United States Attorneys and United States Marshals--at the 
principal offices of the United States Attorneys listed in the United 
States Government Manual;
    (2) Federal Bureau of Investigation--at the J. Edgar Hoover 
Building, 9th Street and Pennsylvania Avenue NW., Washington, DC;
    (3) Immigration and Naturalization Service--at the Central Office, 
425 I Street NW., Washington, DC, and at each District Office in the 
United States listed in the United States Government Manual;
    (4) Drug Enforcement Administration--in Room 1207, 1405 I Street 
NW., Washington, DC;
    (5) Civil Rights Division--in Room 948, 320 First Street, NW., 
Washington, DC;
    (6) Community Relations Service--in Suite 330, 5550 Friendship 
Boulevard, Chevy Chase, Maryland;
    (7) Office of the Pardon Attorney--in Suite 490, 5550 Friendship 
Boulevard, Chevy Chase, Maryland;
    (8) United States Parole Commission--on the Fourth Floor, 5550 
Friendship Boulevard, Chevy Chase, Maryland;
    (9) Office of Justice Programs--in Room 1268 B, 633 Indiana Avenue, 
NW., Washington, DC;
    (10) Foreign Claims Settlement Commission--in Room 400, 1120 20th 
Street, NW., Washington, DC;
    (11) Executive Office For Immigration Review (Board of Immigration 
Appeals)--in Suite 1609, 5203 Leesburg Pike, Falls Church, Virginia;
    (12) INTERPOL--in Room 907, 806 15th Street, NW., Washington, DC;
    (13) All other components of the Department of Justice--at the 
Department of Justice, 10th Street and Constitution Avenue, NW., 
Washington, DC.

The public reference facilities of all components shall contain the 
materials relating to those components which are required by 5 U.S.C. 
552(a)(2) to be made available for public inspection and copying.
    (b) Each component shall maintain, make available for public 
inspection and copying, and publish each quarter a current index of the 
materials available at its public reading room or area which are 
required to be indexed under 5 U.S.C. 552(a)(2). However, if a component 
determines by order published in the Federal Register that publication 
of such an index would be unnecessary or impracticable, then it shall 
not be required to publish the index.
    (c) Each component is responsible for determining which materials it 
generates or maintains are required to be indexed under 5 U.S.C. 
552(a)(2). The Justice Management Division shall ensure that a current 
index of all materials required to be indexed under 5 U.S.C 552(a)(2) is 
published in the Federal Register, except to the extent that such 
publication is considered unnecessary or impracticable and an order to 
that effect is published in the Federal Register.

[Order No. 1055-84, 49 FR 12254, Mar. 29, 1984, as amended by Order No. 
1286-88, 53 FR 27161, July 19, 1988]

[[Page 216]]



Sec. 16.3  Requirements pertaining to requests.

    (a) How made and addressed. A requester may make a request under 
this subpart for a record of the Department of Justice by writing to the 
component that maintains the record. A request should be sent to the 
component at its proper address and both the envelope and the request 
itself should be clearly marked: ``Freedom of Information Act Request.'' 
(appendix I to this part lists the components of the Department and 
their addresses. The functions of each component are summarized in part 
0 of this title and in the description of the Department and its 
components in the United States Government Manual, which is issued 
annually and is available from the Superintendent of Documents.) A 
requester in need of guidance in defining a request or determining the 
proper component to which he should send his request may write to the 
FOIA/PA Section, Justice Management Division, United States Department 
of Justice, 10th Street and Constitution Avenue NW., Washington, DC 
20530. Requests for certain historical records of the Department 
maintained in National Archives and Records Service centers must be 
directed to the General Services Administration in accordance with its 
regulations.
    (b) Request must reasonably describe the records sought. A request 
must describe the records sought in sufficient detail to enable 
Department personnel to locate the records with a reasonable amount of 
effort. A request for a specific category of records shall be regarded 
as fulfilling this requirement if it enables responsive records to be 
identified by a technique or process that is not unreasonably burdensome 
or disruptive of Department operations. Wherever possible, a request 
should include specific information about each record sought, such as 
the date, title or name, author, recipient, and subject matter of the 
record. In addition, if the request seeks records pertaining to pending 
litigation, the request should indicate the title of the case, the court 
in which the case was filed, and the nature of the case. To the extent 
possible, requesters are encouraged also to include in their requests 
the file designations of the records they seek. If a component 
determines that a request does not reasonably describe the records 
sought, the component shall either advise the requester what additional 
information is needed or otherwise state why the request is 
unsufficient. The component also shall extend to the requester an 
opportunity to confer with Department personnel with the objective of 
reformulating the request in a manner which will meet the requirements 
of this section.
    (c) Agreement to pay fees. The filing of a request under this 
subpart shall be deemed to constitute an agreement by the requester to 
pay all applicable fees charged under Sec. 16.10 of this subpart, up to 
$25, unless a waiver of fees is sought. The component responsible for 
responding to the request shall confirm this agreement in its letter of 
acknowledgement to the requester. When filing a request, a requester may 
specify a willingness to pay a greater amount, if applicable.



Sec. 16.4  Responses by components to requests.

    (a) In general. Except as otherwise provided in this section, the 
component that:
    (1) First receives a request for a record; and
    (2) Has possession of the requested record is the component 
ordinarily responsible for responding to the request.
    (b) Authority to grant or deny requests. The head of a component, or 
his designee, is authorized to grant or deny any request for a record of 
that component.
    (c) Initial action by the receiving component. When a component 
receives a request for a record in its possession, the component shall 
promptly determine whether another component, or another agency of the 
Government, is better able to determine:
    (1) Whether the record is exempt, to any extent, from mandatory 
disclosure under the FOIA; and
    (2) Whether the record, if exempt to any extent from mandatory 
disclosure under the FOIA, should nonetheless be released to the 
requester as a matter of discretion.

If the receiving component determines that it is the component or agency 
best able to determine whether or not to

[[Page 217]]

disclose the record in response to the request, then the receiving 
component shall respond to the request. If the receiving component 
determines that it is not the component or agency best able to determine 
whether or not to disclose the record in response to the request, the 
receiving component shall either:
    (i) Respond to the request, after consulting with the component or 
other agency best able to determine whether or not to disclose the 
record and with any other component or agency having a substantial 
interest in the requested record or the information contained therein; 
or
    (ii) Refer the responsibility for responding to the request to the 
component best able to determine whether or not to disclose the record, 
or to another agency that generated or originated the record, but only 
if that other component or agency is subject to the provisions of the 
FOIA.

Under ordinary circumstances, the component or agency that generated or 
originated a requested record shall be presumed to be the component or 
agency best able to determine whether or not to disclose the record in 
response to the request. However, nothing in this section shall prohibit 
a component that generated or originated a requested record from 
referring the responsibility for responding to the request to another 
component, if the component that generated or originated the requested 
record determines that the other component has a greater interest in the 
requested record or the information contained therein.
    (d) Law enforcement information. Whenever a request is made for a 
record containing information which relates to an investigation of a 
possible violation of criminal law or to a criminal law enforcement 
proceeding and which was generated or originated by another component or 
agency, the receiving component shall refer the responsibility for 
responding to the request to that other component or agency; however, 
such referral shall extend only to the information generated or 
originated by that other component or agency.
    (e) Classified information. Whenever a request is made for a record 
containing information which has been classified, or which may be 
eligible for classification, by another component or agency under the 
provisions of Executive Order 12356 or any other Executive order 
concerning the classification of records, the receiving component shall 
refer the responsibility for responding to the request to the component 
or agency that classified the information or should consider the 
information for classification. Whenever a record contains information 
that has been derivatively classified by a component because it contains 
information classified by another component or agency, the component 
shall refer the responsibility for responding to the request to the 
component or agency that classified the underlying information; however, 
such referral shall extend only to the information classified by the 
other component or agency.
    (f) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or to another agency, it ordinarily shall notify the requester of the 
referral and inform the requester of the name and address of each 
component or agency to which the request has been referred and the 
portions of the request so referred.
    (g) Agreements regarding consultations and referrals. No provision 
of this section shall preclude formal or informal agreements between 
components, or between a component and another agency, to eliminate the 
need for consultations or referrals of requests or classes of requests.
    (h) Separate referrals of portions of a request. Portions of a 
request may be referred separately to one or more components or to one 
or more other agencies whenever necessary to process the request in 
accordance with the provisions of this section.
    (i) Processing of requests that are not properly addressed. A 
request that is not properly addressed as specified in Sec. 16.3(a) of 
this subpart shall be forwarded to the FOIA/PA Section, Justice 
Management Division, which shall forward the request to the appropriate 
component or components for processing. A request not addressed to the 
appropriate component will be deemed

[[Page 218]]

not to have been received by the Department of Justice until the FOIA/PA 
Section has forwarded the request to the appropriate component and that 
component has received the request, or until the request would have been 
so forwarded and received with the exercise of reasonable diligence by 
Department personnel. A component receiving an improperly addressed 
request forwarded by the FOIA/PA Section shall notify the requester of 
the date on which it received the request.
    (j) Date for determining responsive records. In determining records 
responsive to a request, a component ordinarily will include only those 
records within the component's possession and control as of the date of 
its receipt of the request.



Sec. 16.5  Form and content of component responses.

    (a) Form of notice granting a request. After a component has made a 
determination to grant a request in whole or in part, the component 
shall so notify the requester in writing. The notice shall describe the 
manner in which the record will be disclosed, whether by providing a 
copy of the record to the requester or by making a copy of the record 
available to the requester for inspection at a reasonable time and 
place. The procedure for such an inspection shall not unreasonably 
disrupt the operations of the component. The component shall inform the 
requester in the notice of any fees to be charged in accordance with the 
provisions of Sec. 16.10 of this subpart.
    (b) Form of notice denying a request. A component denying a request 
in whole or in part shall so notify the requester in writing. The notice 
must be signed by the head of the component, or his designee, and shall 
include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason or reasons for the denial, 
including the FOIA exemption or exemptions which the component has 
relied upon in denying the request and a brief explanation of the manner 
in which the exemption or exemptions apply to each record withheld; and
    (3) A statement that the denial may be appealed under Sec. 16.8(a) 
and a description of the requirements of that subsection.
    (c) Record cannot be located or has been destroyed. If a requested 
record cannot be located from the information supplied, or is known or 
believed to have been destroyed or otherwise disposed of, the component 
shall so notify the requester in writing.



Sec. 16.6  Classified information.

    In processing a request for information that is classified or 
classifiable under Executive Order 12356 or any other Executive order 
concerning the classification of records, a component shall review the 
information to determine whether it warrants classification. Information 
which does not warrant classification shall not be withheld from a 
requester on the basis of 5 U.S.C. 552(b)(1). The Office of Information 
and Privacy shall, upon receipt of any appeal involving classified or 
classifiable information, take appropriate action to ensure compliance 
with part 17 of this chapter.



Sec. 16.7  Business information.

    (a) In general. Business information provided to the Department of 
Justice by a submitter shall not be disclosed pursuant to a Freedom of 
Information Act request except in accordance with this section.
    (b) Definitions. The following definitions are used in reference to 
this section:
    Business information means commercial or financial information 
provided to the Department by a submitter that arguably is protected 
from disclosure under Exemption 4 of the Freedom of Information Act, 5 
U.S.C. 552(b)(4).
    Submitter means any person or entity who provides business 
information, directly or indirectly, to the Department. The term 
includes, but is not limited to, corporations, state governments and 
foreign governments.
    (c) Notice to submitters. A component shall, to the extent permitted 
by law, provide a submitter with prompt written notice of a Freedom of 
Information Act request or administrative appeal encompassing its 
business information wherever required under paragraph (d) of this 
section, except as is provided for in paragraph (i) of this section, in 
order

[[Page 219]]

to afford the submitter an opportunity to object to disclosure pursuant 
to paragraph (f) of this section. Such written notice shall either 
describe the exact nature of the business information requested or 
provide copies of the records or portions thereof containing the 
business information. The requester also shall be notified that notice 
and an opportunity to object are being provided to a submitter.
    (d) When notice is required. Notice shall be given to a submitter 
whenever:
    (1) The information has been designated in good faith by the 
submitter as information deemed protected from disclosure under 
Exemption 4, or
    (2) The component has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (e) Designation of business information. Submitters of business 
information shall use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, those portions of their submissions which they deem to be 
protected from disclosure under Exemption 4. Such designations shall be 
deemed to have expired ten years after the date of the submission unless 
the submitter requests, and provides reasonable justification for, a 
designation period of greater duration.
    (f) Opportunity to object to disclosure. Through the notice 
described in paragraph (c) of this section, a component shall afford a 
submitter a reasonable period of time within which to provide the 
component with a detailed written statement of any objection to 
disclosure. Such statement shall specify all grounds for withholding any 
of the information under any exemption of the Freedom of Information Act 
and, in the case of Exemption 4, shall demonstrate why the information 
is contended to be a trade secret or commercial or financial information 
that is privileged or confidential. Whenever possible, the submitter's 
claim of confidentiality should be supported by a statement or 
certification by an officer or authorized representative of the 
submitter. Information provided by a submitter pursuant to this 
paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. A component shall consider 
carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose business 
information. Whenever a component decides to disclose business 
information over the objection of a submitter, the component shall 
forward to the submitter a written notice which shall include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date.

Such notice of intent to disclose shall be forwarded to the submitter a 
reasonable number of days prior to the specified disclosure date and the 
requester shall be notified likewise.
    (h) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 
to compel disclosure of business information, the component shall 
promptly notify the submitter.
    (i) Exceptions to notice requirements. The notice requirements of 
paragraph (c) of this section shall not apply if:
    (1) The component determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The designation made by the submitter in accordance with 
paragraph (e) of this section appears obviously frivolous; except that, 
in such case, the component shall provide the submitter with written 
notice of any final administrative decision to disclose business 
information within a reasonable number of days prior to a specified 
disclosure date.

[Order No. 1286-88, 53 FR 27161, July 19, 1988]



Sec. 16.8  Appeals.

    (a) Appeals to the Attorney General. When a request for access to 
records or for a waiver of fees has been denied in whole or in part, or 
when a component fails to respond to a request within the time limits 
set forth in the FOIA, the requester may appeal the denial of the

[[Page 220]]

request to the Attorney General within 30 days of his receipt of a 
notice denying his request. An appeal to the Attorney General shall be 
made in writing and addressed to the Office of Information and Privacy, 
United States Department of Justice, 10th Street and Constitution 
Avenue, NW., Washington, DC 20530. Both the envelope and the letter of 
appeal itself must be clearly marked: ``Freedom of Information Act 
Appeal.'' An appeal not so addressed and marked will be forwarded to the 
Office of Information and Privacy as soon as it is identified. An appeal 
that is improperly addressed will be deemed not to have been received by 
the Department until the Office of Information and Privacy receives the 
appeal, or would have done so with the exercise of reasonable diligence 
by Department personnel.
    (b) Action on appeals by the Office of Information and Privacy. 
Unless the Attorney General otherwise directs, the Director, Office of 
Information and Privacy, under the supervision of the Assistant Attorney 
General, Office of Legal Policy, shall act on behalf of the Attorney 
General on all appeals under this section, except that:
    (1) In the case of a denial of a request by the Assistant Attorney 
General, Office of Legal Policy, the Attorney General or his designee 
shall act on the appeal, and
    (2) A denial of a request by the Attorney General shall constitute 
the final action of the Department on that request.
    (c) Form of action on appeal. The disposition of an appeal shall be 
in writing. A decision affirming in whole or in part the denial of a 
request shall include a brief statement of the reason or reasons for the 
affirmance, including each FOIA exemption relied upon and its relation 
to each record withheld, and a statement that judicial review of the 
denial is available in the U.S. District Court for the judicial district 
in which the requester resides or has his principal place of business, 
the judicial district in which the requested records are located, or the 
District of Columbia. If the denial of a request is reversed on appeal, 
the requester shall be so notified and the request shall be processed 
promptly in accordance with the decision on appeal.



Sec. 16.9  Preservation of records.

    Each component shall preserve all correspondence relating to the 
requests it receives under this subpart, and all records processed 
pursuant to such requests, until such time as the destruction of such 
correspondence and records is authorized pursuant to title 44 of the 
U.S. Code. Under no circumstances shall records be destroyed while they 
are the subject of a pending request, appeal, or lawsuit under the Act.



Sec. 16.10  Fees.

    (a) In general. Fees pursuant to 5 U.S.C. 552 shall be assessed 
according to the schedule contained in paragraph (b) of this section for 
services rendered by components in responding to and processing requests 
for records under this subpart. All fees so assessed shall be charged to 
the requester, except where the charging of fees is limited under 
paragraph (c) of this section or where a waiver or reduction of fees is 
granted under paragraph (d) of this section. A component shall collect 
all applicable fees before making copies of requested records available 
to a requester. Requesters shall pay fees by check or money order made 
payable to the Treasury of the United States.
    (b) Charges. In responding to requests under this subpart, the 
following fees shall be assessed, unless a waiver or reduction of fees 
has been granted pursuant to paragraph (d) of this section:
    (1) Search. (i) No search fee shall be assessed with respect to 
requests by educational institutions, noncommercial scientific 
institutions, and representatives of the news media (as defined in 
paragraph (j) (6), (7) and (8) of this section, respectively). Search 
fees shall be assessed with respect to all other requests, subject to 
the limitations of paragraph (c) of this section. Components may assess 
fees for time spent searching even if they fail to locate any respective 
record or where records located are subsequently determined to be 
entirely exempt from disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and

[[Page 221]]

retrieving a requested record, the fee shall be $2.25. Where a search 
and retrieval cannot be performed entirely by clerical personnel--for 
example, where the identification of records within the scope of a 
request requires the use of professional personnel--the fee shall be 
$4.50 for each quarter hour of search time spent by such professional 
personnel. Where the time of managerial personnel is required, the fee 
shall be $7.50 for each quarter hour of time spent by such managerial 
personnel.
    (iii) For computer searches of records, which may be undertaken 
through the use of existing programming, requesters shall be charged the 
actual direct costs of conducting the search, although certain 
requesters (as defined in paragraph(c)(2) of this section) shall be 
entitled to the cost equivalent of two hours of manual search time 
without charge. These direct costs shall include the cost of operating a 
central processing unit for that portion of operating time that is 
directly attributable to searching for records responsive to a request, 
as well as the costs of operator/programmer salary apportionable to the 
search (at no more than $4.50 per quarter hour of time so spent). A 
component is not required to alter or develop programming to conduct a 
search.
    (2) Duplication. Duplication fees shall be assessed with respect to 
all requesters, subject to the limitations of paragraph (c) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee shall be $0.10 per page. For copies 
produced by computer, such as tapes or printouts, components shall 
charge the actual direct costs, including operator time, of producing 
the copy. For other methods of duplication, components shall charge the 
actual direct costs of duplicating a record.
    (3) Review. (i) Review fees shall be assessed with respect to only 
those requesters who seek records for a commercial use, as defined in 
paragraph (j)(5) of this section. For each quarter hour spent by agency 
personnel in reviewing a requested record for possible disclosure, the 
fee shall be $4.50, except that where the time of managerial personnel 
is required, the fee shall be $7.50 for each quarter hour of time spent 
by such managerial personnel.
    (ii) Review fees shall be assessed only for the initial record 
review, i.e., all of the review undertaken when a component analyzes the 
applicability of a particular exemption to a particular record or record 
portion at the initial request level. No charge shall be assessed for 
review at the administrative appeal level of an exemption already 
applied. However, records or record portions withheld pursuant to an 
exemption that is subsquently determined not to apply may be reviewed 
again to determine the applicability of other exemptions not previously 
considered. The costs of such a subsequent review are properly 
assessable, particularly where that review is made necessary by a change 
of circumstances.
    (c) Limitations on charging fees. (1) No search or review fee shall 
be charged for a quarter-hour period unless more than half of that 
period is required for search or review.
    (2) Except for requesters seeking records for a commercial use (as 
defined in paragraph (j)(5) of this section), components shall provide 
without charge--
    (i) The first 100 pages of duplication (or its cost equivalent), and
    (ii) The first two hours of search (or its cost equivalent).
    (3) Whenever a total fee calculated under paragraph (b) of this 
section is $8.00 or less, no fee shall be charged.
    (4) The provisions of paragraph (c) (2) and (3) of this section work 
together. For requesters other than those seeking records for a 
commercial use, no fee shall be charged unless the cost of search in 
excess of two hours plus the cost of duplication in excess of 100 pages 
exceeds $8.00.
    (d) Waiver or reduction of fees. (1) Records responsive to a request 
under 5 U.S.C. 552 shall be furnished without charge or at a charge 
reduced below that established under paragraph (b) of this section where 
a component determines, based upon information provided by a requester 
in support of a fee waiver request or otherwise made known to the 
component, that disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public

[[Page 222]]

understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester. Requests for 
a waiver or reduction of fees shall be considered on a case-by-case 
basis.
    (2) In order to determine whether the first fee waiver requirement 
is met--i.e., that disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government--
components shall consider the following four factors in sequence:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject matter of the requested records, in the context of the request, 
must specifically concern identifiable operations or activities of the 
federal government--with a connection that is direct and clear, not 
remote or attenuated. Furthermore, the records must be sought for their 
informative value with respect to those government operations or 
activities; a request for access to records for their intrinsic 
informational content alone will not satisfy this threshold 
consideration.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative on specific 
government operations or activities in order to hold potential for 
contributing to increased public understanding of those operations and 
activities. The disclosure of information that already is in the public 
domain, in either a duplicative or a substantially identical form, would 
not be likely to contribute to such understanding, as nothing new would 
be added to the public record.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of the public at large, 
as opposed to the individual understanding of the requester or a narrow 
segment of interested persons. A requester's identity and 
qualifications--e.g., expertise in the subject area and ability and 
intention to effectively convey information to the general public--
should be considered. It reasonably may be presumed that a 
representative of the news media (as defined in paragraph (j)(8) of this 
section) who has access to the means of public dissemination readily 
will be able to satisfy this consideration. Requests from libraries or 
other record repositories (or requesters who intend merely to 
disseminate information to such institutions) shall be analyzed, like 
those of other requesters, to identify a particular person who 
represents that he actually will use the requested information in 
scholarly or other analytic work and then disseminate it to the general 
public.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject matter in question, as compared to 
the level of public understanding existing prior to the disclosure, must 
be likely to be enhanced by the disclosure to a significant extent. 
Components shall not make separate value judgments as to whether 
information, even though it in fact would contribute significantly to 
public understanding of the operations or activities of the government, 
is ``important'' enough to be made public.
    (3) In order to determine whether the second fee waiver requirement 
is met--i.e., that disclosure of the requested information is not 
primarily in the commercial interest of the requester--components shall 
consider the following two factors in sequence:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. Components shall consider all commercial interests 
of the requester (with reference to the definition of ``commercial use'' 
in paragraph (j)(5) of this section), or any person on whose behalf the 
requester may be acting, but shall consider only those interests which 
would be furthered by the requested disclosure. In assessing the

[[Page 223]]

magnitude of identified commercial interests, consideration shall be 
given to the role that such FOIA-disclosed information plays with 
respect to those commercial interests, as well as to the extent to which 
FOIA disclosures serve those interests overall. Requesters shall be 
given a reasonable opportunity in the administrative process to provide 
information bearing upon this consideration.
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.'' 
A fee waiver or reduction is warranted only where, once the ``public 
interest'' standard set out in paragraph (d)(2) of this section is 
satisfied, that public interest can fairly be regarded as greater in 
magnitude than that of the requester's commercial interest in 
disclosure. Components shall ordinarily presume that, where a news media 
requester has satisfied the ``public interest'' standard, that will be 
the interest primarily served by disclosure to that requester. 
Disclosure to data brokers or others who compile and market government 
information for direct economic return shall not be presumed to 
primarily serve the ``public interest.''
    (4) Where only a portion of the requested records satisfies both of 
the requirements for a waiver or reduction of fees under this paragraph, 
a waiver or reduction shall be granted only as to that portion.
    (5) Requests for the waiver or reduction of fees shall address each 
of the factors listed in paragraph (d) (2) and (3) of this section, as 
they apply to each record request.
    (e) Notice of anticipated fees in excess of $25.00. Where a 
component determines or estimates that the fees to be assessed under 
this section may amount to more than $25.00, the component shall notify 
the requester as soon as practicable of the actual or estimated amount 
of the fees, unless the requester has indicated in advance his 
willingness to pay fees as high as those anticipated. (If only a portion 
of the fee can be estimated readily, the component shall advise the 
requester that the estimated fee may be only a portion of the total 
fee.) In cases where a requester has been notified that actual or 
estimated fees may amount to more than $25.00, the request will be 
deemed not to have been received until the requester has agreed to pay 
the anticipated total fee. A notice to the requester pursuant to this 
paragraph shall offer him the opportunity to confer with Department 
personnel in order to reformulate his request to meet his needs at a 
lower cost.
    (f) Aggregating requests. Where a component reasonably believes that 
a requester or a group of requesters acting in concert is attempting to 
divide a request into a series of requests for the purpose of evading 
the assessment of fees, the component may aggregate any such requests 
and charge accordingly. Components may presume that multiple requests of 
this type made within a 30-day period have been made in order to evade 
fees. Where requests are separated by a longer period, components shall 
aggregate them only where there exists a solid basis for determining 
that such aggregation is warranted, e.g., where the requests involve 
clearly related matters. Multiple requests involving unrelated matters 
shall not be aggregated.
    (g) Advance payments. (1) Where a component estimates that a total 
fee to be assessed under this section is likely to exceed $250.00, it 
may require the requester to make an advance payment of an amount up to 
the entire estimated fee before beginning to process the request, except 
where it receives a satisfactory assurance of full payment from a 
requester with a history of prompt payment.
    (2) Where a requester has previously failed to pay a records access 
fee within 30 days of the date of billing, a component may require the 
requester to pay the full amount owed, plus any applicable interest (as 
provided for in paragraph (h) of this section), and to make an advance 
payment of the full amount of any estimated fee before the component 
begins to process a new request or continues to process a pending 
request from that requester.
    (3) For requests other than those described in paragraphs (g) (1) 
and (2) of

[[Page 224]]

this section, a component shall not require the requester to make an 
advance payment, i.e., a payment made before work is commenced or 
continued on a request. Payment owed for work already completed is not 
an advance payment.
    (4) Where a component acts under paragraph (g) (1) or (2) of this 
section, the administrative time limits prescribed in subsection (a)(6) 
of the FOIA for the processing of an initial request or an appeal, plus 
permissible extensions of these time limits, shall be deemed not to 
begin to run until the component has received payment of the assessed 
fee.
    (h) Charging interest. Components may assess interest charges on an 
unpaid bill starting on the 31st day following the day on which the bill 
was sent to the requester. Once a fee payment has been received by a 
component, even if not processed, the accrual of interest shall be 
stayed. Interest charges shall be assessed at the rate prescribed in 
section 3717 of title 31 U.S.C. and shall accrue from the date of the 
billing. Components shall follow the provisions of the Debt Collection 
Act of 1982, Public Law 97-265 (Oct. 25, 1982), and its implementing 
procedures, including the use of consumer reporting agencies, collection 
agencies, and offset.
    (i) Other statutes specifically providing for fees. (1) The fee 
schedule of this section does not apply with respect to the charging of 
fees under a statute specifically providing for setting the level of 
fees for particular types of records--i.e., any statute that 
specifically requires a government entity such as the Government 
Printing Office or the National Technical Information Service, to set 
and collect fees for particular types of records--in order to:
    (i) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (ii) Ensure that groups and individuals pay the cost of publications 
and other services that are for their special use so that these costs 
are not borne by the general taxpaying public;
    (iii) Operate an information-dissemination activity on a self-
sustaining basis to the maximum extent possible; or
    (iv) Return revenue to the Treasury for defraying, wholly or in 
part, appropriated funds used to pay the cost of disseminating 
government information.
    (2) Where records responsive to requests are maintained for 
distribution by agencies operating statutorily based fee schedule 
programs, components shall inform requesters of the steps necessary to 
obtain records from those sources.
    (j) Definitions. For the purpose of this section:
    (1) The term direct costs means those expenditures which an agency 
actually incurs in searching for and duplicating (and, in the case of 
commercial use requesters, reviewing) records to respond to a FOIA 
request. Direct costs include, for example the salary of the employee 
performing the work (the basic rate of pay for the employee plus 16 
percent of that rate to cover benefits) and the cost of operating 
duplicating machinery. Not included in direct costs are overhead 
expenses such as costs of space and heating or lighting of the facility 
in which the records are stored.
    (2) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents. Components shall ensure, 
however, that searches are undertaken in the most efficient and least 
expensive manner reasonably possible; thus, for example, components 
shall not engage in line-by-line search where merely duplicating an 
entire document would be quicker and less expensive.
    (3) The term duplication refers to the process of making a copy of a 
record necessary to respond to a FOIA request. Such copies can take the 
form of paper copy, microform, audio-visual materials, or machine-
readable documentation (e.g., magnetic tape or disk), among others. The 
copy provided shall be in a form that is reasonably usable by 
requesters.

[[Page 225]]

    (4) The term review refers to the process of examining a record 
located in response to a request in order to determine whether any 
portion of it is permitted to be withheld. It also includes processing 
any record for disclosure, e.g., doing all that is necessary to excise 
it and otherwise prepare it for release, although review costs shall be 
recoverable even where there ultimately is no disclosure of a record. 
Review time does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (5) The term commercial use in the context of a request refers to a 
request from or on behalf of one who seeks information for a use or 
purpose that furthers the commercial, trade, or profit interests of the 
requester or the person on whose behalf the request is made, which can 
include furthering those interests through litigation. Components shall 
determine, as well as reasonably possible, the use to which a requester 
will put the records requested. Where the circumstances of a request 
suggest that the requester will put the records sought to a commercial 
use, either because of the nature of the request itself or because a 
component otherwise has reasonable cause to doubt a requester's stated 
use, the component shall provide the requester a reasonable opportunity 
to submit further clarification.
    (6) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of 
undergraduate higher education, an institution of graduate higher 
education, an institution of professional education, and an institution 
of vocational education, which operates a program or programs of 
scholarly research. To be eligible for inclusion in this category, a 
requester must show that the request is being made as authorized by and 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought in furtherance of 
scholarly research.
    (7) The term noncommercial scientific institution refers to an 
institution that is not operated on a ``commercial'' basis as that term 
is referenced in paragraph (j)(5) of this section, and which is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry. To 
be eligible for inclusion in this category, a requester must show that 
the request is being made as authorized by and under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial use but are sought in furtherance of scientific research.
    (8) The term representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances where they can qualify as 
disseminators of ``news'') who make their products available for 
purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they must 
demonstrate a solid basis for expecting publication through that 
organization; a publication contract would be the clearest proof, but 
components shall also look to the past publication record of a requester 
in making this determination. To be eligible for inclusion in this 
category, a requester also must not be seeking the requested records for 
a commercial use. In this regard, a request for records supporting the 
news dissemination function of the requester shall not be considered to 
be for a commercial use.
    (k) Charges for other services and materials. Apart from the other 
provisions of this section, where a component elects, as a matter of 
administrative discretion, to comply with a request for a special 
service or materials, such as certifying that records are true copies or 
sending them other than by ordinary mail, the actual direct costs of 
providing the service or materials shall be charged.

[Order 1212-87, 52 FR 33231, Sept. 2, 1987]



Sec. 16.11  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as 
of

[[Page 226]]

right, to any service or to the disclosure of any record to which such 
person is not entitled under 5 U.S.C. 552.

            Appendix A to Subpart A--Delegation of Authority

    1. By virtue of the authority vested in me by Sec. 16.5(b) of title 
28 of the Code of Federal Regulations, the authority to deny requests 
under the Freedom of Information Act is delegated to the occupant of the 
position of Chief, Freedom of Information-Privacy Acts Section, Records 
Management Division, Federal Bureau of Investigation. This same 
authority is delegated to the occupant of the position of Special Agent 
in Charge of each of the field offices of the Federal Bureau on 
Investigation for records in their custody and control.
    2. This directive is effective June 9, 1981.

[46 FR 32021, June 19, 1981, as amended at 49 FR 11625, Mar. 27, 1984]

            Appendix B to Subpart A--Delegation of Authority

    (a) By virtue of the authority vested in me by Sec. 16.5(b) of title 
28 of the Code of Federal Regulations, I hereby delegate authority to 
the United States Attorney for the District of Columbia to:
    (1) Respond initially to requests;
    (2) Grant and deny access to records;
    (3) Communicate directly with the Office of Information and Privacy 
concerning administrative appeals; and
    (4) Prepare affidavits, litigation reports, and other necessary 
documents in preparation for civil litigation in suits pursuant to 5 
U.S.C. 552(4)(B).
    (b) This authority is limited to those records which are under the 
custody and control of the United States Attorney for the District of 
Columbia. The authority delegated herein may be redelegated.
    (c) This directive is effective immediately.

[49 FR 11625, Mar. 27, 1984]



  Subpart B--Production or Disclosure in Federal and State Proceedings

    Source: Order No. 919-80, 45 FR 83210, Dec. 18, 1980, unless 
otherwise noted.



Sec. 16.21  Purpose and scope.

    (a) This subpart sets forth procedures to be followed with respect 
to the production or disclosure of any material contained in the files 
of the Department, any information relating to material contained in the 
files of the Department, or any information acquired by any person while 
such person was an employee of the Department as a part of the 
performance of that person's official duties or because of that person's 
official status:
    (1) In all federal and state proceedings in which the United States 
is a party; and
    (2) In all federal and state proceedings in which the United States 
is not a party, including any proceedings in which the Department is 
representing a government employee solely in that employee's individual 
capacity, when a subpoena, order, or other demand (hereinafter 
collectively referred to as a ``demand'') of a court or other authority 
is issued for such material or information.
    (b) For purposes of this subpart, the term employee of the 
Department includes all officers and employees of the United States 
appointed by, or subject to the supervision, jurisdiction, or control of 
the Attorney General of the United States, including U.S. Attorneys, 
U.S. Marshals, U.S. Trustees and members of the staffs of those 
officials.
    (c) Nothing in this subpart is intended to impede the appropriate 
disclosure, in the absence of a demand, of information by Department law 
enforcement agencies to federal, state, local and foreign law 
enforcement, prosecutive, or regulatory agencies.
    (d) This subpart is intended only to provide guidance for the 
internal operations of the Department of Justice, and is not intended 
to, and does not, and may not be relied upon to create any right or 
benefit, substantive or procedural, enforceable at law by a party 
against the United States.



Sec. 16.22  General prohibition of production or disclosure in Federal and State proceedings in which the United States is not a party.

    (a) In any federal or state case or matter in which the United 
States is not a party, no employee or former employee of the Department 
of Justice shall, in response to a demand, produce any material 
contained in the files of the Department, or disclose any information 
relating to or based upon material contained in the files of the 
Department, or disclose any information

[[Page 227]]

or produce any material acquired as part of the performance of that 
person's official duties or because of that person's official status 
without prior approval of the proper Department official in accordance 
with Secs. 16.24 and 16.25 of this part.
    (b) Whenever a demand is made upon an employee or former employee as 
described in paragraph (a) of this section, the employee shall 
immediately notify the U.S. Attorney for the district where the issuing 
authority is located. The responsible United States Attorney shall 
follow procedures set forth in Sec. 16.24 of this part.
    (c) If oral testimony is sought by a demand in any case or matter in 
which the United States is not a party, an affidavit, or, if that is not 
feasible, a statement by the party seeking the testimony or by his 
attorney, setting forth a summary of the testimony sought and its 
relevance to the proceeding, must be furnished to the responsible U.S. 
Attorney. Any authorization for testimony by a present or former 
employee of the Department shall be limited to the scope of the demand 
as summarized in such statement.
    (d) When information other than oral testimony is sought by a 
demand, the responsible U.S. Attorney shall request a summary of the 
information sought and its relevance to the proceeding.



Sec. 16.23  General disclosure authority in Federal and State proceedings in which the United States is a party.

    (a) Every attorney in the Department of Justice in charge of any 
case or matter in which the United States is a party is authorized, 
after consultation with the ``originating component'' as defined in 
Sec. 16.24(a) of this part, to reveal and furnish to any person, 
including an actual or prospective witness, a grand jury, counsel, or a 
court, either during or preparatory to a proceeding, such testimony, and 
relevant unclassified material, documents, or information secured by any 
attorney, or investigator of the Department of Justice, as such attorney 
shall deem necessary or desirable to the discharge of the attorney's 
offical duties: Provided, Such an attorney shall consider, with respect 
to any disclosure, the factors set forth in Sec. 16.26(a) of this part: 
And further provided, An attorney shall not reveal or furnish any 
material, documents, testimony or information when, in the attorney's 
judgment, any of the factors specified in Sec. 16.26(b) exists, without 
the express prior approval by the Assistant Attorney General in charge 
of the division responsible for the case or proceeding, the Director of 
the Executive Office for United States Trustees (hereinafter referred to 
as ``the EOUST''), or such persons' designees.
    (b) An attorney may seek higher level review at any stage of a 
proceeding, including prior to the issuance of a court order, when the 
attorney determines that a factor specified in Sec. 16.26(b) exists or 
foresees that higher level approval will be required before disclosure 
of the information or testimony in question. Upon referral of a matter 
under this subsection, the responsible Assistant Attorney General, the 
Director of EOUST, or their designees shall follow procedures set forth 
in Sec. 16.24 of this part.
    (c) If oral testimony is sought by a demand in a case or matter in 
which the United States is a party, an affidavit, or, if that is not 
feasible, a statement by the party seeking the testimony or by the 
party's attorney setting forth a summary of the testimony sought must be 
furnished to the Department attorney handling the case or matter.



Sec. 16.24  Procedure in the event of a demand where disclosure is not otherwise authorized.

    (a) Whenever a matter is referred under Sec. 16.22 of this part to a 
U.S. Attorney or, under Sec. 16.23 of this part, to an Assistant 
Attorney General, the Director of the EOUST, or their designees 
(hereinafter collectively referred to as the ``responsible official''), 
the responsible official shall immediately advise the official in charge 
of the bureau, division, office, or agency of the Department that was 
responsible for the collection, assembly, or other preparation of the 
material demanded or that, at the time the person whose testimony was 
demanded acquired the information in question, employed such person 
(hereinafter collectively referred to as

[[Page 228]]

the ``originating component''), or that official's designee. In any 
instance in which the responsible official is also the official in 
charge of the originating component, the responsible official may 
perform all functions and make all determinations that this regulation 
vests in the originating component.
    (b) The responsible official, subject to the terms of paragraph (c) 
of this section, may authorize the appearance and testimony of a present 
or former Department employee, or the production of material from 
Department files if:
    (1) There is no objection after inquiry of the originating 
component;
    (2) The demanded disclosure, in the judgment of the responsible 
official, is appropriate under the factors specified in Sec. 16.26(a) of 
this part; and
    (3) None of the factors specified in Sec. 16.26(b) of this part 
exists with respect to the demanded disclosure.
    (c) It is Department policy that the responsible official shall, 
following any necessary consultation with the originating component, 
authorize testimony by a present or former employee of the Department or 
the production of material from Department files without further 
authorization from Department officials whenever possible: Provided, 
That, when information is collected, assembled, or prepared in 
connection with litigation or an investigation supervised by a division 
of the Department or by the EOUST, the Assistant Attorney General in 
charge of such a division or the Director of the EOUST may require that 
the originating component obtain the division's or the EOUST's approval 
before authorizing a responsible official to disclose such information. 
Prior to authorizing such testimony or production, however, the 
responsible official shall, through negotiation and, if necessary, 
appropriate motions, seek to limit the demand to information, the 
disclosure of which would not be inconsistent with the considerations 
specified in Sec. 16.26 of this part.
    (d)(1) In a case in which the United States is not a party, if the 
responsible U.S. attorney and the originating component disagree with 
respect to the appropriateness of demanded testimony or of a particular 
disclosure, or if they agree that such testimony or such a disclosure 
should not be made, they shall determine if the demand involves 
information that was collected, assembled, or prepared in connection 
with litigation or an investigation supervised by a division of this 
Department or the EOUST. If so, the U.S. attorney shall notify the 
Director of the EOUST or the Assistant Attorney General in charge of the 
division responsible for such litigation or investigation, who may:
    (i) Authorize personally or through a Deputy Assistant Attorney 
General, the demanded testimony or other disclosure of the information 
if such testimony or other disclosure, in the Assistant or Deputy 
Assistant Attorney General's judgment or in the judgment of the Director 
of the EOUST, is consistent with the factors specified in Sec. 16.26(a) 
of this part, and none of the factors specified in Sec. 16.26(b) of this 
part exists with respect to the demanded disclosure;
    (ii) Authorize, personally or by a designee, the responsible 
official, through negotiations and, if necessary, appropriate motions, 
to seek to limit the demand to matters, the disclosure of which, through 
testimony or documents, considerations specified in Sec. 16.26 of this 
part, and otherwise to take all appropriate steps to limit the scope or 
obtain the withdrawal of a demand; or
    (iii) If, after all appropriate steps have been taken to limit the 
scope or obtain the withdrawal of a demand, the Director of the EOUST or 
the Assistant or Deputy Assistant Attorney General does not authorize 
the demanded testimony or other disclosure, refer the matter, personally 
or through a Deputy Assistant Attorney General, for final resolution to 
the Deputy or Associate Attorney General, as indicated in Sec. 16.25 of 
this part.
    (2) If the demand for testimony or other disclosure in such a case 
does not involve information that was collected, assembled, or prepared 
in connection with litigation or an investigation supervised by a 
division of this Department, the originating component shall decide 
whether disclosure is appropriate, except that, when especially

[[Page 229]]

significant issues are raised, the responsible official may refer the 
matter to the Deputy or Associate Attorney General, as indicated in 
Sec. 16.25 of this part. If the originating component determines that 
disclosure would not be appropriate and the responsible official does 
not refer the matter for higher level review, the responsible official 
shall take all appropriate steps to limit the scope or obtain the 
withdrawal of a demand.
    (e) In a case in which the United States is a party, the Assistant 
General or the Director of the EOUST responsible for the case or matter, 
or such persons' designees, are authorized, after consultation with the 
originating component, to exercise the authorities specified in 
paragraph (d)(1) (i) through (iii) of this section: Provided, That if a 
demand involves information that was collected, assembled, or prepared 
originally in connection with litigation or an investigation supervised 
by another unit of the Department, the responsible official shall notify 
the other division or the EOUST concerning the demand and the 
anticipated response. If two litigating units of the Department are 
unable to resolve a disagreement concerning disclosure, the Assistant 
Attorneys General in charge of the two divisions in disagreement, or the 
Director of the EOUST and the appropriate Assistant Attorney General, 
may refer the matter to the Deputy or Associate Attorney General, as 
indicated in Sec. 16.25(b) of this part.
    (f) In any case or matter in which the responsible official and the 
originating component agree that it would not be appropriate to 
authorize testimony or otherwise to disclose the information demanded, 
even if a court were so to require, no Department attorney responding to 
the demand should make any representation that implies that the 
Department would, in fact, comply with the demand if directed to do so 
by a court. After taking all appropriate steps in such cases to limit 
the scope or obtain the withdrawal of a demand, the responsible official 
shall refer the matter to the Deputy or Associate Attorney General, as 
indicated in Sec. 16.25 of this part.
    (g) In any case or matter in which the Attorney General is 
personally involved in the claim of privilege, the responsible official 
may consult with the Attorney General and proceed in accord with the 
Attorney General's instructions without subsequent review by the Deputy 
or Associate Attorney General.



Sec. 16.25  Final action by the Deputy or Associate Attorney General.

    (a) Unless otherwise indicated, all matters to be referred under 
Sec. 16.24 by an Assistant Attorney General, the Director of the EOUST, 
or such person's designees to the Deputy or Associate Attorney General 
shall be referred (1) to the Deputy Attorney General, if the matter is 
referred personally by or through the designee of an Assistant Attorney 
General who is within the general supervision of the Deputy Attorney 
General, or (2) to the Associate Attorney General, in all other cases.
    (b) All other matters to be referred under Sec. 16.24 to the Deputy 
or Associate Attorney General shall be referred (1) to the Deputy 
Attorney General, if the originating component is within the supervision 
of the Deputy Attorney General or is an independent agency that, for 
administrative purposes, is within the Department of Justice, or (2) to 
the Associate Attorney General, if the originating component is within 
the supervision of the Associate Attorney General.
    (c) Upon referral, the Deputy or Associate Attorney General shall 
make the final decision and give notice thereof to the responsible 
official and such other persons as circumstances may warrant.



Sec. 16.26  Considerations in determining whether production or disclosure should be made pursuant to a demand.

    (a) In deciding whether to make disclosures pursuant to a demand, 
Department officials and attorneys should consider:
    (1) Whether such disclosure is appropriate under the rules of 
procedure governing the case or matter in which the demand arose, and
    (2) Whether disclosure is appropriate under the relevant substantive 
law concerning privilege.

[[Page 230]]

    (b) Among the demands in response to which disclosure will not be 
made by any Department official are those demands with respect to which 
any of the following factors exist:
    (1) Disclosure would violate a statute, such as the income tax laws, 
26 U.S.C. 6103 and 7213, or a rule of procedure, such as the grand jury 
secrecy rule, F.R.Cr.P., Rule 6(e),
    (2) Disclosure would violate a specific regulation;
    (3) Disclosure would reveal classified information, unless 
appropriately declassified by the originating agency,
    (4) Disclosure would reveal a confidential source or informant, 
unless the investigative agency and the source or informant have no 
objection,
    (5) Disclosure would reveal investigatory records compiled for law 
enforcement purposes, and would interfere with enforcement proceedings 
or disclose investigative techniques and procedures the effectiveness of 
which would thereby be impaired,
    (6) Disclosure would improperly reveal trade secrets without the 
owner's consent.
    (c) In all cases not involving considerations specified in 
paragraphs (b)(1) through (b)(6) of this section, the Deputy or 
Associate Attorney General will authorize disclosure unless, in that 
person's judgment, after considering paragraph (a) of this section, 
disclosure is unwarranted. The Deputy or Associate Attorney General will 
not approve disclosure if the circumstances specified in paragraphs 
(b)(1) through (b)(3) of this section exist. The Deputy or Associate 
Attorney General will not approve disclosure if any of the conditions in 
paragraphs (b)(4) through (b)(6) of this section exist, unless the 
Deputy or Associate Attorney General determines that the administration 
of justice requires disclosure. In this regard, if disclosure is 
necessary to pursue a civil or criminal prosecution or affirmative 
relief, such as an injunction, consideration shall be given to:
    (1) The seriousness of the violation or crime involved,
    (2) The past history or criminal record of the violator or accused,
    (3) The importance of the relief sought,
    (4) The importance of the legal issues presented,
    (5) Other matters brought to the attention of the Deputy or 
Associate Attorney General.
    (d) Assistant Attorneys General, U.S. Attorneys, the Director of the 
EOUST, U.S. Trustees, and their designees, are authorized to issue 
instructions to attorneys and to adopt supervisory practices, consistent 
with this subpart, in order to help foster consistent application of the 
foregoing standards and the requirements of this subpart.



Sec. 16.27  Procedure in the event a department decision concerning a demand is not made prior to the time a response to the demand is required.

    If response to a demand is required before the instructions from the 
appropriate Department official are received, the responsible official 
or other Department attorney designated for the purpose shall appear and 
furnish the court or other authority with a copy of the regulations 
contained in this subpart and inform the court or other authority that 
the demand has been or is being, as the case may be, referred for the 
prompt consideration of the appropriate Department official and shall 
respectfully request the court or authority to stay the demand pending 
receipt of the requested instructions.



Sec. 16.28  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec. 16.27 of 
this chapter pending receipt of instructions, or if the court or other 
authority rules that the demand must be complied with irrespective of 
instructions rendered in accordance with Secs. 16.24 and 16.25 of this 
part not to produce the material or disclose the information sought, the 
employee or former employee upon whom the demand has been made shall, if 
so directed by the responsible Department official, respectfully decline 
to comply with the demand. See United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951).

[[Page 231]]



Sec. 16.29  Delegation by Assistant Attorneys General.

    With respect to any function that this subpart permits the designee 
of an Assistant Attorney General to perform, the Assistant Attorneys 
General are authorized to delegate their authority, in any case or 
matter or any category of cases or matters, to subordinate division 
officials or U.S. attorneys, as appropriate.

Appendix to Subpart B--Redelegation of Authority to the Deputy Assistant 
   Attorney General for Litigation, Antitrust Division, To Authorize 
           Production or Disclosure of Material or Information

    1. By virtue of the authority vested in me by 28 CFR 16.23(b)(1) the 
authority delegated to me by that section to authorize the production of 
material and disclosure of information described in 28 CFR 16.21(a) is 
hereby redelegated to the Deputy Assistant Attorney General for 
Litigation, Antitrust Division.
    2. This directive shall become effective on the date of its 
publication in the Federal Register.

[Order No. 960-81, 46 FR 52356, Oct. 27, 1981]



   Subpart C--Production of FBI Identification Records in Response to 
                  Written Requests by Subjects Thereof

    Source: Order No. 556-73, 38 FR 32806, Nov. 28, 1973, unless 
otherwise noted.



Sec. 16.30   Purpose and scope.

    This subpart contains the regulations of the Federal Bureau of 
Investigation, hereafter referred to as the FBI, concerning procedures 
to be followed when the subject of an identification record requests 
production thereof. It also contains the procedures for obtaining any 
change, correction or updating of such record.



Sec. 16.31   Definition of identification record.

    An FBI identification record, often referred to as a ``rap sheet'', 
is a listing of certain information taken from fingerprint cards 
submitted to and retained by the FBI in connection with arrests and, in 
some instances, includes information taken from fingerprint cards 
submitted in connection with Federal employment, naturalization, or 
military service. The identification record includes the name of the 
agency or institution which submitted the fingerprint card to the FBI. 
If the fingerprint card concerns a criminal offense, the identification 
record includes the date arrested or received, the arrest charge, and 
the disposition of the arrest if known to the FBI. All arrest data 
included in an identification record are obtained from fingerprint 
cards, disposition reports and other reports submitted by agencies 
having criminal justice responsibilities. Therefore, the FBI 
Identification Division is not the source of the arrest data reflected 
on an identification record.

[Order No. 960-81, 46 FR 52356, Oct. 27, 1981]



Sec. 16.32  Procedure to obtain an identification record.

    The subject of an identification record may obtain a copy thereof by 
submitting a written request via the U.S. mails directly to the FBI, 
Identification Division, Washington, DC 20537-9700, or may present his/
her written request in person during regular business hours to the FBI 
Identification Division, Room 11262, J. Edgar Hoover F.B.I. Building, 
Tenth Street and Pennsylvania Avenue, NW., Washington, DC. Such request 
must be accompanied by satisfactory proof of identity, which shall 
consist of name, date and place of birth and a set of rolled-inked 
fingerprint impressions placed upon fingerprint cards or forms commonly 
utilized for applicant or law enforcement purposes by law enforcement 
agencies.

[Order No. 1134-86, 51 FR 16677, May 6, 1986]



Sec. 16.33  Fee for production of identification record.

    Each written request for production of an identification record must 
be accompanied by a fee of $18 in the form of a certified check or money 
order, payable to the Treasury of the United States. This fee is 
established pursuant to the provisions of 31 U.S.C. 9701 and is based 
upon the clerical time beyond the first quarter hour to be spent in

[[Page 232]]

searching for, identifying, and reproducing each identification record 
requested as specified in Sec. 16.10. Any request for waiver of the fee 
shall accompany the original request for the identification record and 
shall include a claim and proof of indigency.

[Order No. 1943-94, 60 FR 38, Jan. 3, 1995]



Sec. 16.34  Procedure to obtain change, correction or updating of identification records.

    If, after reviewing his/her identification record, the subject 
thereof believes that it is incorrect or incomplete in any respect and 
wishes changes, corrections or updating of the alleged deficiency, he/
she should make application directly to the agency which contributed the 
questioned information. The subject of a record may also direct his/her 
challenge as to the accuracy or completeness of any entry on his/her 
record to the Assistant Director of the FBI Identification Division, 
Washington, DC 20537-9700. The FBI will then forward the challenge to 
the agency which submitted the data requesting that agency to verify or 
correct the challenged entry. Upon the receipt of an official 
communication directly from the agency which contributed the original 
information, the FBI Identification Division will make any changes 
necessary in accordance with the information supplied by that agency.

[Order No. 1134-86, 51 FR 16677, May 6, 1986]



Subpart D--Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974

    Source: Order No. 1055-84, 49 FR 12258, Mar. 29, 1984, unless 
otherwise noted.



Sec. 16.40  General provisions.

    (a) Purpose and scope. This subpart contains the regulations of the 
Department of Justice implementing the Privacy Act of 1974, 5 U.S.C. 
552a. The regulations apply to all records which are contained in 
systems of records maintained by the Department of Justice and which are 
retrieved by an individual's name or personal identifier. These 
regulations set forth the procedures by which an individual may seek 
access under the Privacy Act to records pertaining to him, may request 
correction of such records, or may seek an accounting of disclosures of 
such records by the Department. These regulations are applicable to each 
component of the Department.
    (b) Transfer of law enforcement records. The head of a component, or 
his designee, is authorized to make written requests under 5 U.S.C. 
552a(b)(7) for transfer of records maintained by other agencies which 
are necessary to carry out an authorized law enforcement activity of the 
component.
    (c) Definitions. As used in this subpart, the following terms shall 
have the following meanings:
    (1) Agency has the meaning given in 5 U.S.C. 551(l) and 5 U.S.C. 
552a(a)(1).
    (2) Component means each separate bureau, office, board, division, 
commission, service, or administration of the Department of Justice.
    (3) Record means any item, collection, or grouping of information 
about an individual which is maintained by any component within a system 
of records and which contains the individual's name, identifying number, 
symbol, or other identifying particular assigned to the individual, such 
as a fingerprint, voiceprint, or photograph.
    (4) Request for access means a request made pursuant to 5 U.S.C. 
552a(d)(1).
    (5) Request for correction means a request made pursuant to 5 U.S.C. 
552a(d)(2).
    (6) Request for an accounting means a request made pursuant to 5 
U.S.C. 552a(c)(3).
    (7) Requester means an individual who makes either a request for 
access, a request for correction, or a request for an accounting.
    (8) System of records means a group of any records under the control 
of any component from which information is retrieved by the name of an 
individual or by some identifying number, symbol, or other identifying 
particular assigned to that individual.



Sec. 16.41  Requests for access to records.

    (a) Procedure for making requests for access to records. An 
individual may request access to a record about him by appearing in 
person or by writing to

[[Page 233]]

the component that maintains the record. (Appendix I to this part lists 
the components of the Department of Justice and their addresses. The 
``Notice of Records Systems'' published by the National Archives and 
Records Service, General Services Administration, describes the systems 
of records maintained by all federal agencies, including the Department 
and its components.) A requester in need of guidance in defining his 
request may write to the FOIA/PA Section, Justice Management Division, 
U.S. Department of Justice, 10th Street and Constitution Avenue, NW., 
Washington, DC 20530. A request should be addressed to the component 
that maintains the requested record. Both the envelope and the request 
itself should be marked: ``Privacy Act Request.'' Requests for certain 
historical records of the Department maintained in National Archives and 
Records Service centers must be directed to the General Services 
Administration in accordance with its regulations.
    (b) Description of records sought. A request for access to records 
must describe the records sought in sufficient detail to enable 
Department personnel to locate the system of records containing the 
record with a reasonable amount of effort. Whenever possible, a request 
for access should describe the nature of the record sought, the date of 
the record or the period in which the record was compiled, and the name 
or identifying number of the system of records in which the requester 
believes the record is kept. The Notices the Department publishes in the 
Federal Register describing its components' systems of records may 
require, in appropriate instances, that requests for access to records 
describe the records sought with even greater specificity.
    (c) Agreement to pay fees. The filing of a request for access to a 
record under this subpart shall be deemed to constitute an agreement to 
pay all applicable fees charged under Sec. 16.47 up to $25.00. The 
component responsible for responding to the request shall confirm this 
agreement in its letter of acknowledgment to the requester. When filing 
a request, a requester may specify a willingness to pay a greater 
amount, if applicable.
    (d) Verification of identity. Any individual who submits a request 
for access to records must verify his identity in one of the following 
ways, unless the notice published in the Federal Register describing the 
relevant system of records provides otherwise:
    (1) Any requester making a request in writing must state in his 
request his full name, current address, and date and place of birth. In 
addition, a requester must provide with his request an example of his 
signature, which shall be notarized. Sample forms used for such 
notarized statement of identity may be obtained from the FOIA/PA 
Section, Justice Management Division, U.S. Department of Justice, 10th 
Street and Constitution Avenue, NW., Washington, DC 20530. In order to 
facilitate the identification and location of the requested records, a 
requester may also, at his option, include in his request his Social 
Security number.
    (2) Any requester submitting a request in person may provide to the 
component a form of official photographic identification, such as a 
passport or an identification badge. If a requester is unable to produce 
a form of photographic identification, he may provide to the component 
two or more acceptable forms of identification (such as a driver's 
license or credit card) bearing his name and address.
    (e) Verification of guardianship. The parent or guardian of a minor 
(or the guardian of a person judicially determined to be incompetent) 
who submits a request for access to the records of the minor or 
incompetent must establish:
    (1) His own identity and the identity of he subject of the record, 
as required in paragraph (d) of this section,
    (2) That the is the parent or guardian of the subject of the record, 
which may be proved by providing a copy of the subject's birth 
certificate showing parentage or by providing a court order establishing 
the guardianship, and
    (3) That he seeks to act on behalf of the subject of the record.



Sec. 16.42  Responses by components to requests for access to records.

    (a) In general. Except as otherwise provided in this section, the 
component that:

[[Page 234]]

    (1) First receives a request for access to a record, and
    (2) Has possession of the requested record

is the component ordinarily responsible for responding to the request.
    (b) Authority to grant or deny requests. The head of a component, or 
his designee, is authorized to grant or deny any request for access to a 
record of that component.
    (c) Initial action by the receiving component. When a component 
receives a request for access to a record in its possession, the 
component shall promptly determine whether another component, or another 
Government agency, is better able to determine whether the record is 
exempt, to any extent, from access. If the receiving component 
determines that it is the component or agency best able to determine 
whether the record is exempt, to any extent, from access, then the 
receiving component shall respond to the request. If the receiving 
component determines that it is not the component or agency best able to 
determine whether or not the record is exempt from access, the receiving 
component shall respond to the request, after consulting with the 
component or agency best able to determine whether or not the record is 
exempt from access. Under ordinary circumstances, the component or 
agency that generated or originated a requested record shall be presumed 
to be the component or agency best able to determine whether or not the 
record is exempt from access. However, nothing in this section shall 
prohibit a component that generated or originated a requested record 
from consulting with another component or agency, if the component that 
generated or originated the requested record determines that the other 
component or agency has an interest in the requested record or the 
information contained therein.
    (d) Law enforcement information. Whenever a request for access is 
made for a record containing information which relates to an 
investigation of a possible violation of criminal law or to a criminal 
law enforcement proceeding and which was generated or originated by 
another component or agency, the receiving component shall consult with 
that other component or agency, as appropriate.
    (e) Classified information. Whenever a request for access is made 
for a record containing information which has been classified, or which 
may be eligible for classification, by another component or agency under 
the provision of Executive Order 12356 or any other Executive order 
concerning the classification of records, the receiving component shall 
refer the responsibility for responding to the request to the component 
or agency that classified the information or should consider the 
information for classification. Whenever a record contains information 
that has been derivatively classified by a component because it contains 
information classified by another component or agency, the component 
shall refer the responsibility for responding to the request to the 
component or agency that classified the underlying information; however, 
such referral shall extend only to the information classified by the 
other component or agency.
    (f) Agreements regarding consultations. No provision of this section 
shall preclude formal or informal agreements between components, or 
between a component and another agency, to eliminate the need for 
consultations concerning requests or classes of requests.
    (g) Processing of requests for access not properly addressed. A 
request for access that is not properly addressed as specified in 
Sec. 16.41(a) of this subpart shall be forwarded to the FOIA/PA Section, 
Justice Management Division, which shall forward the request to the 
appropriate component or components for processing. A request not 
addressed to the appropriate component will be deemed not to have been 
received by the Department until the FOIA/PA Section has forwarded the 
request to the appropriate component and that component has received the 
request, or until the request would have been so forwarded and received 
with the exercise of reasonable diligence by Department personnel. A 
component receiving an improperly addressed request from the FOIA/PA 
Section shall notify the requester of the date on which it received the 
request.

[[Page 235]]

    (h) Date for determining responsive records. In determining records 
responsive to a request for access, a component ordinarily will include 
only those records within the component's possession and control as of 
the date of its receipt of the request.



Sec. 16.43  Form and content of component responses.

    (a) Form of notice granting request for access. After a component 
has made a determination to grant a request for access in whole or in 
part, the component shall so notify the requester in writing. The notice 
shall describe the manner in which access to the record will be granted 
and shall inform the requester of any fees to be charged in accordance 
with Sec. 16.47 of this subpart.
    (b) Form of notice denying request for access. A component denying a 
request for access in whole or in part shall so notify the requester in 
writing. The notice shall be signed by the head of the responsible 
component, or his designee, and shall include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason or reasons for the denial, 
including the Privacy Act exemption or exemptions which the component 
has relied upon in denying the request and a brief explanation of the 
manner in which the exemption or exemptions apply to each record 
withheld; and
    (3) A statement that the denial may be appealed under Sec. 16.48(a) 
of this subpart, and a description of the requirements of that 
subsection.
    (c) Record cannot be located or has been destroyed. If a requested 
record cannot be located from the information supplied, or is known or 
believed to have been destroyed or otherwise disposed of, the component 
shall so notify the requester in writing.
    (d) Medical records. When an individual requests medical records 
pertaining to himself which are not otherwise exempt from individual 
access, the component may advise the individual that the records will be 
provided only to a physician, designated by the individual, who requests 
the records and establishes his identity in writing. The designated 
physician shall determine which records should be provided to the 
individual and which records should not be disclosed to the individual 
because of possible harm to the individual or another person.



Sec. 16.44  Classified information.

    In processing a request for access to a record containing 
information that is classified or classifiable under Executive Order 
12356 or any other Executive order concerning the classification of 
records, a component shall review the information to determine whether 
it warrants classification. Information which does not warrant 
classification shall not be withheld from a requester on the basis of 5 
U.S.C. 552a(k)(1). The Office of Information and Privacy shall, upon 
receipt of any appeal involving classified or classifiable information, 
take appropriate action to ensure compliance with part 17 of this 
chapter.



Sec. 16.45  Records in exempt systems of records.

    (a) Law enforcement records exempted under subsection (k)(2). Before 
denying a request by an individual for access to a law enforcement 
record which has been exempted from access pursuant to 5 U.S.C. 
552a(k)(2), the component must review the requested record to determine 
whether information in the record has been used or is being used to deny 
the individual any right, privilege, or benefit for which he is eligible 
or to which he would otherwise be entitled under federal law. If so, the 
component shall notify the requester of the existence of the record and 
disclose such information to the requester, except to the extent that 
the information would identify a confidential source. In cases where 
disclosure of information in a law enforcement record could reasonably 
be expected to identify a confidential source, the record shall not be 
disclosed to the requester unless the component is able to delete from 
such information all material which would identify the confidential 
source.
    (b) Employee background investigations. When a requester requests 
access to a record pertaining to a background investigation and the 
record has been exempted from access pursuant to 5 U.S.C. 552a(k)(5), 
the record shall not be disclosed to the requester unless the

[[Page 236]]

component is able to delete from such record all information which would 
identify a confidential source.



Sec. 16.46  Access to records.

    (a) Manner of access. A component that has made a determination to 
grant a request for access shall grant the requester access to the 
requested record either by:
    (1) Providing the requester with a copy of the record or
    (2) Making the record available for inspection by the requester at a 
reasonable time and place.

The component shall in either case charge the requester applicable fees 
in accordance with the provisions of Sec. 16.47 of this subpart. If a 
component provides access to a record by making the record available for 
inspection by the requester, the manner of such inspection shall not 
unreasonably disrupt the operations of the component.
    (b) Accompanying person. A requester appearing in person to review 
his records may be accompanied by another individual of his own 
choosing. Both the requester and the accompanying person shall be 
required to sign a form stating that the Department of Justice is 
authorized to disclose the record in the presence of both individuals.



Sec. 16.47  Fees for access to records.

    (a) When charged. A component shall charge fees pursuant to 31 
U.S.C. 9701 and 5 U.S.C. 552a(f)(5) for the copying of records to afford 
access to individuals unless the component, in its discretion, waives or 
reduces the fees for good cause shown. A component shall charge fees 
only at the rate of $0.10 per page. For materials other than paper 
copies, the component may charge the direct costs of reproduction, but 
only if the requester has been notified of such costs before they are 
incurred. Fees shall not be charged where they would amount, in the 
aggregate, for one request or for a series of related requests, to less 
than $3.00. However, a component may, in its discretion, increase the 
amount of this minimum fee.
    (b) Notice of estimated fees in excess of $25. When a component 
determines or estimates that the fees to be charged under this section 
may amount to more than $25, the component shall notify the requester as 
soon as practicable of the actual or estimated amount of the fee, unless 
the requester has indicated in advance his willingness to pay a fee as 
high as that anticipated. (If only a portion of the fee can be estimated 
readily, the component shall advise the requester that the estimated fee 
may be only a portion of the total fee.) Where the estimated fee exceeds 
$25 and a component has so notified the requester, the component will be 
deemed not to have received the request for access to records until the 
requester has agreed to pay the anticipated fee. A notice to a requester 
pursuant to this paragraph shall offer him the opportunity to confer 
with Department personnel with the object of reformulating his request 
to meet his needs at a lower cost.
    (c) Form of payment. Requesters must pay fees by check or money 
order made payable to the Treasury of the United States.
    (d) Advance deposits. (1) Where the estimated fee chargeable under 
this section exceeds $25, a component may require a requester to make an 
advance deposit of 25 percent of the estimated fee or an advance payment 
of $25, whichever is greater.
    (2) Where a requester has previously failed to pay a fee charged 
under this part, the requester must pay the component or the Department 
the full amount owed and make an advance deposit of the full amount of 
any estimated fee before a component shall be required to process a new 
or pending request for access from that requester.



Sec. 16.48  Appeals from denials of access.

    (a) Appeals to the Attorney General. When a component denies in 
whole or in part a request for access to records, the requester may 
appeal the denial to the Attorney General within 30 days of his receipt 
of the notice denying his request. An appeal to the Attorney General 
shall be made in writing, addressed to the Office of Information and 
Privacy, U.S. Department of Justice, 10th Street and Constitution 
Avenue, NW., Washington, DC 20530. Both the envelope and the letter of 
appeal itself must be clearly marked: ``Privacy Act Appeal.'' An appeal 
not so addressed and

[[Page 237]]

marked shall be forwarded to the Office of Information and Privacy as 
soon as it is identified as an appeal under the Privacy Act. An appeal 
that is improperly addressed shall be deemed not to have been received 
by the Department until the Office of Information and Privacy receives 
the appeal, or until the appeal would have been so received with the 
exercise of reasonable diligence by Department personnel.
    (b) Action on appeals by the Office of Information and Privacy. 
Unless the Attorney General otherwise directs, the Director, Office of 
Information and Privacy, under the supervision of the Assistant Attorney 
General, Office of Legal Policy, shall act on behalf of the Attorney 
General on all appeals under this section, except that:
    (1) In the case of a denial of a request for access by the Assistant 
Attorney General, Office of Legal Policy, the Attorney General or his 
designee shall act on the appeal, and
    (2) A denial of a request for access by the Attorney General shall 
constitute the final action of the Department on that request.
    (c) Form of action on appeal. The disposition of an appeal shall be 
in writing. A decision affirming in whole or in part the denial of a 
request for access shall include a brief statement of the reason or 
reasons for the affirmance, including each Privacy Act exemption relied 
upon and its relation to each record withheld, and a statement that 
judicial review of the denial is available in the U.S. District Court 
for the judicial district in which the requester resides or has his 
principal place of business, the judicial district in which the 
requested records are located, or the District of Columbia. If the 
denial of a request for access is reversed on appeal, the requester 
shall be so notified and the request shall be processed promptly in 
accordance with the decision on appeal.



Sec. 16.49  Preservation of records.

    Each component shall preserve all correspondence relating to the 
requests it receives under this subpart, and all records processed 
pursuant to such requests, until such time as the destruction of such 
correspondence and records is authorized pursuant to title 44 of the 
U.S. Code. Under no circumstances shall records be destroyed while they 
are the subject of a pending request for access, appeal, or lawsuit 
under the Act.



Sec. 16.50  Request for correction of records.

    (a) How made. Unless a record is exempted from correction and 
amendment, an individual may submit a request for correction of a record 
pertaining to him. A request for correction must be made in writing and 
must be addressed to the component that maintains the record. (Appendix 
I to this part lists the components of the Department and their 
addresses.) The request must identify the particular record in question, 
state the correction sought, and set forth the justification for the 
correction. Both the envelope and the request for correction itself must 
be clearly marked: ``Privacy Act Correction Request.'' If a requester 
believes that the same record appears in more than one system of 
records, he should address his request for correction to each component 
that controls a system of records which contains the record.
    (b) Initial determination. Within 10 working days of receiving a 
request for correction, a component shall notify the requester whether 
his request will be granted or denied, in whole or in part. If the 
component grants the request for correction in whole or in part, it 
shall advise the requester of his right to obtain a copy of the 
corrected record, in releasable form, upon request. If the component 
denies the request for correction in whole or in part, it shall notify 
the requester in writing of the denial. The notice of denial shall state 
the reason or reasons for the denial and advise the requester of his 
right to appeal.
    (c) Appeals. When a request for correction is denied in whole or in 
part, the requester may appeal the denial to the Attorney General within 
30 days of his receipt of the notice denying his request. An appeal to 
the Attorney General shall be made in writing, shall set forth the 
specific item of information sought to be corrected, and shall include 
any documentation said to justify the correction. An appeal shall be

[[Page 238]]

addressed to the Office of Information and Privacy, U.S. Department of 
Justice, 10th Street and Constitution Avenue, NW., Washington, DC 20530, 
unless the appeal is from a denial by the Assistant Attorney General, 
Office of Legal Policy, in which case the appeal shall be addressed to 
the Attorney General, at the same address. Both the envelope and the 
letter of appeal itself must be clearly marked: ``Privacy Act Correction 
Appeal.''
    (d) Determination on appeal. The Director, Office of Information and 
Privacy, under the supervision of the Assistant Attorney General, Office 
of Legal Policy, or the Attorney General in appropriate cases, shall 
decide all appeals from denials of requests to correct records. All such 
appeals shall be decided within 30 working days of receipt of the 
appeal, unless there is good cause to extend this period. If the denial 
of a request is affirmed on appeal, the requester shall be so notified 
in writing and advised of:
    (1) The reason or reasons the denial has been affirmed,
    (2) The requester's right to file a Statement of Disagreement, as 
provided in paragraph (e) of this section, and
    (3) The requester's right to obtain judicial review of the denial in 
the U.S. District Court for the judicial district in which the requester 
resides or has his principal place of business, the judicial district in 
which the record is located, or the District of Columbia. If the denial 
is reversed on appeal, the requester shall be so notified and the 
request for correction shall be remanded to the component that denied 
the request for processing in accordance with the decision on appeal.
    (e) Statements of disagreement. A requester whose appeal under this 
section is denied shall have the right to file a Statement of 
Disagreement with the Office of Information and Privacy, 10th Street and 
Constitution Avenue, NW., Washington, DC 20530, within 30 days of 
receiving notice of denial of his appeal. Statements of Disagreement may 
not exceed one typed page per fact disputed. Statements exceeding this 
limit shall be returned to the requester for condensation. Upon receipt 
of a Statement of Disagreement under this section, the Director, Office 
of Information and Privacy, shall have the statement included in the 
system of records in which the disputed record is maintained and shall 
have the disputed record marked so as to indicate (1) that a Statement 
of Disagreement has been filed, and (2) where in the system of records 
the Statement may be found.
    (f) Notices of correction or disagreement. Within 30 working days of 
the correction of a record, the component that maintains the record 
shall advise all components or agencies to which it previously disclosed 
the record that the record has been corrected. Whenever an individual 
has filed a Statement of Disagreement, a component shall append a copy 
of the Statement to the disputed record whenever the record is 
disclosed. The component may also append to the disputed record any 
written statement it has made giving the component's reasons for denying 
the request to correct the record.



Sec. 16.51  Records not subject to correction.

    The following records are not subject to correction or amendment as 
provided in Sec. 16.50 of this subpart:
    (a) Transcripts of testimony given under oath or written statements 
made under oath;
    (b) Transcripts of grand jury proceedings, judicial proceedings, or 
quasi-judicial proceedings which constitute the official record of such 
proceedings;
    (c) Presentence reports which are the property of the courts, but 
are maintained by a component in a system of records; and
    (d) Records duly exempted from correction pursuant to 5 U.S.C. 
552a(j) or 552a(k) by notice published in the Federal Register.



Sec. 16.52  Request for accounting of record disclosures.

    (a) An individual may request a component that maintains a record 
pertaining to him to provide him with an accounting of those other 
agencies to which the component has disclosed the record, and the date, 
nature, and purpose of each disclosure. A request for an accounting must 
be made in writing and must identify the particular record for which the 
accounting is requested.

[[Page 239]]

The request also must be addressed to the component that maintains the 
particular record, and both the envelope and the request itself must 
clearly be marked: ``Privacy Act Accounting Request.'' (Appendix I to 
this part lists the components of the Department and their addresses.)
    (b) Components shall not be required to provide an accounting to an 
individual to the extent that the accounting relates to:
    (1) Records for which no accounting must be kept pursuant to 5 
U.S.C. 552a(c)(1),
    (2) Disclosures of records to law enforcement agencies for lawful 
law enforcement activities, pursuant to written requests from such law 
enforcement agencies specifying records sought and the law enforcement 
activities for which the records are sought, under 5 U.S.C. 552a(c)(3) 
and (b)(7), or
    (3) Records for which an accounting need not be disclosed pursuant 
to 5 U.S.C. 552a (j) or (k).
    (c) A denial of a request for an accounting may be appealed to the 
Attorney General in the same manner as a denial of a request for access, 
with both the envelope and the letter of appeal itself clearly marked: 
``Privacy Act Accounting Appeal.''



Sec. 16.53  Notice of subpoenas and emergency disclosures.

    (a) Subpoenas. When records pertaining to an individual are 
subpoenaed by a grand jury, court, or quasi-judicial authority, the 
official served with the subpoena shall be responsible for ensuring that 
written notice of its service is forwarded to the individual. Notice 
shall be provided within 10 working days of the service of the subpoena 
or, in the case of a grand jury subpoena, within 10 working days of its 
becoming a matter of public record. Notice shall be mailed to the last 
known address of the individual and shall contain the following 
information: The date the subpoena is returnable, the court or quasi-
judicial authority to which it is returnable, the name and number of the 
case or proceeding, and the nature of the records sought. Notice of the 
service of a subpoena is not required if the system of records has been 
exempted from the notice requirement of 5 U.S.C. 522a(e)(8), pursuant to 
5 U.S.C. 552a(j), by a Notice of Exemption published in the Federal 
Register.
    (b) Emergency disclosures. If the record of an individual has been 
disclosed to any person under compelling circumstances affecting the 
health or safety of any person, as described in 5 U.S.C. 552a(b)(8), the 
individual to whom the record pertains shall be notified of the 
disclosure at his last known address within 10 working days. The notice 
of such disclosure shall be in writing and shall state the nature of the 
information disclosed, the person or agency to whom it was disclosed, 
the date of disclosure, and the compelling circumstances justifying the 
disclosure. The officer who made or authorized the disclosure shall be 
responsible for providing such notification.



Sec. 16.54  Security of systems of records.

    (a) The Assistant Attorney General for Administration, Justice 
Management Division, shall be responsible for issuing regulations 
governing the security of systems of records. To the extent that such 
regulations govern the security of automated systems of records, the 
regulations shall be consistent with the guidelines developed by the 
National Bureau of Standards.
    (b) Each component shall establish administrative and physical 
controls to prevent unauthorized access to its systems of records, to 
prevent the unauthorized disclosure of records, and to prevent the 
physical damage or destruction of records. The stringency of such 
controls shall reflect the sensitivity of the records the controls 
protect. At a minimum, however, each component's administrative and 
physical controls shall ensure that:
    (1) Records are protected from public view,
    (2) The area in which records are kept is supervised during business 
hours to prevent unauthorized persons from having access to the records, 
and
    (3) Records are inaccessible to unauthorized persons outside of 
business hours.
    (c) Each component shall establish rules restricting access to 
records to only those individuals within the Department who must have 
access to such records in order to perform their

[[Page 240]]

duties. Each component also shall adopt procedures to prevent the 
accidental disclosure of records or the accidental granting of access to 
records.



Sec. 16.55  Contracting record systems.

    (a) No component of the Department shall contract for the operation 
of a record system by or on behalf of the Department without the express 
approval of the Attorney General, the Deputy Attorney General, or the 
Assistant Attorney General for Administration.
    (b) Any contract which is approved shall contain the standard 
contract requirements promulgated by the General Services Administration 
to ensure compliance with the requirements imposed by the Privacy Act. 
The contracting component shall have responsibility for ensuring that 
the contracter complies with the contract requirements relating to 
privacy.



Sec. 16.56  Use and collection of social security numbers.

    (a) Each system manager of a system of records which utilizes Social 
Security numbers as a method of identification without statutory 
authorization, or authorization by regulation adopted prior to January 
1, 1975, shall take steps to revise the system to avoid future 
collection and use of the Social Security numbers.
    (b) The head of each component shall take such measures as are 
necessary to ensure that employees authorized to collect information 
from individuals are advised that individuals may not be required to 
furnish Social Security numbers without statutory or regulatory 
authorization and that individuals who are requested to provide Social 
Security numbers voluntarily must be advised that furnishing the number 
is not required and that no penalty or denial of benefits will flow from 
the refusal to provide it.



Sec. 16.57  Employee standards of conduct.

    (a) Each component shall inform its employees of the provisions of 
the Privacy Act, including the Act's civil liability and criminal 
penalty provisions. Each component also shall notify its employees that 
they have a duty to:
    (1) Protect the security of records,
    (2) Ensure the accuracy, relevance, timeliness, and completeness of 
records,
    (3) Avoid the unauthorized disclosure, either verbal or written, of 
records, and
    (4) Ensure that the component maintains no system of records without 
public notice.
    (b) Except to the extent that the Privacy Act permits such 
activities, an employee of the Department of Justice shall:
    (1) Not collect information of a personal nature from individuals 
unless the employee is authorized to collect such information to perform 
a function or discharge a responsibility of the Department;
    (2) Collect from individuals only that information which is 
necessary to the performance of the functions or to the discharge of the 
responsibilities of the Department;
    (3) Collect information about an individual directly from that 
individual, whenever practicable;
    (4) Inform each individual from whom information is collected of:
    (i) The legal authority that authorizes the Department to collect 
such information,
    (ii) The principal purposes for which the Department intends to use 
the information,
    (iii) The routine uses the Department may make of the information, 
and
    (iv) The practical and legal effects upon the individual of not 
furnishing the information;
    (5) Maintain all records which are used by the agency in making any 
determination about any individual with such accuracy, relevance, 
timeliness, and completeness as to ensure fairness to the individual in 
the determination;
    (6) Except as to disclosures to an agency or pursuant to 5 U.S.C. 
552a(b)(2), make reasonable efforts, prior to disseminating any record 
about an individual, to ensure that such records are accurate, relevant, 
timely, and complete;
    (7) Maintain no record concerning an individual's religious or 
political beliefs or activities, or his membership in associations or 
organizations, unless:

[[Page 241]]

    (i) The individual has volunteered such information for his own 
benefit,
    (ii) A statute expressly authorizes the Department to collect, 
maintain, use, or disseminate the information, or
    (iii) The individual's beliefs, activities, or membership are 
pertinent to and within the scope of an authorized law enforcement or 
correctional activity;
    (8) Notify the head of the component of the existence or development 
of any system of records that has not been disclosed to the public;
    (9) When required by the Act, maintain an accounting in the 
prescribed form of all disclosures of records by the Department to 
agencies or individual's whether verbally or in writing;
    (10) Disclose no record to anyone, except a component, for any use, 
unless authorized by the Act;
    (11) Maintain and use records with care to prevent the inadvertent 
disclosure of a record to anyone; and
    (12) Notify the head of the component of any record that contains 
information that the Act or the foregoing provisions of this paragraph 
do not permit the Department to maintain.
    (c) Not less than once each year, the head of each component shall 
review the systems of records maintained by that component to ensure 
that the component is in compliance with the provisions of the Privacy 
Act.



Sec. 16.58  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under 5 U.S.C. 552a.

            Appendix A to Subpart D--Delegation of Authority

    1. By virtue of the authority vested in me by Sec. 16.45 of title 28 
of the Code of Federal Regulations, the authority to deny requests under 
the Privacy Act of 1974 is delegated to the occupant of the position of 
Chief, Freedom of Information-Privacy Acts Section, Records Management 
Division, Federal Bureau of Investigation. This same authority is 
delegated to the occupant of the position of Special Agent in Charge of 
each of the field offices of the Federal Bureau of Investigation for 
records in their custody and control.
    2. This directive is effective June 9, 1981.

[46 FR 36140, July 14, 1981, as amended at 49 FR 11625, Mar. 27, 1984]

            Appendix B to Subpart D--Delegation of Authority

    (a) By virtue of the authority vested in me by Sec. 16.45(a) of 
title 28 of the Code of Federal Regulations, I hereby delegate authority 
to the United States Attorney for the District of Columbia to:
    (1) Respond initially to requests;
    (2) Grant and deny access to records;
    (3) Communicate directly with the Office of Information and Privacy 
concerning administrative appeals; and
    (4) Prepare affidavits, litigation reports, and other necessary 
documents in preparation for civil litigation in suits pursuant to 5 
U.S.C. 552a(g)(1)(B).
    (b) This authority is limited to those records which are in the 
systems of records under the custody and control of the United States 
Attorney for the District of Columbia. The authority delegated herein 
may be redelegated.
    (c) This directive is effective immediately.

[49 FR 11625, Mar. 27, 1984]



      Subpart E--Exemption of Records Systems Under the Privacy Act

    Source: Order No. 645-76, 41 FR 12640, Mar. 26, 1976, unless 
otherwise noted.



Sec. 16.70  Exemption of the Office of the Attorney General System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4); (d); (e) (1), (2) and (3), (e)(4) (G) and (H), (e)(5); and 
(g):

    (1) General Files System of the Office of the Attorney General 
(JUSTICE/OAG-001).

These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1), 
(k)(2), and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest on the part of the Department of 
Justice as well as

[[Page 242]]

the recipient agency. This would permit record subjects to impede the 
investigation, e.g., destroy evidence, intimidate potential witnesses, 
or flee the area to avoid inquiries or apprehension by law enforcement 
personnel.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) because the records contained in this system 
relate to official Federal investigations. Individual access to these 
records might compromise ongoing investigations, reveal confidential 
informants or constitute unwarranted invasions of the personal privacy 
of third parties who are involved in a certain investigation. Amendment 
of the records would interfere with ongoing criminal law enforcement 
proceedings and impose an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede the specific investigative process if it were necessary to 
assure the relevance, accuracy, timeliness and completeness of all 
information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations of duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (8) From subsection (g) because this system is exempt from the 
access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.

[Order No. 31-85, 51 FR 751, Jan. 8, 1986]



Sec. 16.71  Exemption of the Office of the Deputy Attorney General System--limited access.

    (a) The following systems of records and exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):

    (1) Presidential Appointee Candidate Records System (JUSTICE/DAG-
006).
    (2) Presidential Appointee Records System (JUSTICE/DAG-007).
    (3) Special Candidates for Presidential Appointments Records System 
(JUSTICE/DAG-008).
    (4) Miscellaneous Attorney Personnel Records System (JUSTICE/DAG-
011).

These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).

    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse to provide information 
concerning a candidate for a Presidential appointee or Department 
attorney position. Access could reveal the identity of the source of the 
information and constitute a breach of the promise of confidentiality on 
the part of the Department of Justice. Such breaches ultimately would 
restrict the free flow of information vital to a determination of a 
candidate's qualifications and suitability.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluative purposes, it is impossible to determine 
in advance

[[Page 243]]

what exact information may be of assistance in determining the 
qualifications and suitability of a candidate. Information which may 
appear irrelevant, when combined with other seemingly irrelevant 
information, can on occasion provide a composite picture of a candidate 
for a position which assists in determining whether that candidate 
should be nominated for appointment.
    (c) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (2), (3) and (5); and (g):

    (1) Drug Enforcement Task Force Evaluation and Reporting System 
(JUSTICE/DAG-003).
    (2) General Files System of the Office of the Deputy Attorney 
General (JUSTICE/DAG-013).

    (d) In addition, the Drug Enforcement Task Force Evaluation and 
Reporting System is exempt from 5 U.S.C. 552a(e)(4)(G) and (H). The 
exemptions for the Drug Enforcement Task Force Evaluation and Reporting 
System apply only to the extent that information is subject to exemption 
pursuant to 5 U.S.C. 552a(j)(2) and (K)(2). The exemptions for the 
General Files System apply only to the extent that information is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) and 
(k)(5).
    (e) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
could reveal investigative interest on the part of the Department of 
Justice, as well as the recipient agency. This would permit record 
subjects to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid inquiries or apprehension 
by law enforcement personnel. Further, making available to a record 
subject the accounting of disclosures could reveal the identity of a 
confidential source. In addition, release of an accounting of 
disclosures from the General Files System may reveal information that is 
properly classified pursuant to Executive Order 12356, and thereby cause 
damage to the national security.
    (2) From subsection (c)(4) because these systems are exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) because the records contained in these 
systems relate to official Federal investigations. Individual access to 
these records could compromise ongoing investigations, reveal 
confidential informants and/or sensitive investigative techniques used 
in particular investigations, or constitute unwarranted invasions of the 
personal privacy of third parties who are involved in a certain 
investigation. In addition, release of records from the General Files 
System may reveal information that is properly classified pursuant to 
Executive Order 12356, and thereby cause damage to the national 
security. Amendment of the records in either of these systems would 
interfere with ongoing law enforcement proceedings and impose an 
impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (4) From subsections (e)(1) and (e)(5) because in the course of law 
enforcement investigations information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede any investigative process, whether civil or criminal, if it 
were necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and may therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this

[[Page 244]]

subsection during the course of an investigation could impede the 
information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H) because no access to these 
records is available under subsection (d) of the Privacy Act. (This 
exemption applies only to the Drug Enforcement Task Force Evaluation and 
Reporting System.)
    (8) From subsection (g) because these systems of records are exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.


[Order No. 57-91, 56 FR 58305, Nov. 19, 1991]



Sec. 16.72  Exemption of Office of the Associate Attorney General System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4); (d); (e)(1), (2), (3) and (5); and (g):

    (1) General Files System of the Office of the Associate Attorney 
General (JUSTICE/AAG-001).

These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) 
and (k)(5).

    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
could reveal investigative interest on the part of the Department of 
Justice, as well as the recipient agency. This would permit record 
subjects to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid inquiries or apprehension 
by law enforcement personnel. Further, making available to a record 
subject the accounting of disclosures could reveal the identity of a 
confidential source. In addition, release of an accounting of 
disclosures may reveal information that is properly classified pursuant 
to Executive Order 12356, and thereby cause damage to the national 
security.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j)(2), 
(k)(1), (k)(2) and (k)(5) of the Privacy Act.
    (3) From subsection (d) because the records contained in this system 
relate to official Federal investigations. Individual access to these 
records could compromise ongoing investigations, reveal confidential 
informants and/or sensitive investigative techniques used in particular 
investigations, or constitute unwarranted invasions of the personal 
privacy of third parties who are involved in a certain investigation. In 
addition, release of these records may reveal information that is 
properly classified pursuant to Executive Order 12356, and thereby cause 
damage to the national security. Amendment of the records in this system 
would interfere with ongoing law enforcement proceedings and impose an 
impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (4) From subsections (e)(1) and (e)(5) because in the course of law 
enforcement investigations information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede any investigative process, whether civil or criminal, if it 
were necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and may therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.

[[Page 245]]

    (7) From subsection (g) because this system of records is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1), (k)(2) and (k)(5) of the Privacy Act.

[Order No. 57-91, 56 FR 58305, Nov. 19, 1991]



Sec. 16.73  Exemption of Office of Legal Policy System--limited access.

    (a) The following system of records is exempt from 5 U.S.C 552a 
(d)(1), (2), (3) and (4); (e)(1) and (2), (e)(4)(G) and (H), (e)(5); and 
(g):

    (1) Freedom of Information and Privacy Appeals Index (JUSTICE/OLP-
001).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(2) 
and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsections (d)(1), (2), (3), and (4) to the extent that 
information in this record system relates to official Federal 
investigations and matters of law enforcement. Individual access to 
these records might compromise ongoing investigations, reveal 
confidential informants or constitute unwarranted invasions of the 
personal privacy of third parties who are involved in a certain 
investigation. Amendment of the records would interfere with ongoing 
criminal law enforcement proceedings and impose an impossible 
administrative burden by requiring criminal investigations to be 
continuously reinvestigated.
    (2) From subsections (e)(1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede the specific investigative process if it were necessary to 
assure the relevance, accuracy, timeliness, and completeness of all 
information obtained.
    (3) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (4) From subsections (e)(4)(G) and (H) because this system is exempt 
from the access provisions of subsection (d) pursuant to subsections (j) 
and (k) of the Privacy Act.
    (5) From subsection (g) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (c) The following system of records is exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):

    (1) U.S. Judges Records System (JUSTICE/OLP-002).

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contracted who, 
without an assurance of anonymity, refuse to provide information 
concerning a candidate for a judgeship. Access could reveal the identity 
of the source of the information and constitute a breach of the promised 
confidentiality on the part of the Department. Such breaches ultimately 
would restrict the free flow of information vital to the determination 
of a candidate's qualifications and suitability.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluative purposes, it is impossible to determine 
advance what exact information may be of assistance in determining the 
qualifications and suitability of a candidate. Information which may 
seem irrelevant, when combined with other seemingly irrelevant 
information, can on occasion provide a composite picture of a candidate 
which assists in determining whether that

[[Page 246]]

candidate should be nominated for appointment.
    (e) The following system of records is exempt from U.S.C. 552a(c) 
(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H) (e)(5); and 
(g):

    (1) General Files System of the Office of Legal Policy (JUSTICE/OLP-
003).

These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), 
and (k)(5).
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest on the part of the Department as 
well as the recipient agency. This would permit record subjects to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid inquiries or apprehension by law 
enforcement personnel.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) because the records contained in this system 
relate to official Federal investigations. Individual access to these 
records might compromise ongoing investigations, reveal confidential 
informants, or constitute unwarranted invasions of the personal privacy 
of third parties who are involved in a certain investigation. Amendment 
of records would interfere with ongoing criminal law enforcement 
proceedings and impose an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
since it may aid in establishing patterns of criminal activity. 
Moreover, it would impede the specific investigation process if it were 
necessary to assure the relevance, accuracy, timeliness and completeness 
of all information obtained.
    (5) From subsections (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations and duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (8) From subsection (g) because this system is exempt from the 
access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (g) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5); and 
(g):

    (1) Declassification Review System (JUSTICE/OLP-004).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552(j)(2), (k)(1), 
(k)(2), and (k)(5).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest on the part of the Department of 
Justice as well as the recipient agency. This would permit record 
subjects to impede the investigation e.g., destroy evidence, intimidate 
potential witnesses, or flee

[[Page 247]]

the area to avoid inquiries or apprehension by law enforcement 
personnel.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) to the extent that information in this 
record system relates to official Federal investigations and matters of 
law enforcement and/or is properly classified pursuant to E.O. 12356. 
Individual access to these records might compromise ongoing 
investigations, reveal confidential sources or constitute unwarranted 
invasions of the personal privacy of third parties who are involved in a 
certain investigation, or jepoardize national security or foreign policy 
interests. Amendment of the records would interfere with ongoing 
criminal law enforcement proceedings and impose an impossible 
administrative burden by requiring criminal investigations to be 
continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
which may aid in establishing patterns of criminal activity. Moreover, 
it would impede the specific investigative process if it were necessary 
to assure the relevance, accuracy, timeliness, and completeness of all 
information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H), and (g) because this system 
is exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.

[Order No. 34-85, 51 FR 754, Jan. 8, 1986. Redesignated by Order No. 6-
86, 51 FR 15476, Apr. 24, 1986 and further redesignated and amended by 
Order No. 19-86, 51 FR 39373, Oct. 28, 1986]



Sec. 16.74  Exemption of Office of Intelligence Policy and Review Systems--limited access.

    (a) The following systems of records is exempt from 5 U.S.C. 552a 
(c)(3), (c)(4), (d), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(8), (f) 
and (g);

    (1) Policy and Operational Records System (JUSTICE/OIPR-001);
    (2) Foreign Intelligence Surveillance Act Records System (JUSTICE/
OIPR-002);
    (3) Litigation Records System (JUSTICE/OIPR-003); and
    (4) Domestic Security/Terrorism Investigations Records System 
(JUSTICE/OIPR-004).

These exemptions apply only to the extent that information in those 
systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) 
and (k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of the disclosure 
accounting would put the target of a surveillance or investigation on 
notice of the investigation or surveillance and would thereby seriously 
hinder authorized United States intelligence activities.
    (2) From subsections (c)(4), (d), (e)(4)(G), (e)(4)(H), (f) and (g) 
because these provisions contemplate individual access to records and 
such access would compromise ongoing surveillances or investigations and 
reveal the sources and methods of an investigation.
    (3) From subsection (e)(2) because, although this office does not 
conduct investigations, the collection efforts of agencies that supply 
information to this office would be thwarted if the agency were required 
to collect information with the subject's knowledge.
    (4) From subsections (e)(3) and (e)(8) because disclosure and notice 
would

[[Page 248]]

provide the subject with substantial information which could impede of 
compromise an investigation. For example, an investigatory subject 
could, once made aware that an investigation was ongoing, alter his 
manner of engaging in intelligence or terrorist activities in order to 
avoid detection.

[Order No. 19-86, 51 FR 39374, Oct. 28, 1986]



Sec. 16.75  Exemption of the Office of the Inspector General Systems/Limited Access.

    (a) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e)(1), (2), (3), (5), and (8), and (g) of 5 U.S.C. 552a. In addition, 
the following system of records is exempted pursuant to the provisions 
of 5 U.S.C. 552a(k)(1) and (k)(2) from subsections (c)(3), (d), and 
(e)(1) of 5 U.S.C. 552a:
    (1) Office of the Inspector General Investigative Records (JUSTICE/
OIG-001).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) 
and (k)(2). Where compliance would not appear to interfere with or 
adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, e.g., public source materials, the applicable 
exemption may be waived, either partially or totally, by the Office of 
the Inspector General (OIG).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
could alert the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of the 
investigation and the fact that they are subjects of the investigation, 
and reveal investigative interest by not only the OIG, but also by the 
recipient agency. Since release of such information to the subjects of 
an investigation would provide them with significant information 
concerning the nature of the investigation, release could result in the 
destruction of documentary evidence, improper influencing of witnesses, 
endangerment of the physical safety of confidential sources, witnesses, 
and law enforcement personnel, the fabrication of testimony, flight of 
the subject from the area, and other activities that could impede or 
compromise the investigation. In addition, accounting for each 
disclosure could result in the release of properly classified 
information which would compromise the national defense or disrupt 
foreign policy.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation, of the existence of that 
investigation; of the nature and scope of the information and evidence 
obtained as to his activities; of the identity of confidential sources, 
witnesses, and law enforcement personnel, and of information that may 
enable the subject to avoid detection or apprehension. These factors 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation, endanger 
the physical safety of confidential sources, witnesses, and law 
enforcement personnel, and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of properly classified information which would compromise the 
national defense or disrupt foreign policy. Amendment of the records 
would interfere with ongoing investigations and law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with

[[Page 249]]

the law enforcement responsibilities of the OIG for the following 
reasons:
    (i) It is not possible to detect relevance or necessity of specific 
information in the early stages of a civil, criminal or other law 
enforcement investigation, case, or matter, including investigations in 
which use is made of properly classified information. Relevance and 
necessity are questions of judgment and timing, and it is only after the 
information is evaluated that the relevance and necessity of such 
information can be established.
    (ii) During the course of any investigation, the OIG may obtain 
information concerning actual or potential violations of laws other than 
those within the scope of its jurisdiction. In the interest of effective 
law enforcement, the OIG should retain this information, as it may aid 
in establishing patterns of criminal activity, and can provide valuable 
leads for Federal and other law enforcement agencies.
    (iii) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information may be supplied to an 
investigator which relates to matters incidental to the primary purpose 
of the investigation but which may relate also to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts, violations of rules of conduct, or 
any other misconduct must be obtained from other sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful litigation.
    (6) From subsection (e)(3) because the application of this provision 
would provide the subject of an investigation with substantial 
information which could impede or compromise the investigation. 
Providing such notice to a subject of an investigation could interfere 
with an undercover investigation by revealing its existence, and could 
endanger the physical safety of confidential sources, witnesses, and 
investigators by revealing their identities.
    (7) From subsection (e)(5) because the application of this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In the 
collection of information for law enforcement purposes, it is impossible 
to determine in advance what information is accurate, relevant, timely, 
and complete. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
an investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigative report, and 
thereby impede effective law enforcement.
    (8) From subsection (e)(8) because the application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigative techniques, 
procedures, or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2) and (k)(1) and (k)(2) of the Privacy Act.
    (c) The following system of records is exempted from 5 U.S.C. 
552a(d).
    (1) Office of the Inspector General, Freedom of Information/Privacy 
Acts (FOI/PA) Records (JUSTICE/OIG-003).

This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1), 
and (k)(2). To the extent that information in a record pertaining to an 
individual does not relate to official Federal investigations and law 
enforcement matters, the exemption does not apply. In addition,

[[Page 250]]

where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, the applicable exemption may be 
waived by the Office of the Inspector General (OIG).
    (d) Exemption from subsection (d) is justified for the following 
reasons:
    (1) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation of the existence of that 
investigation; of the nature and scope of the information and evidence 
obtained as to his activities; of the identity of confidential sources, 
witnesses, and law enforcement personnel; and of information that may 
enable the subject to avoid detection or apprehension. These factors 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation, endanger 
the physical safety of confidential sources, witnesses, and law 
enforcement personnel, and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of properly classified information which would compromise the 
national defense or disrupt foreign policy. Amendment of the records 
would interfere with ongoing investigations and law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated.
    (2) [Reserved]

[Order No. 63-92, 57 FR 8263, Mar. 9, 1992, as amended by Order No. 64-
92, 57 FR 8263, Mar. 9, 1992]



Sec. 16.76   Exemption of Justice Management Division.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d):

    (1) Controlled Substances Act Nonpublic Records (JUSTICE/JMD-002).

This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (b) Exemption from subsection (d) is justified for the following 
reasons:
    (1) Public Law 91-513 (Controlled Substances Act), section 404(b) 
states that the nonpublic record ``shall be retained by the Department 
of Justice solely for the purpose of use by the courts in determining 
whether or not, in subsequent proceedings, such person qualifies under 
this subsection.''
    (2) Information in this system consists of arrest records, including 
those of co-defendants. The records include reports of informants and 
investigations. Therefore, access could disclose investigative 
techniques, reveal the identity of confidential sources, and invade the 
privacy of third parties.
    (c) The following system of records is exempt from 5 U.S.C. 552a(d):

    (1) Security Clearance Information System (SCIS) (JUSTICE/JMD-008)--
Limited access.

This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and 
(k)(5).
    (d) Exemption from subsection (d) is justified for the following 
reason:
    (1) Access to records in the system would reveal the identity(ies) 
of the source(s) of information collected in the course of a background 
investigation. Such knowledge might be harmful to the source who 
provided the information as well as violate the explicit or implicit 
promise of confidentiality made to the source during the investigation. 
Access may also reveal information relating to actual or potential 
criminal investigations.
    (2) [Reserved]
    (e) Consistent with the legislative purpose of the Privacy Act of 
1974, the Justice Management Division will grant access to nonexempt 
material in SCIS records which are maintained by the Security Programs 
Staff. Disclosure will be governed by the Department's Privacy 
regulations, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation

[[Page 251]]

of an actual or potential criminal violation will not be alerted to the 
investigation; the physical safety of witnesses, informants and law 
enforcement personnel will not be endangered; the privacy of third 
parties will not be violated; and that the disclosure would not 
otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from this system 
will be made on a case-by-case basis.
    (f) The following system of records is exempt from 5 U.S.C. 552a(d);

    (1) Freedom of Information/Privacy Act Records System (JUSTICE/JMD-
019).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (g) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d) because of the need to safeguard the 
identity of confidential informants and avoid interference with ongoing 
investigations or law enforcement activities by preventing premature 
disclosure of information relating to those efforts.
    (2) [Reserved]
    (h) Consistent with the legislative purpose of the Privacy Act of 
1974, the Justice Management Division will grant access to non-exempt 
material in FOIA/PA records. Exemptions will apply only to the extent 
that other correspondence or internal memoranda retained with the 
request file contain investigatory material for law enforcement 
purposes.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
688-77, 42 FR 9999, Feb. 18, 1977; Order No. 899-80, 45 FR 43703, June 
30, 1980; Order No. 6-86, 51 FR 15476, Apr. 24, 1986]



Sec. 16.77  Exemption of U.S. Trustee Program System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4); (d); (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8); (f) and (g):

    (1) U.S. Trustee Program Case Referral System, JUSTICE/UST-004.

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting would permit the subject of an investigation to obtain 
valuable information concerning the nature of that investigation. This 
would permit record subjects to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid 
inquiries or apprehension by law enforcement personnel.
    (2) From subsection (c)(4) since an exemption being claimed for 
subsection (d) makes this subsection inapplicable.
    (3) From subsection (d) because access to the records contained in 
this system might compromise ongoing investigations, reveal confidential 
informants, or constitute unwarranted invasions of the personal privacy 
of third parties who are involved in a certain investigation. Amendment 
of the records would interfere with ongoing criminal law enforcement 
proceedings and impose an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (4) From subsections (e)(1) and (e)(5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interest of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede the specific investigative process if it were necessary to 
assure the relevance, accuracy, timeliness, and completeness of all 
information obtained.
    (5) From subsection (e)(2) because in a criminal investigation the 
requirement that information be collected to the greatest extent 
possible from the

[[Page 252]]

subject individual would present a serious impediment to law enforcement 
because the subject of the investigation would be placed on notice as to 
the existence of the investigation and would therefore be able to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it would compromise the existence of a confidential 
investigation or reveal the identity of witnesses or confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because this system of 
records is exempt from the access provisions of subsection (d) pursuant 
to subsections (j) and (k).
    (8) From subsection (e)(8) because the individual notice requirement 
of this subsection could present a serious impediment to law enforcement 
in that this could interfere with the U.S. Attorney's ability to issue 
subpoenas.
    (9) From subsections (f) and (g) because this system has been 
exempted from the access provisions of subsection (d).

[Order No. 1-87, 52 FR 3631, Feb. 5, 1987]



Sec. 16.78  Exemption of the Special Counsel for Immigration-Related, Unfair Employment Practices Systems.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (d).

    (1) Central Index File and Associated Records, JUSTICE/OSC-001.

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting would permit the subject of an investigation to obtain 
valuable information concerning the nature of that investigation. This 
would permit record subjects to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid 
inquiries.
    (2) From subsection (d) because access to the records might 
compromise ongoing investigations, reveal confidential informants, or 
constitute unwarranted invasions of the personal privacy of third 
parties who are involved in a certain investigation.

[Order No. 10-88, 53 FR 7735, Mar. 10, 1988]



Sec. 16.79  Exemption of Pardon Attorney Systems.

    (a) The following systems of records are exempt from 5 U.S.C. 
552a(d):

    (1) Executive Clemency Files (JUSTICE /OPA-001).
    (2) Freedom of Information/Privacy Acts (FOI/PA) Request File 
(JUSTICE/OPA-003).

These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (b) Exemption from subsection (d) is justified for the following 
reasons:
    (1) Executive Clemency Files contain investigatory and evaluative 
reports relating to applicants for Executive clemency. The FOI/PA 
Request File contains copies of documents from the Executive Clemency 
Files which have not been released either in whole or in part pursuant 
to certain provisions of the FOI/PA. Release of such information to the 
subject would jeopardize the integrity of the investigative process, 
invade the right of candid and confidential communciations among 
officials concerned with recommending clemency decisions to the 
President, and disclose the identity of persons who furnished 
information to the Government under an express or implied promise that 
their identities would be held in confidence.
    (2) The purpose of the creation and maintenance of the Executive 
Clemency Files is to enable the Pardon Attorney to prepare for the 
President's ultimate decisions on matters which are within the 
President's exclusive jurisdiction by reason of Article II, Section 2, 
Clause 1 of the Constitution, which commits pardons to the exclusive 
discretion of the President.


[Order No. 26-88, 53 FR 51542, Dec. 22, 1988]

[[Page 253]]



Sec. 16.80  Exemption of Office of Professional Responsibility System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5) 
and (8), (f) and (g):

    (1) Office of Professional Responsibility Record Index (JUSTICE/OPR-
001).

These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), 
and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of the disclosure 
accounting would enable the subject of an investigation to gain 
information concerning the existence, nature and scope of the 
investigation and seriously hamper law enforcement efforts.
    (2) From subsections (c)(4), (d), (e)(4)(G) and (H), (f) and (g) 
because these provisions concern individual access to records and such 
access might compromise ongoing investigations, reveal confidential 
informants and constitute unwarranted invasions of the personal privacy 
of third persons who provide information in connection with a particular 
investigation.
    (3) From subsections (e)(1) and (5) because the collection of 
information during an investigation necessarily involves material 
pertaining to other persons or events which is appropriate in a thorough 
investigation, even though portions thereof are not ultimately connected 
to the person or event subject to the final action or recommendation of 
the Office of Professional Responsibility.
    (4) From subsection (e)(2) because collecting the information from 
the subject would thwart the investigation by placing the subject on 
notice of the investigation.
    (5) From subsections (e)(3) and (e)(8) because disclosure and notice 
would provide the subject with substantial information which could 
impede or compromise the investigation. For example, an investigatory 
subject occupying a supervisory position could, once made aware that a 
misconduct investigation was ongoing, put undue pressure on subordinates 
so as to preclude their cooperation with investigators.

[Order No. 58-81, 46 FR 3509, Jan. 15, 1981]



Sec. 16.81   Exemption of United States Attorneys Systems--limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 
552a(c) (3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) 
(5) and (8), (f), and (g):

    (1) Citizen Complaint Files (JUSTICE/USA-003).
    (2) Civil Case Files (JUSTICE/USA-005).
    (3) Consumer Complaints (JUSTICE/USA-006).
    (4) Criminal Case Files (JUSTICE/USA-007).
    (5) Kline-District of Columbia and Maryland-Stock and Land Fraud 
Interrelationship Filing System (JUSTICE/USA-009).
    (6) Major Crimes Division Investigative Files (JUSTICE/USA-010).
    (7) Prosecutor's Management Information System (PROMIS) (JUSTICE/
USA-011).
    (8) United States Attorney, District of Columbia Superior Court 
Division, Criminal Files (JUSTICE/USA-013).
    (9) Pre-trial Diversion Program Files (JUSTICE/USA-014).

These exemptions apply to the extent that information in these systems 
is subject to exemption pursuant to U.S.C. 552a(j)(2), (k)(1) and 
(k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting, for disclosures pursuant to the routine uses published for 
these systems, would permit the subject of a criminal investigation and/
or civil case or matter under investigation, litigation, regulatory or 
administrative review or action, to obtain valuable information 
concerning the nature of that investigation, case or matter and present 
a serious impediment to law enforcement or civil legal activities.
    (2) From subsection (c)(4) since an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (3) From subsection (d) because access to the records contained in 
these systems would inform the subject of criminal investigation and/or 
civil investigation, matter or case of the existence of that 
investigation, provide

[[Page 254]]

the subject of the investigation with information that might enable him 
to avoid detection, apprehension or legal obligations, and present a 
serious impediment to law enforcement and other civil remedies.
    (4) From subsection (e)(1) because in the course of criminal 
investigations and/or civil investigations, cases or matters, the U.S. 
Attorneys often obtain information concerning the violation of laws or 
civil obligations other than those relating to an active case or matter. 
In the interests of effective law enforcement and civil litigation, it 
is necessary that the U.S. Attorneys retain this information since it 
can aid in establishing patterns of activity and provide valuable leads 
for other agencies and future cases that may be brought within the U.S. 
Attorneys' offices.
    (5) From subsection (e)(2) because in a criminal investigation the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection, apprehension or legal obligations 
and duties.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because these systems of 
records are exempt from individual access pursuant to subsections (j) 
and (k) of the Privacy Act of 1974.
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the United States 
Attorneys' ability to issue subpoenas and could reveal investigative 
techniques and procedures.
    (10) From subsection (f) because these systems of records have been 
exempted from the access provisions of subsection (d).
    (11) From subsection (g) because these systems of records are 
compiled for law enforcement purposes and have been exempted from the 
access provisions of subsections (d) and (f).
    (c) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), and (g):

    (1) Freedom of Information Act/Privacy Act Files (JUSTICE/USA-008)

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2).

    (d) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting would permit the subject of a criminal investigation and/or 
civil case or matter under investigation, in litigation, or under 
regulatory or administrative review or action to obtain valuable 
information concerning the nature of that investigation, case or matter, 
and present a serious impediment to law enforcement or civil legal 
activities.
    (2) From subsection (c)(4) because an exemption is being claimed for 
subsection (d) of the Act (Access to

[[Page 255]]

Records), rendering this subsection inapplicable to the extent that this 
system of records is exempted from subsection (d).
    (3) From subsection (d) because access to the records contained in 
these systems would inform the subject of a criminal or civil 
investigation, matter or case of the existence of such, and provide the 
subject with information that might enable him to avoid detection, 
apprehension or legal obligations, and present a serious impediment to 
law enforcement and other civil remedies. Amendment of the records would 
interfere with ongoing criminal law enforcement proceedings and impose 
an impossible administrative burden by requiring criminal investigations 
to be continuously reinvestigated.
    (4) From subsection (e)(1) because in the course of criminal 
investigations and/or civil investigations, cases or matters, the U.S. 
Attorneys often obtain information concerning the violation of laws or 
civil obligations other than those relating to an active case or matter. 
In the interests of effective law enforcement and civil litigation, it 
is necessary that the U.S. Attorneys retain this information since it 
can aid in establishing patterns of activity and provide valuable leads 
for other agencies and future cases that may be brought within the U.S. 
Attorneys' offices.
    (5) From subsection (e)(2) because to collect information to the 
greatest extent possible from the subject individual of a criminal 
investigation or prosecution would present a serious impediment to law 
enforcement in that the subject of the investigation would be placed on 
notice of the existence of the investigation and would therefore be able 
to avoid detection, apprehension, or legal obligations and duties.
    (6) From subsection (e)(3) because to provide individuals supplying 
information with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential investigation, reveal 
the identity of confidential sources of information, and endanger the 
life and physical safety of confidential informants.
    (7) From subsections (e)(4) (G) and (H) because this system of 
records is exempt from the individual access provisions of subsection 
(d) and the rules provisions of subsection (f).
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would inhibit the 
ability of trained investigator and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the U.S. Attorneys' ability 
to issue subpoenas and could reveal investigative techniques and 
procedures.
    (10) From subsection (f) because this system has been exempted from 
the individual access provisions of subsection (d).
    (11) From subsection (g) because the records in this system are 
generally compiled for law enforcement purposes and are exempt from the 
access provisions of subsections (d) and (f), rendering subsection (g) 
inapplicable.
    (e) The following systems of records are exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):

    (1) Assistant U.S. Attorneys Applicant Records System (JUSTICE/USA-
016).
    (2) Appointed Assistant U.S. Attorneys Personnel System (JUSTICE/
USA-017).

These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).

    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse

[[Page 256]]

to provide information concerning a candidate for an Assistant U.S. 
Attorney position. Access could reveal the identity of the source of the 
information and constitute a breach of the promise of confidentiality on 
the part of the Department of Justice. Such breaches ultimately would 
restrict the free flow of information vital to a determination of a 
candidate's qualifications and suitability.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluative purposes, it is impossible to determine 
in advance what exact information may be of assistance in determining 
the qualifications and suitability of a candidate. Information which may 
appear irrelevant, when combined with other seemingly irrelevant 
information, can on occasion provide a composite picture of a candidate 
for a position which assists in determining whether that candidate 
should be nominated for appointment.
    (g) Consistent with the legislative purpose of the Privacy Act of 
1974, the Executive Office for United States Attorneys will grant access 
to nonexempt material in records which are maintained by the U.S. 
Attorneys. Disclosure will be governed by the Department's Privacy 
regulations, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal, civil or regulatory 
violation will not be alerted to the investigation; the physical safety 
of witnesses, informants and law enforcement personnel will not be 
endangered, the privacy of third parties will not be violated; and that 
the disclosure would not otherwise impede effective law enforcement. 
Whenever possible, information of the above nature will be deleted from 
the requested documents and the balance made available. The controlling 
principle behind this limited access is to allow disclosures except 
those indicated above. The decisions to release information from these 
systems will be made on a case-by-case basis.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
716-77, 42 FR 23506, May 9, 1977; Order No. 738-77, 42 FR 38177, July 
27, 1977; Order No. 6-86, 51 FR 15476, Apr. 24, 1986; Order No. 57-91, 
56 FR 58306, Nov. 19, 1991]



Sec. 16.82  Exemption of the National Drug Intelligence Center Data Base--limited access.

    (a) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4); (d); 
(e) (1), (2), and (3); (e)(4)(I); (e) (5) and (8); and (g) of 5 U.S.C. 
552a. In addition, the following system of records is exempted pursuant 
to the provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections 
(c)(3), (d), and (e)(1) and (e)(4)(I) of 5 U.S.C. 552a:
    (1) National Drug Intelligence Center Data Base (JUSTICE/NDIC-001).
    (2) [Reserved]
    (b) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), 
(k)(1), and (k)(2). Where compliance would not appear to interfere with 
or adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, e.g., public source materials, the applicable 
exemption may be waived, either partially or totally, by the National 
Drug Intelligence Center (NDIC). Exemptions from the particular 
subsections are justified for the following reasons:
    (1) From subsection (c)(3) for the same reasons that the system is 
exempted from the provisions of subsection (d).
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsection (j)(2) of the 
Privacy Act.
    (3) From subsection (d) because disclosure to the subject could 
alert the subject of an investigation pertaining

[[Page 257]]

to narcotic trafficking or related activity of the fact and nature of 
the investigation, and/or of the investigative interest of NDIC and 
other intelligence or law enforcement agencies (including those 
responsible for civil proceedings related to laws against drug 
trafficking); lead to the destruction of evidence, improper influencing 
of witnesses, fabrication of testimony, and/or flight of the subject; 
reveal the details of a sensitive investigative or intelligence 
technique, or the identity of a confidential source; or otherwise 
impede, compromise, or interfere with investigative efforts and other 
related law enforcement and/or intelligence activities. In addition, 
disclosure could invade the privacy of third parties and/or endanger the 
life and safety of law enforcement personnel, confidential informants, 
witnesses, and potential crime victims. Finally, access to records could 
result in the release of properly classified information that could 
compromise the national defense or foreign policy. Amendment of the 
records would interfere with ongoing investigations and law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations, analyses, and reports to be continuously reinvestigated 
and revised.
    (4) From subsection (e)(1) because, in the course of its 
acquisition, collation, and analysis of information, NDIC will need to 
retain information not immediately shown to be relevant to counterdrug 
law enforcement to establish patterns of activity and to assist other 
agencies charged with the enforcement of laws and regulations regarding 
drug trafficking and charged with the acquisition of intelligence 
related to international aspects of drug trafficking. This consideration 
applies equally to information acquired from, or collated or analyzed 
for, both law enforcement agencies and agencies of the U.S. foreign 
intelligence community.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to law enforcement in that it would 
put the subject of an investigation, study or analysis on notice of the 
fact of such investigation, study, or analysis, thereby permitting the 
subject to engage in conduct intended to frustrate the activity; 
because, in some circumstances, the subject of an investigation may not 
be required to provide to investigators certain information; and because 
thorough analysis and investigation may require seeking information from 
a number of different sources.
    (6) From subsection (e)(3) (to the extent applicable) because the 
requirement that individuals supplying information be provided a form 
stating the requirements of subsection (e)(3) would constitute a serious 
impediment to law enforcement in that it could compromise the existence 
of a confidential investigation and reveal the identity of confidential 
informants and endanger their lives and safety.
    (7) From subsection (e)(4)(I), to the extent that this subsection is 
interpreted to require more detail regarding the record sources in this 
system than have been published in the Federal Register. Should the 
subsection be so interpreted, exemption from this provision is necessary 
to protect the confidentiality of the sources of criminal and other law 
enforcement information and to protect the privacy and physical safety 
of witnesses and informants. Furthermore, greater specificity concerning 
the sources of properly classified records could compromise national 
defense or foreign policy.
    (8) From subsection (e)(5) because the acquisition, collation, and 
analysis of information for law enforcement purposes does not permit 
advance determination whether such information is accurate or relevant, 
nor can such information be limited to that which is complete or 
apparently timely. Information of this type often requires further 
analysis and investigation to develop into a comprehensive whole that 
which is otherwise incomplete or even fragmentary. Moreover, its 
accuracy is continually subject to analysis and review, and, upon 
careful examination, seemingly irrelevant or untimely information may 
acquire added significance as additional information brings new details 
to light. The restrictions imposed by subsection (e)(5) would restrict 
the ability of trained investigators and intelligence analysts to 
exercise their judgment in collating and

[[Page 258]]

analyzing information and would impede the development of criminal 
intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement by revealing investigative techniques, procedures, or 
evidence.
    (10) From subsection (g) to the extent that the system is exempt 
from subsection (d).

[Order No. 78-93, 58 FR 41038, Aug. 2, 1993]



Sec. 16.83  Exemption of the Executive Office for Immigration Review System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d):

    (1) The Executive Office for Immigration Review's Records and 
Management Information System (JUSTICE/EOIR-001).

This exemption applies only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(k) (1) and (2).
    (b) Exemption from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d) because access to information which has been 
properly classified pursuant to an Executive Order could have an adverse 
effect on the national security. In addition, from subsection (d) 
because unauthorized access to certain investigatory material could 
compromise ongoing or potential investigations; reveal the identity of 
confidential informants; or constitute unwarranted invasions of the 
personal privacy of third parties.
    (2) From subsection (d) (2), (3), and (4) because the record of 
proceeding constitutes an official record which includes transcripts of 
quasi-judicial administrative proceedings, investigatory materials, 
evidentiary materials such as exhibits, decisional memoranda, and other 
case-related papers. Administrative due process could not be achieved by 
the ex parte ``correction'' of such materials by the individual who is 
the subject thereof.

[Order No. 18-86, 51 FR 32305, Sept. 11, 1986]



Sec. 16.84   Exemption of Immigration Appeals System.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d) 
(2), (3) and (4):

    (1) Decisions of the Board of Immigration Appeals (JUSTICE/BIA-001).

This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsections (d) (2), (3) and (4) because the decisions 
reflected constitute official records of opinions rendered in quasi-
judicial proceedings. Administrative due process could not be achieved 
by the ex parte ``correction'' of such opinions by the subject of the 
opinion.



Sec. 16.85   Exemption of U.S. Parole Commission--limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 552a 
(c) (3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f) 
and (g):

    (1) Docket Scheduling and Control System (JUSTICE/PRC-001).
    (2) Inmate and Supervision Files System (JUSTICE/PRC-003).
    (3) Labor and Pension Case, Legal File, and General Correspondence 
System (JUSTICE/PRC-004).
    (4) Statistical, Educational and Developmental System (JUSTICE/PRC-
006).
    (5) Workload Record, Decision Result, and Annual Report System 
(JUSTICE/PRC-007).

These exemptions apply only to the extent that information in these 
systems is subject to exemptions pursuant to 5 U.S.C. 552a(j)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because revealing disclosure of 
accountings to inmates and persons on supervision could compromise 
legitimate law enforcement activities and U.S. Parole Commission 
responsibilities.
    (2) From subsection (c)(4) because the exemption from subsection (d) 
will make notification of disputes inapplicable.

[[Page 259]]

    (3) From subsection (d) because this is essential to protect 
internal processes by which Commission personnel are able to formulate 
decisions and policies with regard to federal prisoners and persons 
under supervision, to prevent disclosures of information to federal 
inmates or persons on supervision that would jeopardize legitimate 
correctional interests of security, custody, supervision, or 
rehabilitation, to permit receipt of relevant information from other 
federal agencies, state and local law enforcement agencies, and federal 
and state probation and judicial offices, to allow private citizens to 
express freely their opinions for or against parole, to allow relevant 
criminal history type information of co-defendants to be kept in files, 
to allow medical, psychiatric and sociological material to be available 
to professional staff, and to allow a candid process of fact selection, 
opinion formulation, evaluation and recommendation to be continued by 
professional staff. The legal files contain case development material 
and, in addition to other reasons, should be exempt under the attorney-
client privilege. Each labor or pension applicant has had served upon 
him the material in his file which he did not prepare and may see his 
own file at any time.
    (4) From subsection (e)(2) because primary collection of information 
directly from federal inmates or persons on supervision about criminal 
sentence, criminal records, institutional performance, readiness for 
release from custody, or need to be returned to custody is highly 
impractical and inappropriate.
    (5) From subsection (e)(3) because application of this provision to 
the operations and collection of information by the Commission which is 
primarily from sources other than the individual, is inappropriate.
    (6) From subsections (e)(4) (G) and (H) because exemption from the 
access provisions of (d) makes publication of agency procedures under 
(d) inapplicable.
    (7) From subsection (e)(8) because the nature of the Commission's 
activities renders notice of compliance with compulsory legal process 
impractical.
    (8) From subsection (f) because exemption from the provisions of 
subsection (d) will render compliance with provisions of this subsection 
inapplicable.
    (9) From subsection (g) because exemption from the provisions of 
subsection (d) will render the provisions on suits to enforce (d) 
inapplicable.
    (c) Consistent with the legislative purpose of the Privacy Act of 
1974 the U.S. Parole Commission will initiate a procedure whereby 
present and former prisoners and parolees may obtain copies of material 
in files relating to them that are maintained by the U.S. Parole 
Commission. Disclosure of the contents will be affected by providing 
copies of documents to requesters through the mails. Disclosure will be 
made to the same extent as would be made under the substantive 
exemptions of the Parole Commission and Reorganization Act of 1976 (18 
U.S.C. 4208) and Rule 32 of the Federal Rules of Criminal Procedure. The 
procedure relating to disclosure of documents may be changed generally 
in the interest of improving the Commission's system of disclosure or 
when required by pending or future decisions and directions of the 
Department of Justice.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
14-78, 43 FR 45993, Oct. 5, 1978; Order No. 899-80, 45 FR 43703, June 
30, 1980; Order No. 6-86, 51 FR 15477, Apr. 24, 1986]



Sec. 16.88  Exemption of Antitrust Division Systems--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (d), (e)(4) (G) and (H), and (f):

    (1) Antitrust Caseload Evaluation System (ACES)--Monthly Report 
(JUSTICE/ATR-006).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (k)(2).
    (b) Exemption from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because information in this system is 
maintained in aid of ongoing antitrust enforcement investigations and 
proceedings. The release of the accounting of disclosures made under 
subsection (b) of the Act

[[Page 260]]

would permit the subject of an investigation of an actual or potential 
criminal or civil violation to determine whether he is the subject of an 
investigation. Disclosure of the accounting would therefore present a 
serious impediment to antitrust law enforcement efforts.
    (2) From subsection (d) because access to the information 
retrievable from this system and compiled for law enforcement purposes 
could result in the premature disclosure of the identity of the subject 
of an investigation of an actual or potential criminal or civil 
violation and information concerning the nature of that investigation. 
This information could enable the subject to avoid detection or 
apprehension. This would present a serious impediment to effective law 
enforcement since the subject could hinder or prevent the successful 
completion of the investigation. Further, confidential business and 
financial information, the identities of confidential sources of 
information, third party privacy information, and statutorily 
confidential information such as grand jury information must be 
protected from disclosure.
    (3) From subsections (e)(4)(G) and (H), and (f) because this system 
is exempt from the individual access provisions of subsection (d).
    (c) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (d), (e)(4)(G) and (H), and (f):

    (1) Freedom of Information/Privacy--Requester/Subject Index File 
(JUSTICE/ATR-008).

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a (k)(2).
    (d) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because the release of the accounting of 
disclosures made under subsection (b) of the Act would permit the 
subject of an investigation of an actual or potential criminal or civil 
violation to determine whether he is the subject of an investigation. 
Disclosure of accounting would therefore present a serious impediment to 
antitrust law enforcement efforts.
    (2) From subsection (d) because access to information in this system 
could result in the premature disclosure of the identity of the subject 
of an investigation of an actual or potential criminal or civil 
violation and information concerning the nature of the investigation. 
This information could enable the subject to avoid detection or 
apprehension. This would present a serious impendiment to effective law 
enforcement since the subject could hinder or prevent the successful 
completion of the investigation. Further, confidential business and 
financial information, the identities of confidential sources of 
information, third party privacy information, and statutorily 
confidential information such as grand jury information must be 
protected from disclosure.
    (3) From subsections (e)(4)(G) and (H), and (f) because this system 
is exempt from the individual access provisions of subsection (d).

[Order No. 2-86, 51 FR 884, Jan. 9, 1986]



Sec. 16.89  Exemption of Civil Division Systems--limited access.

    (a) The following systems of records are exempted pursuant to 5 
U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4) (G) and (H), (e)(5), (e)(8), and (g); in addition, the 
following systems of records are exempted pursuant to 5 U.S.C. 552a 
(k)(1) and (k)(2) from subsections (c)(3), (d), (e)(1), (e)(4) (G) and 
(H):

    (1) Civil Division Case File System, JUSTICE/CIV-001.
    (2) Freedom of Information/Privacy Acts File System, JUSTICE/CIV-
005.

These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) 
and (k)(2).
    (b) Only that information which relates to the investigation, 
prosecution, or defense of actual or potential criminal or civil 
litigation, or which has been properly classified in the interest of 
national defense and foreign policy is exempted for the reasons set 
forth from the following subsections:

[[Page 261]]

    (1) Subsection (c)(3). To provide the subject of a criminal or civil 
matter or case under investigation with an accounting of disclosures of 
records concerning him or her would inform that individual (and others 
to whom the subject might disclose the records) of the existence, 
nature, or scope of that investigation and thereby seriously impede law 
enforcement efforts by permitting the record subject and others to avoid 
criminal penalties and civil remedies.
    (2) Subsections (c)(4), (e)(4) (G) and (H), and (g). These 
provisions are inapplicable to the extent that these systems of records 
are exempted from subsection (d).
    (3) Subsection (d). To the extent that information contained in 
these systems has been properly classified, relates to the investigation 
and/or prosecution of grand jury, civil fraud, and other law enforcement 
matters, disclosure could compromise matters which should be kept secret 
in the interest of national security or foreign policy; compromise 
confidential investigations or proceedings; hamper sensitive civil or 
criminal investigations; impede affirmative enforcement actions based 
upon alleged violations of regulations or of civil or criminal laws; 
reveal the identity of confidential sources; and result in unwarranted 
invasions of the privacy of others. Amendment of the records would 
interfere with ongoing criminal law enforcement proceedings and impose 
an impossible administrative burden by requiring criminal investigations 
to be continuously reinvestigated.
    (4) Subsection (e)(1). In the course of criminal or civil 
investigations, cases, or matters, the Civil Division may obtain 
information concerning the actual or potential violation of laws which 
are not strictly within its statutory authority. In the interest of 
effective law enforcement, it is necessary to retain such information 
since it may establish patterns of criminal activity or avoidance of 
other civil obligations and provide leads for Federal and other law 
enforcement agencies.
    (5) Subsection (e)(2). To collect information from the subject of a 
criminal investigation or prosecution would present a serious impediment 
to law enforcement in that the subject (and others to whom the subject 
might be in contact) would be informed of the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony.
    (6) Subsection (e)(3). To comply with this requirement during the 
course of a criminal investigation or prosecution could jeopardize the 
investigation by disclosing the existence of a confidential 
investigation, revealing the identity of witnesses or confidential 
informants, or impeding the information gathering process.
    (7) Subsection (e)(5). In compiling information for criminal law 
enforcement purposes, the accuracy, completeness, timeliness and 
relevancy of the information obtained cannot always be immediately 
determined. As new details of an investigation come to light, seemingly 
irrelevant or untimely information may acquire new significance and the 
accuracy of such information can often only be determined in a court of 
law. Compliance with this requirement would therefore restrict the 
ability of government attorneys in exercising their judgment in 
developing information necessary for effective law enforcement.
    (8) Subsection (e)(8). To serve notice would give persons sufficient 
warning to evade law enforcement efforts.
    (c) The following system of records is exempted pursuant to 5 U.S.C. 
552a(j)(2) from subsections (c) (3) and (4), (d), (e)(1) and (e)(5); in 
addition, this system is also exempted pursuant to 5 U.S.C. 552a(k)(2) 
from subsections (c)(3), (d), and (e)(1).

    Consumer Inquiry/Investigatory System, JUSTICE/CIV-006.

These exemptions apply only to the extent that information in this 
system of records is subject to exemption pursuant to 5 U.S.C. 552a 
(j)(2) and (k)(2).
    (d) Only that information compiled for criminal or civil law 
enforcement purposes is exempted for the reasons set forth from the 
following subsections:
    (1) Subsections (c)(3). This system occasionally contains 
investigatory material based on complaints of actual or alleged criminal 
or civil violations. To

[[Page 262]]

provide the subject of a criminal or civil matter or case under 
investigation with an accounting of disclosures of records concerning 
him/her would inform that individual of the existence, nature, or scope 
of that investigation, and thereby seriously impede law enforcement 
efforts by permitting the record subject and other persons to whom he 
might disclose the records to avoid criminal penalties and civil 
remedies.
    (2) Subsections (c)(4). This subsection is inapplicable to the 
extent that an exemption is being claimed for subsection (d).
    (3) Subsection (d). Disclosure of information relating to the 
investigation of complaints of alleged violation of criminal or civil 
law could interfere with the investigation, reveal the identity of 
confidential sources, and result in an unwarranted invasion of the 
privacy of others. Amendment of the records would interfere with ongoing 
criminal law enforcement proceedings and impose an impossible 
administrative burden by requiring criminal investigations to be 
continuously reinvestigated.
    (4) Subsection (e)(1). In the course of criminal or civil 
investigations, cases, or matters, the Civil Division may obtain 
information concerning the actual or potential violation of laws which 
are not strictly within its statutory authority. In the interest of 
effective law enforcement, it is necessary to retain such information 
since it may establish patterns of criminal activity or avoidance of 
other civil obligations and provide leads for Federal and other law 
enforcement agencies.
    (5) Subsection (e)(5). In compiling information for criminal law 
enforcement purposes, the accuracy, completeness, timeliness and 
relevancy of the information obtained cannot always be immediately 
determined. As new details of an investigation come to light, seemingly 
irrelevant or untimely information may acquire new significance and the 
accuracy of such information can often only be determined in a court of 
law. Compliance with this requirement would therefore restrict the 
ability of government attorneys in exercising their judgment in 
developing information necessary for effective law enforcement.
    (e) The following system of records is exempt pursuant to 5 U.S.C. 
552a (j)(2) and (k)(2) from subsection (d):

    Congressional and Citizen Correspondence File, JUSTICE/CIV-007.

This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C 552a (j)(2) and 
(k)(2).
    (f) Only that portion of the Congressional and Citizen 
Correspondence File maintained by the Communications Office which 
consists of criminal or civil investigatory information is exempted for 
the reasons set forth from the following subsection:
    (1) Subsection (d). Disclosure of investigatory information would 
jeopardize the integrity of the investigative process, disclose the 
identity of individuals who furnished information to the government 
under an express or implied promise that their identities would be held 
in confidence, and result in an unwarranted invasion of the privacy of 
others. Amendment of the records would interfere with ongoing criminal 
law enforcement proceedings and impose an impossible administrative 
burden by requiring criminal investigations to be continuously 
reinvestigated.

[Order No. 27-88, 54 FR 113, Jan. 4, 1989]



Sec. 16.90  Exemption of Civil Rights Division Systems.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d):

    (1) Files on Employment Civil Rights Matters Referred by the Equal 
Employment Opportunity Commission (JUSTICE/CRT-007).

This exemption applies to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d) because this system contains investigatory 
material compiled by the Equal Opportunity Commission pursuant to its 
authority under 42 U.S.C. 2000e-8. 42 U.S.C. 2000e-5(b), 42 U.S.C. 
2000e-8(e), and 44 U.S.C. 3508 make it unlawful to make public

[[Page 263]]

in any manner whatsoever any information obtained by the Commission 
pursuant to the authority.
    (c) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d) and (g):

    (1) Central Civil Rights Division Index File and Associated Records 
(JUSTICE/CRT-001).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and 
(k)(2).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure pursuant to the routine uses published for 
this system may enable the subject of an investigation to gain valuable 
information concerning the nature and scope of the investigation and 
seriously hamper law enforcement efforts.
    (2) From subsection (d) because freely permitting access to records 
in this system would compromise ongoing investigations and reveal 
investigatory techniques. In addition, these records may be subject to 
protective orders entered by federal courts to protect their 
confidentiality. Many of the records contained in this system are copies 
of documents which are the property of state agencies and were obtained 
under express or implied promises to strictly protect their 
confidentiality.
    (3) From subsection (g) because exemption from the provision of 
subsection (d) will render the provisions on suits to enforce (d) 
inapplicable.
    (e) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (d), and (g):

    (1) Freedom of Information/Privacy Act Records (JUSTICE/CRT-010).

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and (k)(2).
    (f) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting may enable the subject of an investigation to gain valuable 
information concerning the nature and scope of the investigation and 
seriously hamper law enforcement efforts.
    (2) From subsection (d) because access to records in this system 
would compromise ongoing investigations and reveal investigative 
techniques. In addition, certain of these records may be subject to 
protective orders entered by Federal courts to protect their 
confidentiality, and many are copies of documents which are the property 
of State agencies and were obtained under express or implied promises to 
strictly protect their confidentiality. This system also contains 
investigatory material compiled by the Equal Opportunity Commission 
pursuant to its authority under 42 U.S.C. 2000e-8. Provisions of 42 
U.S.C. 2000e-5(b), 42 U.S.C. 2000e-8(e), and 44 U.S.C. 3508 make it 
unlawful to make public in any manner whatsoever any information 
obtained by the Commission pursuant to the authority. Amendment of the 
records would interfere with ongoing criminal law enforcement 
proceedings and impose an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (3) From subsection (g) because exemption from subsection (d) will 
render the provisions on suits to enforce subsection (d) inapplicable.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
688-77, 42 FR 10000, Feb. 18, 1977; Order No. 8-82, 47 FR 44256, Oct. 7, 
1982; Order No. 6-86, 51 FR 15477, Apr. 24, 1986]



Sec. 16.91   Exemption of Criminal Division Systems--limited access, as indicated.

    (a) The following systems of records are exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8), (f) and 
(g) of 5 U.S.C. 552a; in addition, the following systems of records are 
exempted pursuant to the provisions of 5 U.S.C. 552a (k)(1) and (k)(2) 
from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) 
of 5 U.S.C. 552a:

    (1) Central Criminal Division, Index File and Associated Records 
System of Records (JUSTICE/CRM-001)--Limited Access.

[[Page 264]]

    (2) General Crimes Section, Criminal Division, Central Index File 
and Associated Records System of Rec-ords (JUSTICE/CRM-004)--Limited 
Access.

These exemptions apply to the extent that information in those systems 
are subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) and 
(k)(2).
    (b) The systems of records listed under paragraphs (b)(1) and (b)(2) 
of this section are exempted, for the reasons set forth, from the 
following provisions of 5 U.S.C. 552a:

    (1). (c)(3). The release of the disclosure accounting for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for these systems of records, 
would permit the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to determine whether he is the 
subject of investigation, or to obtain valuable information concerning 
the nature of that investigation, and the information obtained, or the 
identity of witnesses and informants and would therefore present a 
serious impediment to law enforcement. In addition, disclosure of the 
accounting would amount to notice to the individual of the existence of 
a record; such notice requirement under subsection (f)(1) is 
specifically exempted for these systems of records.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this subsection is inapplicable to the 
extent that these systems of records are exempted from subsection (d).
    (3). (d). Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation of the existence of that 
investigation, or the nature and scope of the information and evidence 
obtained as to his activities, of the identity of witnesses and 
informants, or would provide information that could enable the subject 
to avoid detection or apprehension. These factors would present a 
serious impediment to effective law enforcement because they could 
prevent the successful completion of the investigation, endanger the 
physical safety of witnesses or informants, and lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (4). (e)(1). The notices of these systems of records published in 
the Federal Register set forth the basic statutory or related authority 
for maintenance of this system. However, in the course of criminal or 
other law enforcement investigations, cases, and matters, the Criminal 
Division or its components will occasionally obtain information 
concerning actual or potential violations of law that are not strictly 
within its statutory or other authority or may compile information in 
the course of an investigation which may not be relevant to a specific 
prosecution. In the interests of effective law enforcement, it is 
necessary to retain such information in these systems of records since 
it can aid in establishing patterns of criminal activity and can provide 
valuable leads for federal and other law enforcement agencies.
    (5). (e)(2). In a criminal investigation or prosecution, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony.
    (6). (e)(3). The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (7). (e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that these systems of 
records are exempted from subsections (f) and (d).
    (8). (e)(4)(I). The categories of sources of the records in these 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in these systems, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal and 
other law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (9). (e)(5). In the collection of information for criminal law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can often only be determined 
in a court of law. The restrictions of subsection (e)(5) would restrict 
the ability of trained investigators, intelligence analysts, and 
government attorneys in exercising their judgment in reporting on 
information and investigations and impede

[[Page 265]]

the development of criminal or other intelligence necessary for 
effective law enforcement.
    (10). (e)(8). The individual notice requirements of subsection 
(e)(8) could present a serious impediment to law enforcement as this 
could interfere with the ability to issue warrants or subpoenas and 
could reveal investigative techniques, procedures, or evidence.
    (11). (f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an actual or potential criminal, civil, or regulatory 
investigation or prosecution must be exempted because such notice to an 
individual would be detrimental to the successful conduct and/or 
completion of an investigation or prosecution pending or future. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.
    Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules require pursuant to subsection (f) (2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (12). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (13). In addition, exemption is claimed for these systems of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
Subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the 
extent that the records contained in these systems are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.

    (c) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j) (2) from subsection (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e) (4) (G), (H) and (I), (e) (5) and (8), (f) and 
(g) of 5 U.S.C. 552a:

    Criminal Division Witness Security File System of Records (JUSTICE/
CRM-002).

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (d) The system of records listed under paragraph (c) of this section 
is exempted, for the reasons set forth, from the following provisions of 
5 U.S.C. 552a:

    (1). (c)(3) The release of the disclosure accounting for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for these systems of records, would 
permit the subject of an investigation of an actual or potential 
criminal violation, which may include those protected under the Witness 
Security Program, to determine whether he is the subject of a criminal 
investigation, to obtain valuable information concerning the nature of 
that investigation and the information obtained, or the identity of 
witnesses and informants and the nature of their reports, and would 
therefore present a serious impediment to law enforcement. In addition, 
disclosure of the accounting would amount to notice to the individual of 
the existence of a record; such notice requirement under subsection 
(f)(1) is specifically exempted for these systems of records. Moreover, 
disclosure of the disclosure accounting to an individual protected under 
the Witness Security Program could jeopardize the effectiveness and 
security of the Program by revealing the methods and techniques utilized 
in relocating witnesses and could therefore jeopardize the ability to 
obtain, and to protect the confidentiality of, information compiled for 
purposes of a criminal investigation.
    (2). (c)(4) Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable.
    (3). (d) Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal violation, which may include those protected under the Witness 
Security Program, of the existence of that investigation, of the nature 
and scope of the information and evidence obtained as to his activities, 
of the identity of witnesses and informants, or would provide 
information that could enable the subject to avoid detection or 
apprehension. These factors would present a serious impediment to 
effective law enforcement because they could prevent the successful 
completion of the investigation, endanger the physical safety of 
witnesses or informants, and lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, access to the records in these systems to an individual 
protected under the Witness Security Program could jeopardize the 
effectiveness and security of the Program by revealing the methods and 
techniques utilized in relocating witnesses and could therefore 
jeopardize the ability to obtain, and to protect the confidentiality of, 
information compiled for purposes of a criminal investigation.
    (4). Exemption is claimed from subsection (e)(1) for the reasons 
stated in subsection (b)(4) of this section.

[[Page 266]]

    (5). (e)(2) In the course of preparing a Witness Security Program 
for an individual, much of the information is collected from the 
subject. However, the requirement that the information be collected to 
the greatest extent practicable from the subject individual would 
present a serious impediment to criminal law enforcement because the 
individual himself may be the subject of a criminal investigation or 
have been a participant in, or observer of, criminal activity. As a 
result, it is necessary to seek information from other sources. In 
addition, the failure to verify the information provided from the 
individual when necessary and to seek other information could jeopardize 
the confidentiality of the Witness Security Program and lead to the 
obtaining and maintenance of incorrect and uninvestigated information on 
criminal matters.
    (6). (e)(3) The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise or reveal the identity of witnesses and informants 
protected under the Witness Security Program.
    (7). (e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable.
    (8). (e)(4)(I). The categories of sources of the records in these 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in the system, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal law, 
enforcement information and of witnesses and informants protected under 
the Witness Security Program.
    (9). Exemption is claimed from subsections (e)(5) and (e)(8) for the 
reasons stated in subsection (b)(9) and (b)(10) of this section.
    (10). Procedures for notice to an individual pursuant to subsection 
(f)(1) as to the existence of records contained in these systems 
pertaining to him would inform the subject of an investigation of an 
actual or potential criminal violation, which may include those 
protected under the Witness Security Program, of the existence of that 
investigation, of the nature and scope of the information and evidence 
obtained as to his activities, of the identity of witnesses and 
informants, or would provide information that could enable the subject 
to avoid detection or apprehension. These factors would present a 
serious impediment to effective law enforcement because they could 
prevent the successful conduct and/or completion of an investigation 
pending or future, endanger the physical safety of witnesses or 
informants, and lead to the improper influencing of witnesses, the 
destruction of evidence, or the fabrication of testimony. In addition, 
notices as to the existence of records contained in these systems to an 
individual protected under the Witness Security Program could jeopardize 
the effectiveness and security of the Program by revealing the methods 
and techniques utilized in relocating witnesses and could therefore 
jeopardize the ability to obtain, and to protect the confidentiality of, 
information compiled for purposes of a criminal investigation.

Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable.
    (11). (g) Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable 
and is exempted for the reasons set forth for those subsections.

    (e) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (4) (G), (H) and (I), (f), and (g) of 5 U.S.C. 552a:

    Organized Crime and Racketeering Section, Intelligence and Special 
Services Unit, Information Request System of Records (JUSTICE/CRM-014).

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (f) The system of records listed under paragraph (e) of this section 
is exempted for the reasons set forth, from the following provisions of 
5 U.S.C. 552a:

    (1). (c)(3). The release of the disclosure accounting for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for these systems of records, 
would permit the subject of an investigation of an actual or potential 
criminal violation to determine whether he is the subject of a criminal 
investigation and would therefore present a serious impediment to law 
enforcement. The records in these systems contain the names of the 
subjects of the files in question and the system is accessible by name 
of the person checking out the file and by name of the subject of the 
file. In addition, disclosure of the accounting would amount to notice 
to the individual of the existence of a record; such notice requirement 
under subsection (f)(1) is specifically exempted for these systems of 
records.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable.

[[Page 267]]

    (3). (d). Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal violation of the existence of that investigation. This would 
present a serious impediment to effective law enforcement because it 
could prevent the successful completion of the investigation, endanger 
the physical safety of witnesses or informants, and lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (4). Exemption is claimed from subsections (e)(4) (G), (H) and (I) 
for the reasons stated in subsections (b)(7) and (b)(8) of this section.
    (5). (f). These systems may be accessed by the name of the person 
who is the subject of the file and who may also be the subject of a 
criminal investigation. Procedures for notice to an individual pursuant 
to subsection (f)(1) as to the existence of records pertaining to him, 
which may deal with an actual or potential criminal investigation or 
prosecution, must be exempted because such notice to an individual would 
be detrimental to the successful conduct and/or completion of the 
investigation or prosecution pending or future. In addition mere notice 
of the fact of an investigation could inform the subject or others that 
their activities are under or may become the subject of an investigation 
and could enable the subjects to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony.

Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable.
    (6). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) of the Act this section is 
inapplicable and is exempted for the reasons set forth for those 
subsections.

    (g) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c)(4), (d), (e)(4) 
(G), (H) and (I), (f) and (g) of 5 U.S.C. 552a.

File of Names Checked to Determine If Those Individuals Have Been the 
Subject of an Electronic Surveillance System of Records (JUSTICE/CRM-
003).

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (h) The system of records listed under paragraph (g) of this section 
is exempted, for the reasons set forth, from the following provisions of 
5 U.S.C. 552a:

    (1). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable to the 
extent that this system of records is exempted from subsection (d).
    (2). (d). The records contained in this system of records generally 
consist of information filed with the court in response to the request 
and made available to the requestor. To the extent that these records 
have been so filed, no exemption is sought from the provisions of this 
subsection. Occasionally, the records contain pertinent logs of 
intercepted communications and other investigative reports not filed 
with the court. These records must be exempted because access to such 
records could inform the subject of an investigation of an actual or 
potential criminal violation of the existence of that investigation and 
of the nature of the information and evidence obtained by the 
government. This would present a serious impediment to effective law 
enforcement because it could prevent the successful completion of the 
investigation, endanger the physical safety of witnesses or informants, 
and lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony.
    (3). Exemption is claimed from subsections (e)(4) (G), (H) and (I) 
for the reasons stated in subsections (b)(7) and (b)(8) of this section.
    (4). (f). The records contained in this system of records generally 
consist of information filed with the court and made available to the 
requestor. To the extent that these records have been so filed, no 
exemption is sought from the provisions of this subsection. 
Occasionally, the records contain pertinent logs of intercepted 
communications and other investigative reports not filed with the court. 
These records must be exempted from a requirement of notification as to 
their existence because such notice to an individual would be 
detrimental to the successful conduct and/or completion of a criminal 
investigation or prosecution pending or future. In addition, mere notice 
of the existence of such logs or investigative reports could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.

Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable to the extent that this system of records 
is exempted for subsection (d).
    (6). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent

[[Page 268]]

that this system of records is exempted from subsections (d) and (f).

    (i) The following systems of records are exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2), and (3), (e)(4) (G), (H), and (I), (e) (5) and (8), (f) 
and (g) of 5 U.S.C. 552a:

    (1) Information File on Individuals and Commercial Entities Known or 
Suspected of Being Involved in Fraudulent Activities System of Records 
(JUSTICE/CRM-006).
    (2) The Stocks and Bonds Intelligence Control Card File System of 
Records (JUSTICE/CRM-021).
    (3) Tax Disclosure Index File and Associated Records (JUSTICE/CRM-
025).

These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (j) The systems of records listed in paragraphs (i)(1), (i)(2), and 
(i)(3) of this section are exempted, for the reasons set forth, from the 
following provisions of 5 U.S.C. 552a:

    (1)(c)(3) The release of the disclosure accounting for disclosures 
made pursuant to subsection (b) of the act, including those permitted 
under the routine uses published for these systems of records, would 
permit the subject of an investigation of an actual or potential 
criminal violation to determine whether he is the subject of a criminal 
investigation, to obtain valuable information concerning the nature of 
that investigation, and the information obtained, or the identity of 
witnesses and informants, and would therefore present a serious 
impediment to law enforcement. In addition, disclosure of the accounting 
would amount to notice to the individual of the existence of a record; 
such notice requirement under subsection (f)(1) is specifically exempted 
for this system of records.
    (2)(c)(4) Since an exemption is being claimed for subsection (d) of 
the act (access to records), this section is inapplicable to the extent 
that these systems of records are exempted from subsection (d).
    (3)(d) Access to the records contained in these systems would inform 
the subject of an investigation of an actual or potential criminal 
violation of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his activities, of 
the identity of witnesses and informants, or would provide information 
that could enable the subject to avoid detection or apprehension. These 
factors would present a serious impediment to effective law enforcement 
because they could prevent the successful completion of the 
investigation, endanger the physical safety of witnesses or informants, 
and lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony.
    (4) Exemption is claimed from subsections (e) (1), (2), and (3), 
(e)(4) (G), (H), and (I), (e)(5) and (e)(8) for the reasons stated in 
subsections (b)(4), (b)(5), (b)(6), (b)(7), (b)(8), (b)(9), and (b)(10) 
of this section.
    (5)(f) Procedures for notice to an individual pursuant to subsection 
(f)(1) as to the existence of records pertaining to him dealing with an 
actual or potential criminal investigation or prosecution must be 
exempted because such notice to an individual would be detrimental to 
the successful conduct and/or completion of an investigation or 
prosecution pending or future. In addition, mere notice of the fact of 
an investigation could inform the subject or others that their 
activities are under or may become the subject of an investigation and 
could enable the subjects to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony. Since an exemption is being claimed for subsection (d) of the 
act (access to records), the rules required pursuant to subsection (f) 
(2) through (5) are inapplicable to these systems of records.
    (6)(g) Since an exemption is being claimed for subsections (d) 
(access to records) and (f) (Agency rules), this section is inapplicable 
and is exempted for the reasons set forth for those subsections.

    (k) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8), (f) and 
(g) of 5 U.S.C. 552a; in addition, the following systems of records are 
exempted pursuant to the provisions of 5 U.S.C. 552a(k)(1) from 
subsections (c) (3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) of 5 
U.S.C. 552a:

    Organized Crime and Racketeering Section, Criminal Division, General 
Index File and Associated Records System of Records (JUSTICE/CRM-012).

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(1).
    (l) The system of records listed under paragraph (m)\1\ of this 
section is exempted, for the reasons set forth, from the following 
provisions of 5 U.S.C. 552a:
---------------------------------------------------------------------------

    \1\ Paragraph (m) was redesignated as paragraph (k) at 44 FR 54046, 
Sept. 18, 1979.


[[Page 269]]


---------------------------------------------------------------------------

    (1). Exemption is claimed from subsections (c) (3) and (4) and (d) 
for the reasons stated in subsections (j)(1), (j)(2) and (j)(3) of this 
section.
    (2). (e)(1). The notice for this system of records published in the 
Federal Register sets forth the basic statutory or related authority for 
maintenance of this system. However, in the course of criminal 
investigations, cases, and matters, the Organized Crime and Racketeering 
Section will occasionally obtain information concerning actual or 
potential violations of law that are not strictly within its statutory 
or other authority, or may compile information in the course of an 
investigation which may not be relevant to a specific prosecution. In 
the interests of effective law enforcement, it is necessary to retain 
such information in this system of records since it can aid in 
establishing patterns of criminal activity and can provide valuable 
leads for federal and other law enforcement agencies.
    (3). Exemption is claimed from subsections (e) (2) and (3), (e)(4) 
(G), (H) and (I), (e) (5) and (8), (f) and (g) for the reasons stated in 
subsections (b)(5), (b)(6), (b)(7), (b)(8), (b)(9), (b)(10), (b)(11) and 
(b)(12) of this section.
    (4). In addition, exemption is claimed for this system of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
Subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the 
extent that the records contained in this system are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.

    (m) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (2) and (3), (e) (4) (G), (H) and (I), (e) (8), (f) and (g) of 5 
U.S.C. 552a:

    Requests to the Attorney General For Approval of Applications to 
Federal Judges For Electronic Interceptions System of Records (JUSTICE/
CRM-019).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (n) The system of records listed in paragraph (m) of this section is 
exempted for the reasons set forth, from the following provisions of 5 
U.S.C. 552a:

    (1). (c)(3). The release of the disclosure accounting for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for these systems of records, 
would permit the subject of an electronic interception to obtain 
valuable information concerning the interception, including information 
as to whether he is the subject of a criminal investigation, by means 
other than those provided for by statute. Such information could 
interfere with the successful conduct and/or completion of a criminal 
investigation, and would therefore present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would amount to 
notice to the individual of the existence of a record; such notice 
requirement under subsection (f)(1) is specifically exempted for these 
systems of records.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable.
    (3). (d). Access to the records contained in these systems would 
inform the subject of an electronic interception of the existence of 
such surveillance including information as to whether he is the subject 
of a criminal investigation by means other than those provided for by 
statute. This could interfere with the successful conduct and/or 
completion of a criminal investigation and therefore present a serious 
impediment to law enforcement.
    (4). (e)(2). In the context of an electronic interception, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and this would therefore destroy the efficacy of the 
interception.
    (5). (e)(3). The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential electronic interception 
or reveal the identity of witnesses or confidential informants.
    (6). (e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable.
    (7). Exemption is claimed from subsections (e)(4)(I) and (e)(8) for 
the reasons stated in subsections (b)(8) and (b)(10) of this section.
    (8). (f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an electronic interception other than pursuant to statute 
must be exempted because such notice to an individual would be 
detrimental to the successful conduct and/or completion of an 
investigation pending or future. In addition, mere notice of the fact of 
an electronic interception could inform the subject or others that their 
activities are under or may become the subject of an investigation and 
could enable the subjects to avoid detection or apprehension, to 
influence

[[Page 270]]

witnesses improperly, to destroy evidence, or to fabricate testimony.

Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f)(2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (9). (g). Since an exemption is being claimed for subsection (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsection (d) 
and (f).

    (o) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (2) and (3), (e) (4) (G), (H), and (I), (e)(8), (f) and (g) of 5 
U.S.C. 552a; in addition the following system of records is exempted 
pursuant to the provisions of 5 U.S.C. 552a(k)(1) and (k)(2) from 
subsections (c)(3), (d), (e)(4) (G), (H) and (I), and (f) of 5 U.S.C. 
552a:

    Witness Immunity Records System of Records (JUSTICE/CRM-022).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and 
(k)(1) and (k)(2).
    (p) The system of records listed under paragraph (q)\2\ of this 
section is exempted, for the reasons set forth, from the following 
provisions of 5 U.S.C. 552a:
---------------------------------------------------------------------------

    \2\ Paragraph (q) was redesignated as paragraph (o) at 44 FR 54046, 
Sept. 18, 1979.

    (1). (c)(3). Release of the accounting of disclosures made pursuant 
to subsection (b) of the Act, including those permitted under the 
routine uses published for this system of records, (a) as to a witness 
for whom immunity has been proposed, would inform the individual of the 
existence of the proposed immunity prematurely, thus creating a serious 
impediment to effective law enforcement in that the witness could flee, 
destroy evidence, or fabricate testimony; and (b) as to a witness to 
whom immunity has been granted, or for whom it has been denied, would 
reveal the nature and scope of the activities, if any, of the witness 
known to the government, which would also create a serious impediment to 
effective law enforcement.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable to the 
extent that this system of records is exempted from subsection (d).
    (3). (d). Access to the records contained in this system (a) as to a 
witness for whom immunity has been proposed, would inform the individual 
of the existence of the proposed immunity prematurely, thus presenting a 
serious impediment to effective law enforcement in that the witness 
could flee, destroy evidence, or fabricate testimony; and (b) as to a 
witness to whom immunity has been granted, or for whom it has been 
denied, would reveal the nature and scope of the activities, if any, of 
the witness known to the government, which would also create a serious 
impediment to effective law enforcement.
    (4). (e)(2). In a witness immunity request matter, the requirement 
that information be collected to the greatest extent practicable from 
the subject individual would present a serious impediment to law 
enforcement because the subject of the immunity request and often the 
subject of the underlying investigation or prosecution would be placed 
on notice as to the existence of the investigation and would therefore 
be able to avoid detection or apprehension, to influence witnesses 
improperly, to destroy evidence, or to fabricate testimony.
    (5). Exemption is claimed from subsections (e)(3), (e)(4)(G), (H) 
and (I), and (e)(8) for the reasons stated in subsections (b)(6), 
(b)(7), (b)(8) and (b)(10) of this section.
    (6). (f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him (a) 
as to a witness for whom immunity has been proposed, would inform the 
individual of the existence of the proposed immunity prematurely, thus 
presenting a serious impediment to effective law enforcement in that the 
witness could flee, destroy evidence, or fabricate testimony; and (b) as 
to a witness to whom immunity has been granted, or for whom it has been 
denied, would reveal the nature and scope of the activity, if any, of 
the witness known to the government, which would also create a serious 
impediment to effective law enforcement.

Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f)(2) 
through (5) are inapplicable to this system of records to the extent 
that this system of records is exempted from subsection (d).
    (7). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that this system of records is exempted for subsections (d) and 
(f).
    (8). In addition, exemption is claimed for this system of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
subsections (c)(3),

[[Page 271]]

(d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the extent that the 
records contained in this system are specifically authorized to be kept 
secret in the interests of national defense and foreign policy.

    (q) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) 
and (8), (f), and (g):

    (1) Freedom of Information/Privacy Act Records (JUSTICE/CRM-024)

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2).
    (r) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, it is exempted for the 
reasons set forth from the following provisions of 5 U.S.C. 552a:

    (1)(c)(3). The release of the disclosure accounting would present a 
serious impediment to law enforcement by permitting the subject of an 
investigation of an actual or potential criminal, civil, or regulatory 
violation to determine whether he is the subject of investigation, or to 
obtain valuable information concerning the nature of that investigation 
and the information obtained, or to identify witnesses and informants.
    (2)(c)(4). Since an exemption is being claimed for subsection (d) of 
the Act (Access to Records), this subsection is inapplicable to the 
extent that this system of records is exempted from subsection (d).
    (3)(d). Access to records contained in this system would enable the 
subject of an investigation of an actual or potential criminal or civil 
case or regulatory violation to determine whether he or she is the 
subject of investigation, to obtain valuable information concerning the 
nature and scope of the investigation, and information or evidence 
obtained as to his/her activities, to identify witnesses and informants, 
or to avoid detection or apprehension. Such results could prevent the 
successful completion of the investigation, endanger the physical safety 
of witnesses or informants, lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony, 
and thereby present a serious impediment to effective law enforcement. 
Amendment of the records would interfere with ongoing criminal law 
enforcement proceedings and impose an impossible administrative burden 
by requiring criminal investigations to be continuously reinvestigated.
    (4)(e)(1). In the course of criminal or other law enforcement 
investigations, cases, and matters, the Criminal Division will 
occasionally obtain information concerning actual or potential 
violations of law that are not strictly within its statutory or other 
authority, or it may compile information in the course of an 
investigation which may not be relevant to a specific prosecution. In 
the interests of effective law enforcement, it is necessary to retain 
such information since it can aid in establishing patterns of criminal 
activity and can provide valuable leads for Federal and other law 
enforcement agencies.
    (5)(e)(2). To collect information to the greatest extent practicable 
from the subject individual of a criminal investigation or prosecution 
would present a serious impediment to law enforcement. The nature of 
criminal and other investigative activities is such that vital 
information about an individual can only be obtained from other persons 
who are familiar with such individual and his/her activities. In such 
investigations it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (6) (e)(3). To provide individuals supplying information with a form 
stating the requirements of subsection (e)(3) would constitute a serious 
impediment to law enforcement in that it could compromise the existence 
of a confidential investigation or reveal the identity of witnesses or 
confidential informants.
    (7)(e)(4) (G) and (H). These subsections are inapplicable to the 
extent that this system is exempt from the access provisions of 
subsection (d) and the rules provisions of subsection (f).
    (8)(e)(4)(I). The categories of sources of the records in this 
system have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in this system, exemption from this provision is necessary to 
protect the confidentiality of the sources of criminal and other law 
enforcement information. Such exemption is further necessary to protect 
the privacy and physical safety of witnesses and informants.
    (9) (e)(5). In the collection of information for criminal law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can often only be determined 
in a court of law. The restrictions of subsection (e)(5) would inhibit 
the ability of trained investigators, intelligence analysts, and 
government attorneys in exercising their judgment in reporting on 
information and investigations and impede the development of criminal or 
other intelligence necessary for effective law enforcement.

[[Page 272]]

    (10)(e)(8). The individual notice requirements of subsection (e)(8) 
could present a serious impediment to law enforcement as this could 
interfere with the ability to issue warrants or subpoenas and could 
reveal investigative techniques, procedures, or evidence.
    (11)(f). This subsection is inapplicable to the extent that this 
system is exempt from the access provisions of subsection (d).
    (12)(g). Because some of the records in this system contain 
information which was compiled for law enforcement purposes and have 
been exempted from the access provisions of subsection (d), subsection 
(g) is inapplicable.
    (s) The following system of records is exempted from 5 U.S.C. 
552a(d).

    Office of Special Investigations Displaced Persons Listings 
(JUSTICE/CRM-027).

This exemption applies to the extent that the records in this system are 
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (t) Exemption from subsection (d) is justified for the following 
reasons:
    (1) Access to records contained in this system could inform the 
subject of the identity of witnesses or informants. The release of such 
information could present a serious impediment to effective law 
enforcement by endangering the physical safety of witnesses or 
informants; by leading to the improper influencing of witnesses, the 
destruction of evidence, or the fabrication of testimony; or by 
otherwise preventing the successful completion of an investigation.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
659-76, 41 FR 32423, Aug. 3, 1976; Order No. 11-78, 43 FR 38386, Aug. 
28, 1978; Order No. 30-79, 44 FR 54046, Sept. 18, 1979; Order Nos. 6-86, 
7-86, 51 FR 15475, 15477, Apr. 24, 1986]



Sec. 16.92   Exemption of Land and Natural Resources Division System--limited access, as indicated.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (d):

    (1) Docket Card System (JUSTICE/LDN-003).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because that portion of the Docket Card 
System relating to enforcement of criminal provisions of the Refuse Act 
of 1899 (33 U.S.C. 407), section 10 of the River and Harbor Act of 1899 
(33 U.S.C. 403), section 5 of the Outer Continental Shelf Act (43 U.S.C. 
1151 et seq.), the Clean Air Act (42 U.S.C. 1857 et seq.) and the Noise 
Control Act of 1972 (42 U.S.C. 4901), is being exempted from access and 
contest; the provisions for disclosure of accounting is not applicable.
    (2) From subsection (d) because of the need to safeguard the 
identity of confidential informants and to facilitate the enforcement of 
the criminal provisions of the above statutes.
    (c) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (d):

    (1) Freedom of Information/Privacy Act Records System. (Justice/LDN-
005).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c) (3) because that portion of the Freedom of 
Information/Privacy Act Records System that consists of investigatory 
materials compiled for law enforcement purposes is being exempted from 
access and contest; the provision for disclosure of accounting is not 
applicable.
    (2) From subsection (d) because of the need to safeguard the 
identity of confidential informants and avoid interference with ongoing 
investigations or law enforcement activities by preventing premature 
disclosure of information relating to those efforts.

[Order No. 688-77, 42 FR 10000, Feb. 18, 1977]



Sec. 16.93   Exemption of Tax Division Systems--limited access.

    (a) The following systems of records are exempted pursuant to the 
provisions of 5 U.S.C. 552a (j)(2) from subsections (c)(3), (c)(4), 
(d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f) and (g) of 5 U.S.C. 552a:

    (1) Tax Division Central Classification Cards, Index Docket Cards, 
and Associated Records--Criminal Tax Cases (JUSTICE/TAX-001)--Limited 
Access.

[[Page 273]]

    (2) Tax Division Special Projects Files (JUSTICE/TAX-005)--Limited 
Access.

These exemptions apply to the extent that information in these systems 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (b) The systems of records listed under paragraphs (a)(1) and (a)(2) 
of this section are exempted for the reasons set forth below, from the 
following provisions of 5 U.S.C. 552a:

    (1)(c)(3). The release of the disclosure accounting, for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for those systems of records, would 
enable the subject of an investigation of an actual or potential 
criminal tax case to determine whether he or she is the subject of 
investigation, to obtain valuable information concerning the nature of 
that investigation and the information obtained, and to determine the 
identity of witnesses or informants. Such access to investigative 
information would, accordingly, present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would constitute 
notice to the individual of the existence of a record even though such 
notice requirement under subsection (f)(1) is specifically exempted for 
these systems of records.
    (2)(c)(4). Since an exemption is being claimed for subsection (d) of 
the Act (Access to Records) this subsection is inapplicable to the 
extent that these systems of records are exempted from subsection (d).
    (3) (d)(1); (d)(2); (d)(3); (d)(4). Access to the records contained 
in these systems would inform the subject of an actual or potential 
criminal tax investigation of the existence of that investigation, of 
the nature and scope of the information and evidence obtained as to his 
or her activities, and of the identity of witnesses or informants. Such 
access would, accordingly, provide information that could enable the 
subject to avoid detection, apprehension and prosecution. This result, 
therefore, would constitute a serious impediment to effective law 
enforcement not only because it would prevent the successful completion 
of the investigation but also because it could endanger the physical 
safety of witnesses or informants, lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony.
    (4)(e)(1). The notices for these systems of records published in the 
Federal Register, set forth the basic statutory or related authority for 
maintenance of these systems. However, in the course of criminal tax and 
related law enforcement investigations, cases, and matters, the Tax 
Division will occasionally obtain information concerning actual or 
potential violations of law that may not be technically within its 
statutory or other authority or may compile information in the course of 
an investigation which may not be relevant to a specific prosecution. In 
the interests of effective law enforcement, it is necessary to retain 
some or all of such information in these systems of records since it can 
aid in establishing patterns of criminal activity and can provide 
valuable leads for Federal and other law enforcement agencies.
    (5)(e)(2). In a criminal tax investigation or prosecution, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, influence witnesses improperly, destroy evidence, or 
fabricate testimony.
    (6)(e)(3). The requirement that individuals supplying information be 
provided with a form stating the requirements of subsection (e)(3) would 
constitute a serious impediment to law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (7)(e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that these systems of 
records are exempted from subsection (f) and (d).
    (8)(e)(4)(I). The categories of sources of the records in the 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in these systems, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal tax and 
related law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (9)(e)(5). In the collection of information for criminal tax 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. Furthermore, the accuracy of such information can often only be 
determined in a court of law. The restrictions of subsection (e)(5) 
would restrict the ability of government attorneys in exercising their 
judgment in reporting on information and investigations and impede the 
development of criminal tax

[[Page 274]]

information and related data necessary for effective law enforcement.
    (10)(e)(8). The individual notice requirements of subsection (e)(8) 
could present a serious impediment to law enforcement as this could 
interfere with the ability to issue warrants or subpoenas and could 
reveal investigative techniques, procedures, or evidence.
    (11)(f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an actual or potential criminal tax, civil tax, or 
regulatory investigation or prosecution must be exempted because such 
notice to an individual would be detrimental to the successful conduct 
and/or completion or an investigation or prosecution pending or future. 
In addition, mere notice of the fact of an investigation could inform 
the subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.
    Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (12)(g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).

    (c) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d)(1), 
(d)(2), (d)(3), (d)(4), (e)(1), (e)(4)(G, (e)(4)(H, (e)(4)(I) and (f) of 
5 U.S.C. 552a:

    (1) Tax Division Central Classification Cards, Index Docket Cards, 
and Associated Records--Civil Tax Cases (JUSTICE/TAX-002)--Limited 
Access.

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (d) The system of records listed under paragraph (c)(1) is exempted 
for the reasons set forth below, from the following provisions of 5 
U.S.C. 552a:

    (1)(c)(3). The release of the disclosure accounting, for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for this system of records, would 
enable the subject of an investigation of an actual or potential civil 
tax case to determine whether he or she is the subject of investigation, 
to obtain valuable information concerning the nature of that 
investigation and the information obtained, and to determine the 
identity of witnesses or informants. Such access to investigative 
information would, accordingly, present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would constitute 
notice to the individual of the existence of a record even though such 
notice requirement under subsection (f)(1) is specifically exempted for 
this system of records.
    (2) (d)(1); (d)(2); (d)(3); (d)(4). Access to the records contained 
in this system would inform the subject of an actual or potential civil 
tax investigation of the existence of that investigation, of the nature 
and scope of the information and evidence obtained as to his or her 
activities and of the identity of witnesses or informants. Such access 
would, accordingly, provide information that could enable the subject to 
avoid detection. This result, therefore, would constitute a serious 
impediment to effective law enforcement not only because it would 
prevent the successful completion of the investigation but also because 
it could endanger the physical safety of witnesses or informants, lead 
to the improper influencing of witnesses, the destruction of evidence, 
or the fabrication of testimony.
    (3)(e)(1). The notices for this system of records published in the 
Federal Register set forth the basic statutory or related authority for 
maintenance of this system. However, in the course of civil tax and 
related law enforcement investigations, cases and matters, the Tax 
Division will occasionally obtain information concerning actual or 
potential violations of law that are not strictly or technically within 
its statutory or other authority or may compile information in the 
course of an investigation which may not be relevant to a specific case. 
In the interests of effective law enforcement, it is necessary to retain 
some or all of such information in this system of records since it can 
aid in establishing patterns of tax compliance and can provide valuable 
leads for Federal and other law enforcement agencies.
    (4)(e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that this system of 
records is exempted from subsection (f) and (d).
    (5)(e)(4)(I). The categories of sources of the records in this 
system have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in this system, exemption from this provision is

[[Page 275]]

necessary in order to protect the confidentiality of the sources of 
civil tax and related law enforcement information. Such exemption is 
further necessary to protect the privacy and physical safety of 
witnesses and informants.
    (6)(f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to existence of records pertaining to the 
individual dealing with an actual or potential criminal tax, civil tax, 
or regulatory investigation or prosecution must be exempted because such 
notice to an individual would be detrimental to the successful conduct 
and/or completion of an investigation or case, pending or future. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection, to influence witnesses improperly, to destroy evidence, or to 
fabricate testimony.

Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable to this system of records to the extent 
that this system of records is exempted from subsection (d).
    (e) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4), (G), (e)(4)(H), 
(e)(4)(I), (e) (5) and (8), (f), and (g).

    (1) Freedom of Information--Privacy Act Request Files (JUSTICE/TAX-
004)

These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
    (f) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, it is exempted for the 
reasons set forth from the following provisions of 5 U.S.C. 552a:

    (1)(c)(3). The release of the disclosure accounting would present a 
serious impediment to law enforcement by permitting the subject of a 
investigation of an actual or potential criminal, civil, or regulatory 
violation to determine whether he is the subject of investigation, or to 
obtain valuable information concerning the nature of that investigation 
and the information obtained, or to identify witnesses and informants.
    (2)(c)(4). Since an exemption is being claimed for subsection (d) of 
the Act (Access to Records), this subsection is inapplicable to the 
extent that this system of records is exempted from subsection (d).
    (3)(d). Access to records contained in this system would inform the 
subject of an actual or potential criminal tax investigation of the 
existence of that investigation, of the nature and scope of the 
investigation, of the information and evidence obtained as to his or her 
activities, and of the identity of witnesses or informants. Such access 
would, accordingly, provide information that could enable the subject to 
avoid detection, apprehension, and prosecution. This result, therefore, 
would constitute a serious impediment to effective law enforcement not 
only because it would prevent the successful completion of the 
investigation but also because it could endanger the physical safety of 
witnesses or informants, lead to the improper influencing of witnesses, 
the destruction of evidence, of the fabrication of testimony. Amendment 
of the records would interfere with ongoing criminal law enforcement 
proceedings and imposes an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (4)(e)(1). In the course of criminal tax and related law enforcement 
investigations, cases, and matters, the Tax Division will occasionally 
obtain information concerning actual or potential violations of law that 
may not be technically within its statutory or other authority, or it 
may compile information in the course of an investigation which may not 
be relevant to a specific prosecution. In the interests of effective law 
enforcement, it is necessary to retain some or all of such information 
since it can aid in establishing patterns of criminal activity and can 
provide valuable leads for Federal and other law enforcement agencies.
    (5)(e)(2). To collect information to the greatest extent practicable 
from the subject individual of a criminal investigation or prosecution 
would present a serious impediment to law enforcement because the 
subject of the investigation or prosecution would be placed on notice as 
to the existence of the investigation and would therefore be able to 
avoid detection or apprehension, improperly influence witnesses, destroy 
evidence, or fabricate testimony.
    (6)(e)(3). To provide individuals supplying information with a form 
which includes the information required by subsection (e)(3) would 
constitute a serious impediment to law enforcement, i.e., it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (7)(e)(4) (G) and (H). These subsections are inapplicable to the 
extent that this system is exempt from the access provisions of 
subsection (d) and the rules provisions of subsection (f).
    (8)(e)(4)(I). The categories of sources of the records in this 
system have been published in the Federal Register in broad generic

[[Page 276]]

terms in the belief that this is all that subsection (e) (4) (I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in this system, exemption from this provision is necessary to 
protect the confidentiality of the sources of criminal tax and related 
law enforcement information. Such exemption is further necessary to 
protect the privacy and physical safety of witnesses and informants.
    (9)(e)(5). In the collection of information for criminal tax 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. Furthermore, the accuracy of such information can often only be 
determined in a court of law. The restrictions of subsection (e)(5) 
would inhibit the ability of government attorneys in exercising their 
judgement in reporting on information and investigations and impede the 
development of criminal tax information and related data necessary for 
effective law enforcement.
    (10)(e)(8). The individual notice requirements of subsection (e)(8) 
could present a serious impediment to law enforcement as this could 
interfere with the ability to issue warrants or subpoenas and could 
reveal investigative techniques, procedures, or evidence.
    (11)(f). This subsection is inapplicable to the extent that this 
system is exempt from the access provisions of subsection (d).
    (12)(g). Because the records in this system are generally compiled 
for law enforcement purposes and are exempt from the access provisions 
of subsection (d), subsection (g) is inapplicable.

[Order No. 742-77, 42 FR 40906, Aug. 12, 1977, as amended by Order No. 
6-86, 51 FR 15478, Apr. 24, 1986]



Sec. 16.96  Exemption of Federal Bureau of Investigation Systems--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d), (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(8), (f) 
and (g).

    (1) Central Records System (CRS) (JUSTICE/FBI-002).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552(j) and (k). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, the applicable exemption may be 
waived by the FBI.
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only the FBI, but also by the 
recipient agency. This would permit the record subject to take 
appropriate measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses or flee the area to avoid the 
thrust of the investigation.
    (2)(i) From subsections (d), (e)(4) (G) and (H), (f) and (g) because 
these provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information classified 
in the interest of national security, interfere with the overall law 
enforcement process by revealing a pending sensitive investigation, 
possibly identify a confidential source or disclose information which 
would constitute an unwarranted invasion of another individual's 
personal privacy, reveal a sensitive investigative technique, or 
constitute a potential danger to the health or safety to law enforcement 
personnel.
    (ii) Also, individual access to non-criminal investigative records, 
e.g., civil investigations and administrative inquiries, as described in 
subsection (k) of the Privacy Act, could also compromise classified 
information related to national security, interfere with a pending 
investigation or internal inquiry, constitute an unwarranted invasion of 
privacy, reveal a confidential source or sensitive investigative 
technique, or pose a potential threat to law enforcement personnel. In 
addition, disclosure of information collected pursuant to an employment 
suitability or similar inquiry could reveal the identity of a source who 
provided information under an express promise of confidentiality, or 
could compromise the objectivity or fairness of a testing or examination 
process.
    (iii) In addition, from paragraph (d)(2) of this section, because to 
require the FBI to amend information thought to be incorrect, irrelevant 
or untimely, because of the nature of the information collected and the 
essential length

[[Page 277]]

of time it is maintained, would create an impossible administrative and 
investigative burden by forcing the agency to continuously retrograde 
its investigations attempting to resolve questions of accuracy, etc.
    (3) From subsection (e)(1) because:
    (i) It is not possible in all instances to determine relevancy or 
necessity of specific information in the early stages of a criminal or 
other investigation.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (iii) In any investigation the FBI might obtain information 
concerning violations of law not under its jurisdiction, but in the 
interest of effective law enforcement, dissemination will be made to the 
agency charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or to 
an investigative activity under the jurisdiction of another agency.
    (4) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can only be obtained from other persons who are familiar with 
such individual and his/her activities. In such investigations it is not 
feasible to rely upon information furnished by the individual concerning 
his own activities.
    (5) From subsection (e)(3) because disclosure would provide the 
subject with substantial information which could impede or compromise 
the investigation. The individual could seriously interfere with 
undercover investigative activities and could take appropriate steps to 
evade the investigation or flee a specific area.
    (6) From subsection (e)(8) because the notice requirements of this 
provision could seriously interfere with a law enforcement activity by 
alerting the subject of a criminal or other investigation of existing 
investigative interest.
    (c) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), (g) and (m):

    (1) Electronic Surveillance (Elsur) Indices (JUSTICE/FBI-006).

These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of accounting 
disclosures would place the subject of an investigation on notice that 
he is under investigation and provide him with significant information 
concerning the nature of the investigation, resulting in a serious 
impediment to law enforcement.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) 
because these provisions concern an individual's access to records which 
concern him and such access to records in this system would compromise 
ongoing investigations, reveal investigatory techniques and confidential 
informants, and invade the privacy of private citizens who provide 
information in connection with a particular investigation.
    (3) From subsection (e)(1) because these indices must be maintained 
in order to provide the information as described in the ``routine uses'' 
of this particular system.
    (4) From subsections (e) (2) and (3) because compliance is not 
feasible given the subject matter of the indices.
    (5) From subsection (e)(5) because this provision is not applicable 
to the indices in view of the ``routine uses'' of the indices. For 
example, it is impossible to predict when it will be necessary to 
utilize information in the system and, accordingly it is not possible to 
determine when the records are timely.
    (6) From subsection (e)(8) because the notice requirement could 
present a serious impediment to law enforcement by revealing 
investigative techniques, procedures and the existence of confidential 
investigations.

[[Page 278]]

    (7) From subsection (m) for the reasons stated in subsection (b)(7) 
of this section.
    (e) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), and (g):

    (1) Identification Division Records System (JUSTICE/FBI-009).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j).
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) for the reasons stated in subsection 
(d)(1) of this section.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), (f) and (g) 
because these provisions concern an individual's access to records which 
concern him. Such access is directed at allowing the subject of a record 
to correct inaccuracies in it. Although an alternate system of access 
has been provided in 28 CFR 16.30 to 34 and 28 CFR 20.34, the vast 
majority of records in this system concern local arrests which it would 
be inappropriate for the FBI to undertake to correct.
    (3) From subsection (e)(1) because it is impossible to state with 
any degree of certainty that all information on these records is 
relevant to accomplish a purpose of the FBI, even though acquisition of 
the records from state and local law enforcement agencies is based on a 
statutory requirement. In view of the number of records in the system it 
is impossible to review them for relevancy.
    (4) From subsection (e)(2) because the records in the system are 
necessarily furnished by criminal justice agencies due to their very 
nature.
    (5) From subsection (e)(3) because compliance is not feasible due to 
the nature of the records.
    (6) From subsection (e)(5) because the vast majority of these 
records come from local criminal justice agencies and it is 
administratively impossible to ensure that the records comply with this 
provision. Submitting agencies are, however, urged on a continuing basis 
to ensure that their records are accurate and include all dispositions.
    (7) From subsection (e)(8) because the FBI has no logical manner to 
ascertain whether process has been made public and compliance with this 
provision would in any case, provide an impediment to law enforcement by 
interfering with the ability to issue warrants or subpoenas and by 
revealing investigative techniques, procedures or evidence.
    (g) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G) and (H), (e)(8), (f), 
and (g):

This exemption applies only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(3).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) for the reasons stated in subsection 
(d)(1) of this section.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) for 
the reasons stated in subsection (d)(2) of this section. When records 
are properly subject to access by the individual, an alternate means of 
access is provided in subsection (i) of this section.
    (3) From subsection (e)(1) because information contained in this 
system is primarily from state and local records, and it is for the 
official use of agencies outside the Federal Government in accordance 
with 28 U.S.C. 534.
    (4) From subsections (e) (2) and (3) because it is not feasible to 
comply with these provisions given the nature of this system.
    (5) From subsection (e)(8) for the reasons stated in subsection 
(d)(6) of this section.
    (i) Access to computerized criminal history records in the National 
Crime Information Center is available to the individual who is the 
subject of the record pursuant to procedures and requirements specified 
in the Notice of Systems of Records compiled by the National Archives 
and Records Service and published under the designation:
    (j) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4) (G) and (H), (f) and (g):


[[Page 279]]


    (1) National Center for the Analysis of Violent Crime (NCAVC) 
(JUSTICE/FBI-015).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and 
(k)(2).
    (k) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because providing the accounting of 
disclosures to the subject could prematurely reveal investigative 
interest by the FBI and other law enforcement agencies, thereby 
providing the individual an opportunity to impede an active 
investigation, destroy or alter evidence, and possibly render harm to 
violent crime victims and/or witnesses.
    (2) From subsections (d), (e)(4) (G) and (H), and (f) because 
disclosure to the subject could interfere with enforcement proceedings 
of a criminal justice agency, reveal the identity of a confidential 
source, result in an unwarranted invasion of another's privacy, reveal 
the details of a sensitive investigative technique, or endanger the life 
and safety of law enforcement personnel, potential violent crime 
victims, and witnesses. Disclosure also could prevent the future 
apprehension of a violent or exceptionally dangerous criminal fugitive 
should he or she modify his or her method of operation in order to evade 
law enforcement. Also, specifically from subsection (d)(2), which 
permits an individual to request amendment of a record, because the 
nature of the information in the system is such that an individual 
criminal offender would frequently demand amendment of derogatory 
information, forcing the FBI to continuously retrograde its criminal 
investigations in an attempt to resolve questions of accuracy, etc.
    (3) From subsection (g) because the system is exempt from the access 
and amendment provisions of subsection (d).
    (4) From subsection (e)(1) because it is not always possible to 
establish relevance and necessity of the information at the time it is 
obtained or developed. Information, the relevance and necessity of which 
may not be readily apparent, frequently can prove to be of investigative 
value at a later date and time.

National Crime Information Center (NOIC) (JUSTICE/FBI-001).

    (l) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (c)(4), (d), (e) (1), (2), and (3), (e)(4) (G) and (H), (e)(5), 
(e)(8), (f) and (g).
    (1) FBI Counterdrug Information Indices System (CIIS) (JUSTICE/FBI--
016)
    (2) [Reserved]

    (m) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:

    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only the FBI, but also by the 
recipient agency. This would permit the record subject to take 
appropriate measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses or flee the area to avoid the 
thrust of the investigation.
    (2) From subsection (c)(4) to the extent it is not applicable 
because an exemption is being claimed from subsection (d).
    (3)(i) From subsections (d), (e)(4) (G) and (H) because these 
provisions concern individual access to records, compliance with which 
could compromise sensitive information, interfere with the overall law 
enforcement process by revealing a pending sensitive investigation, 
possibly identify a confidential source or disclose information which 
would constitute an unwarranted invasion of another individual's 
personal privacy, reveal a sensitive investigative technique, or 
constitute a potential danger to the health or safety of law enforcement 
personnel.
    (ii) In addition, from paragraph (d), because to require the FBI to 
amend information thought to be incorrect, irrelevant or untimely, 
because of the nature of the information collected and the essential 
length of time it is maintained, would create an impossible 
administrative and investigative burden by forcing the agency to 
continuously retrograde its investigations attempting to resolve 
questions of accuracy, etc.

[[Page 280]]

    (4)(i) From subsection (e)(1) because it is not possible in all 
instances to determine relevancy or necessity of specific information in 
the early stages of a criminal or other investigation.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed otherwise. It is only after the information is assessed that its 
relevancy and necessity in a specified investigative activity can be 
established.
    (iii) In any investigation the FBI might obtain information 
concerning violations of law not under its jurisdiction, but in the 
interest of effective law enforcement, dissemination will be made to the 
agency charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigations or to 
an investigative activity under the jurisdiction of another agency.
    (5) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual often can only be obtained from other persons who are 
familiar with such individual and his/her activities. In such 
investigations it is not feasible to principally rely upon information 
furnished by the individual concerning his own activities.
    (6) From subsection (e)(3) because disclosure would provide the 
subject with information which could impede or compromise the 
investigation. The individual could seriously interfere with undercover 
investigative activities and could take appropriate steps to evade the 
investigation or flee a specific area.
    (7) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (8) From subsection (e)(8) because the notice requirements of this 
provision could seriously interfere with a law enforcement activity by 
alerting the subject of a criminal or other investigation of existing 
investigative interest.
    (9) From subsection (f) to the extent that this system is exempt 
from the provisions of subsection (d).
    (10) From subsection (g) to the extent that this system of records 
is exempt from the provisions of subsection (d).
    (n) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4); (d); (e) (1), (2), and 3; (e)(4) (G) and (H); (e) (5) and 
(8); and (g):
    (1) National DNA Index System (NDIS) (JUSTICE/FBI-017).
    (2) [Reserved]
    (o) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available the accounting 
of disclosures of records to the subject of the record would prematurely 
place the subject on notice of the investigative interest of law 
enforcement agencies, provide the subject with significant information 
concerning the nature of the investigation, or permit the subject to 
take measures to impede the investigation (e.g., destroy or alter 
evidence, intimidate potential witnesses, or flee the area to avoid 
investigation and prosecution), and result in a serious impediment to 
law enforcement.
    (2)(i) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) 
because these provisions concern an individual's access to records which 
concern him/her and access to records in this system would compromise 
ongoing investigations. Such access is directed at allowing the subject 
of the record to correct inaccuracies in it. The vast majority of 
records in this system are from the DNA records of local and State NDIS 
agencies which would be inappropriate

[[Page 281]]

and not feasible for the FBI to undertake to correct. Nevertheless, an 
alternate method to access and/or amend records in this system is 
available to an individual who is the subject of a record pursuant to 
procedures and requirements specified in the Notice of Systems of 
Records compiled by the National Archives and Records Administration and 
published in the Federal Register under the designation: National DNA 
Index System (NDIS) (JUSTICE/FBI-017)
    (ii) In addition, from paragraph (d)(2) of this section, because to 
require the FBI to amend information thought to be incorrect, 
irrelevant, or untimely, because of the nature of the information 
collected and the essential length of time it is maintained, would 
create an impossible administrative and investigative burden by forcing 
the agency to continuously retrograde investigations attempting to 
resolve questions of accuracy, etc.
    (iii) In addition, from subsection (g) to the extent that the system 
is exempt from the access and amendment provisions of subsection (d).
    (3) From subsection (e)(1) because:
    (i) Information in this system is primarily from State and local 
records and it is for the official use of agencies outside the Federal 
Government.
    (ii) It is not possible in all instances to determine the relevancy 
or necessity of specific information in the early stages of the criminal 
investigative process.
    (iii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary, and vice versa. It is only after the information is 
assessed that its relevancy in a specific investigative activity can be 
established.
    (iv) Although the investigative process could leave in doubt the 
relevancy and necessity of evidence which had been properly obtained, 
the same information could be relevant to another investigation or 
investigative activity under the jurisdiction of the FBI or another law 
enforcement agency.
    (4) From subsections (e)(2) and (3) because it is not feasible to 
comply with these provisions given the nature of this system. Most of 
the records in this system are necessarily furnished by State and local 
criminal justice agencies and not by individuals due to the very nature 
of the records and the system.
    (5) From subsection (e)(5) because the vast majority of these 
records come from State and local criminal justice agencies and because 
it is administratively impossible for them and the FBI to insure that 
the records comply with this provision. Submitting agencies are urged 
and make every effort to insure records are accurate and complete; 
however, since it is not possible to predict when information in the 
indexes of the system (whether submitted by State and local criminal 
justice agencies or generated by the FBI) will be matched with other 
information, it is not possible to determine when most of them are 
relevant or timely.
    (6) From subsection (e)(8) because the FBI has no logical manner to 
determine whenever process has been made public and compliance with this 
provision would provide an impediment to law enforcement by interfering 
with ongoing investigations.

[Order No. 40-80, 45 FR 5301, Jan. 23, 1980, as amended by Order No. 64-
81, 46 FR 20540, Apr. 6, 1981; Order No. 63-81, 46 FR 22362, Apr. 17, 
1981; Order No. 67-81, 46 FR 30495, June 9, 1981; Order No. 15-85, 50 FR 
31361, Aug. 2, 1985; Order No. 6-86, 51 FR 15479, Apr. 24, 1986; Order 
No. 94-94, 59 FR 47081, Sept. 14, 1994; Order No. 124-96, 61 FR 65180, 
Dec. 11, 1996]



Sec. 16.97   Exemption of Bureau of Prisons Systems--limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 552a 
(c) (3) and (4), (d), (e) (2) and (3), (e)(4) (H), (e)(8), (f) and (g):

    (1) Custodial and Security Record System (JUSTICE/BOP-001).
    (2) Industrial Inmate Employment Record System (JUSTICE/BOP-003).
    (3) Inmate Administrative Remedy Record System (JUSTICE/BOP-004).
    (4) Inmate Central Record System (JUSTICE/BOP-005).
    (5) Inmate Commissary Accounts Record System (JUSTICE/BOP-006).
    (6) Inmate Physical and Mental Health Record System (JUSTICE/BOP-
007).
    (7) Inmate Safety and Accident Compensation Record System (JUSTICE/
BOP-008).
    (8) Federal Tort Claims Act Record System (JUSTICE/BOP-009).


[[Page 282]]


These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(j).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because inmates will not be permitted to 
gain access or to contest contents of these record systems under the 
provisions of subsection (d) of 5 U.S.C. 552a. Revealing disclosure 
accountings can compromise legitimate law enforcement activities and 
Bureau of Prisons responsibilities.
    (2) From subsection (c)(4) because exemption from provisions of 
subsection (d) will make notification of formal disputes inapplicable.
    (3) From subsection (d) because exemption from this subsection is 
essential to protect internal processes by which Bureau personnel are 
able to formulate decisions and policies with regard to federal 
prisoners, to prevent disclosure of information to federal inmates that 
would jeopardize legitimate correctional interests of security, custody, 
or rehabilitation, and to permit receipt of relevant information from 
other federal agencies, state and local law enforcement agencies, and 
federal and state probation and judicial offices.
    (4) From subsection (e)(2) because primary collection of information 
directly from federal inmates about criminal sentences or criminal 
records is highly impractical and inappropriate.
    (5) From subsection (e)(3) because in view of the Bureau of Prisons' 
responsibilities, application of this provision to its operations and 
collection of information is inappropriate.
    (6) From subsection (e)(4)(H) because exemption from provisions of 
subsection (d) will make publication of agency procedures under this 
subsection inapplicable.
    (7) From subsection (e)(8) because the nature of Bureau of Prisons 
law enforcement activities renders notice of compliance with compulsory 
legal process impractical.
    (8) From subsection (f) because exemption from provisions of 
subsection (d) will render compliance with provisions of this subsection 
inapplicable.
    (9) From subsection (g) because exemption from provisions of 
subsection (d) will render provisions of this subsection inapplicable.
    (c) The following system of records is exempted pursuant to 5 U.S.C. 
552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (2) and (3), 
(e)(5) and (e)(8), and (g). In addition, the following system of records 
is exempted pursuant to 5 U.S.C. 552a(k)(2) from subsections (c)(3), 
(d), and (e)(1):

Bureau of Prisons Access Control Entry/Exit, (JUSTICE/BOP-010).

    (d) These exemptions apply only to the extent that information in 
these systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) or 
(k)(2). Where compliance would not appear to interfere with or adversely 
affect the law enforcement process, and/or where it may be appropriate 
to permit individuals to contest the accuracy of the information 
collected, e.g. public source materials, or those supplied by third 
parties, the applicable exemption may be waived, either partially or 
totally, by the BOP. Exemptions from the particular subsections are 
justified for the following reasons:
    (1) From subsection (c)(3) for similar reasons as those enumerated 
in paragraph (3).
    (2) From subsection (c)(4) to the extent that exemption from 
subsection (d) will make notification of corrections or notations of 
disputes inapplicable.
    (3) From the access provisions of subsection (d) to the extent that 
exemption from this subsection may appear to be necessary to prevent 
access by record subjects to information that may jeopardize the 
legitimate correctional interests of safety, security, and good order of 
Bureau of Prisons facilities; to protect the privacy of third parties; 
and to protect access to relevant information received from third 
parties, such as other Federal State, local and foreign law enforcement 
agencies, Federal and State probation and judicial offices, the 
disclosure of which may permit a record subject to evade apprehension, 
prosecution, etc.;

[[Page 283]]

and/or to otherwise protect investigatory or law enforcement 
information, whether received from other third parties, or whether 
developed internally by the BOP.
    (4) From the amendment provisions of subsection (d) because 
amendment of the records would interfere with law enforcement operations 
and impose an impossible administrative burden. In addition to efforts 
to ensure accuracy so as to withstand possible judicial scrutiny, it 
would require that law enforcement and investigatory information be 
continuously reexamined, even where the information may have been 
collected from the record subject. Also, where records are provided by 
other Federal criminal justice agencies or other State, local and 
foreign jurisdictions, it may be administratively impossible to ensure 
compliance with this provision.
    (5) From subsection (e)(1) to the extent that the BOP may collect 
information that may be relevant to the law enforcement operations of 
other agencies. In the interests of overall, effective law enforcement, 
such information should be retained and made available to those agencies 
with relevant responsibilities.
    (6) From subsection (e)(2) because primary collection of information 
directly from the record subject is often highly impractical, 
inappropriate and could result in inaccurate information.
    (7) From subsection (e)(3) because compliance with this subsection 
may impede the collection of information that may be valuable to law 
enforcement interests.
    (8) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely and 
complete. Data which may seem unrelated, irrelevant or incomplete when 
collected may take on added meaning or significance as an investigation 
progresses or with the passage of time, and could be relevant to future 
law enforcement decisions.
    (9) From subsection (e)(8) because the nature of BOP law enforcement 
activities renders notice of compliance with compulsory legal process 
impractical and could seriously jeopardize institution security and 
personal safety and/or impede overall law enforcement efforts.
    (10) From subsection (g) to the extent that the system is exempted 
from subsection (d).
    (e) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4), (d), (e) (2) and (3), (e)(5) and (e)(8), (f) and (g):

Telephone Activity Record System (JUSTICE/BOP-011).

    (f) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) 
and/or (k)(2). Where compliance would not appear to interfere with or 
adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, the applicable exemption may be waived, either 
partially or totally, by the BOP. Exemptions from the particular 
subsections are justified for the following reasons:
    (1) From subsection (c)(3) to the extent that this system of records 
is exempt from subsection (d), and for such reasons as those cited for 
subsection (d) in paragraph (f)(3) below.
    (2) From subsection (c)(4) to the extent that exemption from 
subsection (d) makes this exemption inapplicable.
    (3) From the access provisions of subsection (d) because exemption 
from this subsection is essential to prevent access of information by 
record subjects that may invade third party privacy; frustrate the 
investigative process; jeopardize the legitimate correctional interests 
of safety, security, and good order to prison facilities; or otherwise 
compromise, impede, or interfere with BOP or other law enforcement 
agency activities.
    (4) From the amendment provisions from subsection (d) because 
amendment of the records may interfere with law enforcement operations 
and would impose an impossible administrative burden by requiring that, 
in addition to efforts to ensure accuracy so as to withstand possible 
judicial scrutiny, it would require that law enforcement information be 
continuously reexamined, even where the information may have been 
collected from the record subject.

[[Page 284]]

Also, some of these records come from other Federal criminal justice 
agencies or State, local and foreign jurisdictions, or from Federal and 
State probation and judicial offices, and it is administratively 
impossible to ensure that the records comply with this provision.
    (5) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can be obtained from other persons who are familiar with such 
individual and his/her activities. In such investigations it is not 
feasible to rely solely upon information furnished by the individual 
concerning his/her own activities since it may result in inaccurate 
information.
    (6) From subsection (e)(3) because in view of BOP's operational 
responsibilities, application of this provision to the collection of 
information is inappropriate. Application of this provision could 
provide the subject with substantial information which may in fact 
impede the information gathering process or compromise an investigation.
    (7) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely and 
complete. Material which may seem unrelated, irrelevant or incomplete 
when collected may take on added meaning or significance at a later date 
or as an investigation progresses. Also, some of these records may come 
from other Federal, State, local and foreign law enforcement agencies, 
and from Federal and State probation and judicial offices and it is 
administratively impossible to ensure that the records comply with this 
provision. It would also require that law enforcement information be 
continuously reexamined even where the information may have been 
collected from the record subject.
    (8) From subsection (e)(8) because the nature of BOP law enforcement 
activities renders impractical the notice of compliance with compulsory 
legal process. This requirement could present a serious impediment to 
law enforcement such as revealing investigative techniques or the 
existence of confidential investigations, jeopardize the security of 
third parties, or otherwise compromise law enforcement efforts.
    (9)-(10) [Reserved]
    (11) From subsections (f) and (g) to the extent that this system is 
exempt from the access and amendment provisions of subsection (d).
    (g) The following system of records is exempt pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2), and (3), (e)(5) and (e)(8), and (g) of 5 U.S.C. 552a. In 
addition, the following system of records is exempt pursuant to the 
provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections (c)(3), 
(d), and (e)(1) of 5 U.S.C. 552a:

Bureau of Prisons, Office of Internal Affairs Investigative Records, 
          JUSTICE/BOP-012

    (h) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), 
(k)(1), and (k)(2). Where compliance would not appear to interfere with 
or adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, e.g., public source materials, the applicable 
exemption may be waived, either partially or totally, by the Office of 
Internal Affairs (OIA). Exemptions from the particular subsections are 
justified for the following reasons:

    (1) From subsection (c)(3) because release of disclosure accounting 
could alert the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of the 
investigation and the fact that they are subjects of the investigation, 
and reveal investigative interest by not only the OIA but also by the 
recipient agency. Since release of such information to the subjects of 
an investigation would provide them with significant information 
concerning the nature of the investigation, release could result in 
activities that would impede or compromise law enforcement such as: the 
destruction of documentary evidence; improper influencing of witnesses; 
endangerment of the physical safety of confidential sources, witnesses, 
and law enforcement personnel; fabrication

[[Page 285]]

of testimony; and flight of the subject from the area. In addition, 
release of disclosure accounting could result in the release of properly 
classified information which could compromise the national defense or 
disrupt foreign policy.

    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.

    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
provide the subject of an investigation with information concerning law 
enforcement activities such as that relating to an actual or potential 
criminal, civil or regulatory violation; the existence of an 
investigation; the nature and scope of the information and evidence 
obtained as to his activities; the identity of confidential sources, 
witnesses, and law enforcement personnel; and information that may 
enable the subject to avoid detection or apprehension. Such disclosure 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation; endanger 
the physical safety of confidential sources, witnesses, and law 
enforcement personnel; and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of properly classified information which could compromise the 
national defense or disrupt foreign policy. Amendment of the records 
would interfere with ongoing investigations and law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with the law enforcement 
responsibilities of the OIA for the following reasons:
    (i) It is not possible to detect relevance or necessity of specific 
information in the early stages of a civil, criminal or other law 
enforcement investigation, case, or matter, including investigations in 
which use is made of properly classified information. Relevance and 
necessity are questions of judgment and timing, and it is only after the 
information is evaluated that the relevance and necessity of such 
information can be established.
    (ii) During the course of any investigation, the OIA may obtain 
information concerning actual or potential violations of laws other than 
those within the scope of its jurisdiction. In the interest of effective 
law enforcement, the OIA should retain this information as it may aid in 
establishing patterns of criminal activity, and can provide valuable 
leads for Federal and other law enforcement agencies.
    (iii) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information may be supplied to an 
investigator which relates to matters incidental to the primary purpose 
of the investigation but which may relate also to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts, violations of rules of conduct, or 
any other misconduct must be obtained from other sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful litigation.

[[Page 286]]

    (6) From subsection (e)(3) because the application of this provision 
would provide the subject of an investigation with substantial 
information which could impede or compromise the investigation. 
Providing such notice to a subject of an investigation could interfere 
with an undercover investigation by revealing its existence, and could 
endanger the physical safety of confidential sources, witnesses, and 
investigators by revealing their identities.
    (7) From subsection (e)(5) because the application of this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In the 
collection of information for law enforcement purposes, it is impossible 
to determine in advance what information is accurate, relevant, timely, 
and complete. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
an investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigation report, and 
thereby impede effective law enforcement.
    (8) From subsection (e)(8) because the application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigation techniques, 
procedures, and/or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1), and (k)(2) of the Privacy Act.
    (i) Consistent with the legislative purpose of the Privacy Act of 
1974 (Pub. L. 93-579) the BOP has initiated a procedure whereby federal 
inmates in custody may gain access and review their individual prison 
files maintained at the institution of incarceration. Access to these 
files will be limited only to the extent that the disclosure of records 
to the inmate would jeopardize internal decision-making or policy 
determinations essential to the effective operation of the Bureau of 
Prisons; to the extent that disclosure of the records to the inmate 
would jeopardize privacy rights of others, or a legitimate correctional 
interest of security, custody, or rehabilitation; and to the extent 
information is furnished with a legitimate expectation of 
confidentiality. The Bureau of Prisons will continue to provide access 
to former inmates under existing regulations as is consistent with the 
interests listed above. Under present Bureau of Prisons regulations, 
inmates in federal institutions may file administrative complaints on 
any subject under the control of the Bureau. This would include 
complaints pertaining to information contained in these systems of 
records.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
6-86, 51 FR 15479, Apr. 24, 1986; Order No. 113-96, 61 FR 6316, Feb. 20, 
1996; Order No. 114-96, 61 FR 6317, Feb. 20, 1996; Order No. 115-96, 61 
FR 6319, Feb. 20, 1996]



Sec. 16.98  Exemption of the Drug Enforcement Administration (DEA)--limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (d):
    (1) Automated Records and Consummated Orders System/Diversion 
Analysis and Detection System (ARCOS/DADS) (Justice/DEA-003)
    (2) Controlled Substances Act Registration Records (Justice/DEA-005)
    (3) Registration Status/Investigatory Records (Justice/DEA-012)
    (b) These exemptions apply only to the extent that information in 
these systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of the disclosure 
accounting would enable the subject of an investigation to gain valuable 
information concerning the nature and scope of the investigation and 
seriously hamper the regulatory functions of the DEA.
    (2) From subsection (d) because access to records contained in these 
systems may provide the subject of an investigation information that 
could enable him to avoid compliance with the Drug Abuse Prevention and 
Control Act of 1970 (Pub. L. 91-513).
    (c) Systems of records identified in paragraphs (c)(1) through 
(c)(6) below

[[Page 287]]

are exempted pursuant to the provisions of 5 U.S.C. 552a(j)(2) from 
subsections (c)(3) and (4), (d), (e)(1), (2) and (3), (e)(5), (e)(8) and 
(g) of 5 U.S.C. 552a. In addition, systems of records identified in 
paragraphs (c)(1), (c)(3), (c)(4), and (c)(5) below are also exempted 
pursuant to the provisions of 5 U.S.C. 552a(k)(2) from subsections 
(c)(3), (d) and (e)(1). Finally, systems of records identified in 
paragraphs (c)(1), (c)(2), (c) (3) and (c)(5) below are also exempted 
pursuant to the provisions of 5 U.S.C. 552a(k)(1) from subsections 
(c)(3), (d) and (e)(1):
    (1) Air Intelligence Program (Justice/DEA-001)
    (2) Investigative Reporting and Filing System (Justice/DEA-008)
    (3) Planning and Inspection Division Records (Justice/DEA-010)
    (4) Operations Files (Justice/DEA-011)
    (5) Security Files (Justice/DEA-013)
    (6) System to Retrieve Information from Drug Evidence (Stride/
Ballistics) (Justice/DEA-014)
    (d) Exemptions apply to the following systems of records only to the 
extent that information in the systems is subject to exemption pursuant 
to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2): Air Intelligence Program 
(Justice/DEA-001); Planning and Inspection Division Records (Justice/
DEA-010); and Security Files (Justice/DEA-013). Exemptions apply to the 
Investigative Reporting and Filing System (Justice/DEA-008) only to the 
extent that information in the system is subject to exemption pursuant 
to 5 U.S.C. 552a(j) (2) and (k)(1). Exemptions apply to the Operations 
Files (Justice/DEA-011) only to the extent that information in the 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and 
(k)(2). Exemptions apply to the System to Retrieve Information from Drug 
Evidence (STRIDE/Ballistics) (Justice/DEA-014) only to the extent that 
information in the system is subject to exemption pursuant to 5 U.S.C. 
552a(j)(2). Exemption from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
would provide to the subjects of an investigation significant 
information concerning the nature of the investigation and thus would 
present the same impediments to law enforcement as those enumerated in 
paragraph (d)(3) regarding exemption from subsection (d).
    (2) From subsection (c)(4) to the extent that it is not applicable 
because an exemption is being claimed from subsection (d).
    (3) From the access provisions of subsection (d) because access to 
records in this system of records would present a serious impediment to 
law enforcement. Specifically, it could inform the record subject of an 
actual or potential criminal, civil, or regulatory investigation of the 
existence of that investigation; of the nature and scope of the 
information and evidence obtained as to his activities; of the identity 
of confidential sources, witnesses, and law enforcement personnel; and 
of information that may enable the subject to avoid detection or 
apprehension. Similarly, it may alert collateral suspects yet 
unprosecuted in closed cases. It could prevent the successful completion 
of the investigation; endanger the life, health, or physical safety of 
confidential sources, witnesses, and law enforcement personnel, and/or 
lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony; or it may simply reveal a 
sensitive investigative technique. In addition, granting access to such 
information could result in the disclosure of confidential/security-
sensitive or other information that would constitute an unwarranted 
invasion of the personal privacy of third parties. Finally, access to 
the records could result in the release of properly classified 
information which would compromise the national defense or disrupt 
foreign policy. From the amendment provisions of subsection (d) because 
amendment of the records would interfere with ongoing investigations and 
law enforcement activities and impose an impossible administrative 
burden by requiring investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with the law enforcement 
responsibilities of the DEA for the following reasons:

[[Page 288]]

    (i) It is not possible to detect relevance or necessity of specific 
information in the early stages of a civil, criminal or other law 
enforcement investigation, case, or matter, including investigations 
during which DEA may obtain properly classified information. Relevance 
and necessity are questions of judgment and timing, and it is only after 
the information is evaluated that the relevance and necessity of such 
information can be established.
    (ii) During the DEA's investigative activities DEA may detect the 
violation of either drug-related or non-drug related laws. In the 
interests of effective law enforcement, it is necessary that DEA retain 
all information obtained because it can aid in establishing patterns of 
activity and provide valuable leads for Federal and other law 
enforcement agencies or otherwise assist such agencies in discharging 
their law enforcement responsibilities. Such information may include 
properly classified information, the retention of which could be in the 
interests of national defense and/or foreign policy.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts must be obtained from other 
sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful prosecution.
    (6) From subsection (e)(3) because the requirements thereof would 
constitute a serious impediment to law enforcement in that they could 
compromise the existence of an actual or potential confidential 
investigation and/or permit the record subject to speculate on the 
identity of a potential confidential source, and endanger the life, 
health or physical safety or either actual or potential confidential 
informants and witnesses, and of investigators/law enforcement 
personnel. In addition, the notification requirement of subsection 
(e)(3) could impede collection of that information from the record 
subject, making it necessary to collect the information solely from 
third party sources and thereby inhibiting law enforcement efforts.
    (7) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions imposed by subsection (e)(5) would 
restrict the ability of trained investigators and intelligence analysts 
to exercise their judgment in reporting on investigations and impede the 
development of criminal intelligence necessary for effective law 
enforcement.
    (8) From subsection (e)(8) because the application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigative techniques, 
procedures, or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.
    (e) The following systems of records are exempt from 5 U.S.C. 552a 
(d)(1) and (e)(1):
    (1) Grants of Confidentiality Files (GCF) (Justice/DEA-017), and
    (2) DEA Applicant Investigations (Justice/DEA-018).
    (f) These exemptions apply only to the extent that information in 
these systems is subject to exception pursuant to 5 U.S.C. 552a(k)(5). 
Exemptions from the particular subsections are justified for the 
following reasons:

[[Page 289]]

    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse to provide information 
concerning an applicant for a grant of confidentiality with DEA. By 
permitting access to information which may reveal the identity of the 
source of that information--after a promise of confidentiality has been 
given--DEA would breach the promised confidentiality. Ultimately, such 
breaches would restrict the free flow of information which is vital to a 
determination of an applicant's qualifications for a grant.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluation purposes, it is impossible to determine 
in advance what exact information may be of assistance in determining 
the qualifications and suitability of a candidate. Information which may 
appear irrelevant, when combined with other apparently irrelevant 
information, can on occasion provide a composite picture of an applicant 
which assists in determining whether a grant of confidentiality is 
warranted.
    (g) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e)(5), (e)(8) and (g) of 5 U.S.C. 552a. In 
addition, this system of records is exempted pursuant to the provisions 
of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections (c)(3), (d), and 
(e)(1):

Freedom of Information/Privacy Act Records (Justice/DEA-006)

    (h) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), 
(k)(1), and (k)(2). Exemptions from the particular subsections are 
justified for the following reasons:
    (1) From subsection (c)(3) for the reasons given in paragraphs 
(b)(1) and (d)(1).
    (2) From subsection (c)(4) to the extent that is not applicable 
because an exemption is being claimed from subsection (d).
    (3) From subsection (d) for the reasons given in paragraphs (b)(2), 
(d)(3), and (f)(1).
    (4) From subsection (e)(1) for reasons given in paragraphs (d)(4) 
and (f)(2).
    (5) From subsection (e)(2) for reasons given in paragraph (d)(5).
    (6) From subsection (e)(3) for reasons given in paragraph (d)(6).
    (7) From subsection (e)(5) for reasons given in paragraph (d)(7).
    (8) From subsection (e)(8) for the reasons given in paragraph 
(d)(8).
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.

[Order No. 88-94, 59 FR 29717, June 9, 1994, as amended by Order No. 
127-97, 62 FR 2903, Jan. 21, 1997]



Sec. 16.99   Exemption of Immigration and Naturalization Service System--limited access.

    (a) The following systems of records of the Immigration and 
Naturalization Service are exempt from 5 U.S.C. 552a (c) (3) and (4), 
(d), (e) (1), (2) and (3), (e) (4)(G) and (H), (e) (5) and (8), and (g):
    (1) The Immigration and Naturalization Service Alien File (A-File) 
and Central Index System (CIS), JUSTICE/INS-001A.
    (2) The Immigration and Naturalization Service Index System, 
JUSTICE/INS-001 which consists of the following subsystems:
    (i) Agency Information Control Record Index.
    (ii) Alien Enemy Index.
    (iii) Congressional Mail Unit Index.
    (iv) Air Detail Office Index.
    (v) Anti-smuggling Index (general).
    (vi) Anti-smuggling Information Centers Systems for Canadian and 
Mexican Borders.
    (vii) Border Patrol Sectors General Index System.
    (viii) Contact Index.
    (ix) Criminal, Narcotic, Racketeer and Subversive Indexes.
    (x) Enforcement Correspondence Control Index System.
    (xi) Document Vendors and Alterers Index.
    (xii) Informant Index.
    (xiii) Suspect Third Party Index.
    (xiv) Examination Correspondence Control Index.

[[Page 290]]

    (xv) Extension Training Enrollee Index.
    (xvi) Intelligence Index.
    (xvii) Naturalization and Citizenship Indexes.
    (xviii) Personnel Investigations Unit Indexes.
    (xix) Service Look-Out Subsystem.
    (xx) White House and Attorney General Correspondence Control Index.
    (xxi) Fraudulent Document Center Index.
    (xxii) Emergency Reassignment Index.
    (xxiii) Alien Documentation, Identification, and Telecommunication 
(ADIT) System.

    The exemptions apply to the extent that information in these 
subsystems is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and 
(k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure pursuant to the routine uses published for 
these subsystems would permit the subject of a criminal or civil 
investigation to obtain valuable information concerning the nature of 
that investigation and present a serious impediment to law enforcement.
    (2) From subsection (c)(4) since an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (3) From subsection (d) because access to the records contained in 
these subsystems would inform the subject of a criminal or civil 
investigation of the existence of that investigation, provide the 
subject of the investigation with information that might enable him to 
avoid detection or apprehension, and present a serious impediment to law 
enforcement.
    (4) From subsection (e)(1) because in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction. In 
the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable leads for those law enforcement 
agencies that are charged with enforcing other segments of the criminal 
law.
    (5) From subsection (e)(2) because in a criminal or civil 
investigation, the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be placed on notice of the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life or physical safety of confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because these subsystems of 
records are exempt from individual access pursuant to subsection (j) of 
the Privacy Act of 1974.
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the Immigration and 
Naturalization Service's ability to issue administrative subpoenas and 
could reveal investigative techniques and procedures.

[[Page 291]]

    (10) From subsection (g) because these subsystems of records are 
compiled for law enforcement purposes and have been exempted from the 
access provisions of subsections (d) and (f).
    (11) In addition, these systems of records are exempt from 
subsections (c)(3), (d), (e)(1), (e)(4) (G) and (H) to the extent they 
are subject to exemption pursuant to 5 U.S.C. 552a(k)(1). To permit 
access to records classified pursuant to Executive Order would violate 
the Executive Order protecting classified information.
    (c) The Border Patrol Academy Index Subsystem is exempt from 5 
U.S.C. 552a (d) and (f).

This exemption applies only to the extent that information in this 
subsystem is subject to exemption pursuant to 5 U.S.C. 552a(k).
    (d) Exemptions for the particular subsections are justified for the 
following reasons.
    (1) From subsection (d) because exemption is claimed only for those 
testing and examination materials used to determine an individual's 
qualifications for retention and promotion in the Immigration and 
Naturalization Service. This is necessary to protect the integrity of 
testing materials and to insure fair and uniform examinations.
    (2) From subsection (f) because the subsystem of records has been 
exempted from the access provisions of subsection (d).
    (e) The Orphan Petitioner Index and Files (Justice/INS-007) system 
of records is exempt from 5 U.S.C. 552a(d). This exemption applies only 
to the extent that information in this system is subject to exemption 
pursuant to 5 U.S.C. 552a(k)(1).
    (f) Exemption from paragraph (d) of this section is claimed solely 
because of the possibility of receipt of classified information during 
the course of INS investigation of prospective adoptive parents.

Although it would be rare, prospective adoptive parents may originally 
be from foreign countries (for example) and information received on them 
from their native countries may require classification under Executive 
Order 12356 which safeguards national security information. If such 
information is relevant to the INS determination with respect to 
adoption, the information would be kept in the file and would be 
classified accordingly. Therefore, access could not be granted to the 
record subject under the Privacy Act without violating E.O. 12356.
    (g) The Office of Internal Audit Investigations Index and Records 
(Justice/INS-002) system of records is exempt under the provisions of 5 
U.S.C. 552a(j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), 
(3), (5) and (8); and (g), but only to the extent that this system 
contains records within the scope of subsection (j)(2), and to the 
extent that records in the system are subject to exemption therefrom. In 
addition, this system of records is also exempt under the provisions of 
5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only 
to the extent that this system contains records within the scope of 
subsection (k)(2), and to the extent that records in the system are 
subject to exemption therefrom.
    (h) The following justification apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure could permit the subject of an actual or 
potential criminal or civil investigation to obtain valuable information 
concerning the existence and nature of the investigation, the fact that 
individuals are subjects of the investigation, and present a serious 
impediment to law enforcement.
    (2) From subsection (c)(4) to the extent that the exemption from 
subsection (d) is applicable. Subsection (c)(4) will not be applicable 
to the extent that records in the system are properly withholdable under 
subsection (d).
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of a criminal or civil investigation of the existence 
of that investigation; of the nature and scope of the information and 
evidence obtained as to their activities; of the identity of 
confidential sources, witnesses and law enforcement personnel; and of 
information that may enable the subject to avoid

[[Page 292]]

detection or apprehension. Such disclosures would present a serious 
impediment to effective law enforcement where they prevent the 
successful completion of the investigation; endanger the physical safety 
of confidential sources, witnesses, and law enforcement personnel; and/
or lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony. In addition, granting access 
to these records could result in a disclosure that would constitute an 
unwarranted invasion of the privacy of third parties. Amendment of the 
records would interfere with ongoing investigations and law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction, in 
the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable leads for those law enforcement 
agencies that are charged with enforcing other segments of the criminal 
law.
    (5) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection or apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment of criminal 
law enforcement in that it could compromise the existence of a 
confidential investigation, reveal the identify of confidential sources 
of information and endanger the life or physical safety of confidential 
informants.
    (7) From subsection (e)(5) because in the collection of information 
for criminal law enforcement purposes it is impossible to determine in 
advance what information is accurate, relevant, timely, and complete. 
With the passage of time, seemingly irrelevant or untimely information 
may acquire new significance as further investigation brings new details 
to light and the accuracy of such information can only be determined in 
a court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (8) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
criminal law enforcement as this could interfere with the Immigration 
and Naturalization Service's ability to issue administrative subpoenas 
and could reveal investigative techniques and procedures.
    (9) From subsection (g) for those portions of this system of records 
that were compiled for criminal law enforcement purposes and which are 
subject to exemption from the access provisions of subsections (d) 
pursuant to subsection (j)(2).

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
688-77, 42 FR 10001, Feb. 18, 1977; Order No. 6-84, 49 FR 20812, May 17, 
1984; Order No. 25-88, 53 FR 41161, Oct. 20, 1988; Order No. 137-97, 62 
FR 34169, June 25, 1997]



Sec. 16.100   Exemption of Office of Justice Programs--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d):

    (1) The Civil Rights Investigative System (JUSTICE/OJP-008).

This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (b) Exemption from subsection (d) is claimed since access to 
information in the Civil Rights Investigative System prior to final 
administrative resolution will deter conciliation and compliance 
efforts. Consistent with the legislative

[[Page 293]]

purpose of the Privacy Act of 1974, decisions to release information 
from the system will be made on a case-by-case basis and information 
will be made available where it does not compromise the complaint and 
compliance process. In addition, where explicit promises of 
confidentiality must be made to a source during an investigation, 
disclosure will be limited to the extent that the identity of such 
confidential sources will not be compromised.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
5-78, 43 FR 36439, Aug. 17, 1978; Order No. 43-80, 45 FR 6780, Jan. 30, 
1980; Order No. 6-86, 51 FR 15479, Apr. 24, 1986]



Sec. 16.101   Exemption of U.S. Marshals Service Systems--limited access, as indicated.

    (a) The following system of records is exempt from 5 U.S.C. 
552(a)(c) (3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), 
(e)(5), (e)(8), (f) and (g):

    (1) Warrant Information System (JUSTICE/USM-007).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of disclosure 
accounting for disclosure made pursuant to subsection (b) of the Act, 
including those permitted under routine uses published for this system 
of records would permit a person to determine whether he is the subject 
of a criminal investigation, and to determine whether a warrant has been 
issued against him, and therefore present a serious impediment to law 
enforcement.
    (2) From subsection (c)(4) since an exemption is being claimed for 
subsection (d) of the Act, this section is inapplicable.
    (3) From subsection (d) because access to records would inform a 
person for whom a federal warrant has been issued of the nature and 
scope of information obtained as to his activities, of the identity of 
informants, and afford the person sufficient information to enable the 
subject to avoid apprehension. These factors would present a serious 
impediment to law enforcement in that they would thwart the warrant 
process and endanger lives of informants etc.
    (4) From subsections (e)(1) and (e)(5) because the requirements of 
these subsections would present a serious impediment to law enforcement 
in that it is impossible to determine in advance what information 
collected during an investigation will be important or crucial to the 
apprehension of Federal fugitives. In the interest of effective law 
enforcement, it is appropriate in a thorough investigation to retain 
seemingly irrelevant, untimely, or inaccurate information which, with 
the passage of time, would aid in establishing patterns of activity and 
provide investigative leads toward fugitive apprehension and assist in 
law enforcement activities of other agencies.
    (5) From subsection (e)(2) because the requirement that information 
be collected to the greatest extent practical from the subject 
individual would present a serious impediment to law enforcement because 
the subject of the investigation or prosecution would be placed on 
notice as to the existence of the warrant and would therefore be able to 
avoid detection or apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation or reveal identity of confidential informants.
    (7) From subsections (e)(4) (G) and (H) since an exemption is being 
claimed for subsections (f) and (d) of the Act, these subsections are 
inapplicable.
    (8) From subsection (e)(8) because the individual notice requirement 
of this subsection would present a serious impediment to law enforcement 
in that it would give persons sufficient warning to avoid warrants, 
subpoena, etc.
    (9) From subsection (f) because procedures for notice to an 
individual pursuant to subsection (f)(1) as to existence of records 
pertaining to him dealing with warrants must be exempted because such 
notice to individuals would

[[Page 294]]

be detrimental to the successful service of a warrant. Since an 
exemption is being claimed for subsection (d) of the Act the rules 
required pursuant to subsections (f) (2) through (5) are inapplicable to 
this system of records.
    (10) From subsection (g) since an exemption is being claimed for 
subsection (d) and (f) this section is inapplicable and is exempted for 
the reasons set forth for these subsections.
    (c) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f)(2) 
and (g):

    (1) Witness Security System (JUSTICE/USM-008).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosures made pursuant to subsection (b) of the Act 
including those permitted under routine uses published for this system 
of records would hamper the effective functioning of the Witness 
Security Program which by its very nature requires strict 
confidentiality vis-a-vis the records.
    (2) From subsection (c)(4) for the reason stated in (b)(2) of this 
section.
    (3) From subsection (d) because the U.S. Marshals Service Witness 
Security Program aids efforts of law enforcement officials to prevent, 
control or reduce crime. Access to records would present a serious 
impediment to effective law enforcement through revelation of 
confidential sources and through disclosure of operating procedures of 
the program, and through increased exposure of the program to the 
public.
    (4) From subsection (e)(2) because in the Witness Security Program 
the requirement that information be collected to the greatest extent 
possible from the subject individual would constitute an impediment to 
the program, which is sometimes dependent on sources other than the 
subject witness for verification of information pertaining to the 
witness.
    (5) From subsection (e)(3) for the reason stated in (b)(6) of this 
section.
    (6) From subsection (e)(4) (G) and (H) for the reason stated in 
(b)(7) of this section.
    (7) From subsection (e)(8) for the reason stated in (b)(8) of this 
section.
    (8) From subsection (f)(2) since an exemption is being claimed for 
subsection (d) of the Act the rules required pursuant to subsection (f) 
(2) through (5) are inapplicable to this system of records.
    (9) From subsection (g) for the reason stated in (b)(10) of this 
section.
    (e) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (f) and (g) and 
may be additionally exempt from subsection (e)(8):

    (1) Internal Investigations System (JUSTICE/USM-002)--Limited 
access.

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5) or 
(j)(2).
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) where the release of the disclosure 
accounting for disclosures made pursuant to subsection (b) of the Act 
would reveal a source who furnished information to the Government in 
confidence.
    (2) From subsection (c)(4) for the reason stated in (b)(2) of this 
section.
    (3) From subsection (d) because access to information in this system 
which was obtained from a confidential source would impede the effective 
investigation into employee conduct for purposes of determining 
suitability, eligibility, or qualifications for Federal employment in 
that it would inhibit furnishing of information by sources which desire 
to remain confidential.
    (4) From subsection (e)(2) because the requirement that information 
be collected to the greatest extent practicable from the subject 
individual would present a serious inpediment to law enforcement because 
the subject of the investigation or prosecution would be placed on 
notice as to the existence of the investigation and would therefore be 
able to compromise the investigation and avoid detection or 
apprehension.

[[Page 295]]

    (5) From subsection (e)(3) for the reason stated in (b)(6) of this 
section.
    (6) From subsections (e)(4) (G) and (H) for the reason stated in 
(b)(7) of this section.
    (7) From subsection (e)(8) because the individual notice requirement 
of this subsection would present a serious impediment to law enforcement 
in that the subject of the investigation would be alerted as to the 
existence of the investigation and therefore be able to compromise the 
investigation and avoid detection, subpoena, etc.
    (8) From subsection (f) because procedures for notice to an 
individual pursuant to subsection (f)(1) as to the existence of records 
dealing with investigations of criminal or civil law violations would 
enable the individual to compromise the investigation and evade 
detection or apprehension. Since an exemption is being claimed for 
subsection (d) of the Act, the rules required pursuant to subsections 
(f)(2) through (f)(5) are not applicable to this system.
    (9) From subsection (g) for the reason stated in (b)(10) of this 
section.
    (g) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G) and (H), (e)(5), 
(e)(8), (f) and (g):

    (1) U.S. Marshals Service Threat Analysis Information System 
(JUSTICE/USM-009).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit a person to determine whether he or she has been 
identified as a specific threat to USMS protectees and to determine the 
need for countermeasures to USMS protective activities and thereby 
present a serious impediment to law enforcement.
    (2) From subsection (c)(4) because it is inapplicable since an 
exemption is being claimed for subsection (d).
    (3) From subsection (d) because to permit access to records would 
inform a person of the nature and scope of information obtained as to 
his or her threat-related activities and of the identity of confidential 
sources, and afford the person sufficient information to develop 
countermeasures to thwart protective arrangements and endanger lives of 
USMS protectees, informants, etc. To permit amendment of the records 
would interfere with ongoing criminal law enforcement and impose an 
impossible administrative burden requiring criminal investigations to be 
continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because the collection of 
investigatory information used to assess the existence, extent and 
likelihood of a threat situation necessarily includes material from 
which it is impossible to identify and segregate information which may 
not be important to the conduct of a thorough assessment. It is often 
impossible to determine in advance if all information collected is 
accurate, relevent, timely and complete but, in the interests of 
developing effective protective measures, it is necessary that the U.S. 
Marshals Service retain this information in order to establish patterns 
of activity to aid in accurately assessing threat situations. The 
restrictions of subsections (e) (1) and (5) would impede the protective 
responsibilities of the Service and could result in death or serious 
injury to Marshals Service protectees.
    (5) From subsection (e)(2) because to collect information from the 
subject individual would serve notice that he or she is identified as a 
specific threat to USMS protectees and would enable the subject 
individual to develop countermeasures to protective activities and 
thereby present a serious impediment to law enforcement.
    (6) From subsection (e)(3) because to inform individuals as required 
by this subsection would enable the subject individual to develop 
countermeasures to USMS protective arrangements or identify confidential 
sources and thereby present a serious impediment to law enforcement.
    (7) From subsections (e)(4) (G) and (H) because they are 
inapplicable since an exemption is being claimed for subsections (d) and 
(f) of the Act.
    (8) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to develop countermeasures to protective 
arrangements

[[Page 296]]

and thereby present a serious impediment to law enforcement through 
compromise of protective procedures, etc.
    (9) From subsection (f) because this system of records is exempt 
from the provisions of subsection (d).
    (10) From subsection (g) because it is inapplicable since an 
exemption is being claimed for subsections (d) and (f).
    (i) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (d):

    (1) Judicial Facility Security Index System (JUSTICE/USM-010)

These exemptions apply only to the extent that information in this 
system is exempt pursuant to 5 U.S.C. 552a(k)(5).
    (j) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) only to the extent that release of the 
disclosure accounting would reveal the identity of a confidential 
source.
    (2) From subsection (d) only to the extent that access to 
information would reveal the identity of a confidential source.
    (k) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G) and (H), (e)(5), 
(e)(8), (f) and (g):

    (1) U.S. Marshals Service Freedom of Information/Privacy Act (FOIA/
PA) Files (JUSTICE/USM-012)

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(2) 
and (k)(5).
    (l) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit the subject of an investigation to obtain 
valuable information concerning the existence and nature of the 
investigation and present a serious impediment to law enforcement.
    (2) From subsection (c)(4) because that portion of this system which 
consists of investigatory records compiled for law enforcement purposes 
is being exempted from the provisions of subsection (d), rendering this 
provision not applicable.
    (3) From subsection (d) because to permit access to investigatory 
records would reveal the identity of confidential sources and impede 
ongoing investigative or law enforcement activities by the premature 
disclosure of information related to those efforts. To permit amendment 
of the records would interfere with ongoing criminal law enforcement and 
impose an impossible administrative burden by requiring criminal 
investigations to be continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because it is often impossible 
to determine in advance if investigatory records contained in this 
system are accurate, relevant, timely and complete but, in the interests 
of effective law enforcement, it is necessary to retain this information 
to aid in establishing patterns of activity and provide leads in 
criminal investigations.
    (5) From subsection (e)(2) because to collect information from the 
subject individual would serve notice that he or she is the subject of 
criminal investigative or law enforcement activity and thereby present a 
serious impediment to law enforcement.
    (6) From subsection (e)(3) because to inform individuals as required 
by this subsection would enable the subject individual to identify 
confidential sources, reveal the existence of an investigation, and 
compromise law enforcement efforts.
    (7) From subsections (e)(4) (G) and (H) because they are 
inapplicable since an exemption is being claimed for subsections (d) and 
(f) for investigatory records contained in this system.
    (8) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to evade law enforcement efforts.
    (9) From subsection (f) because investigatory records contained in 
this system are exempt from the provisions of subsection (d).
    (10) From subsection (g) because it is inapplicable since an 
exemption is being claimed for subsections (d) and (f).
    (m) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and

[[Page 297]]

(4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f) and (g):

    (1) U.S. Marshals Service Administrative Proceedings, Claims and 
Civil Litigation Files (JUSTICE/USM-013).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) or 
(k)(5).
    (n) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting for disclosures pursuant to the routine uses published for 
this system would permit the subject of a criminal or civil case or 
matter under investigation, or a case or matter in litigation, or under 
regulatory or administrative review or action, to obtain valuable 
information concerning the nature of that investigation, case or matter, 
and present a serious impediment to law enforcement or civil legal 
activities, or reveal a confidential source.
    (2) From subsection (c)(4) because the exemption claimed for 
subsection (d) will make this section inapplicable.
    (3) From subsection (d) because to permit access to records 
contained in this system would provide information concerning litigation 
strategy, or case development, and/or reveal the nature of the criminal 
or civil case or matter under investigation or administrative review, or 
in litigation, and present a serious impediment to law enforcement or 
civil legal activities, or reveal a confidential source.
    (4) From subsection (e)(2) because effective legal representation, 
defense, or claim adjudication necessitates collecting information from 
all individuals having knowledge of the criminal or civil case or 
matter. To collect information primarily from the subject individual 
would present a serious impediment to law enforcement or civil legal 
activities.
    (5) From subsection (e)(3) because to inform the individuals as 
required by this subsection would permit the subject of a criminal or 
civil matter under investigation or administrative review to compromise 
that investigation or administrative review and thereby impede law 
enforcement efforts or civil legal activities.
    (6) From subsections (e)(4) (G) and (H) because these provisions are 
inapplicable since this system is exempt from subsections (d) and (f) of 
the Act.
    (7) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to compromise a criminal or civil 
investigation or administrative review and thereby impede law 
enforcement of civil legal activities.
    (8) From subsection (f) because this system of records is exempt 
from the provisions of subsection (d).
    (9) From subsection (g) because it is inapplicable since an 
exemption is claimed for subsections (d) and (f).
    (o) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), (5) and (g):
    (1) U.S. Marshals Service Prisoner Transportation System (JUSTICE/
USM-003).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (p) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) where the release of the disclosure 
accounting for disclosures made pursuant to subsection (b) of the Act 
would reveal a source who furnished information to the Government in 
confidence.
    (2) From subsection (c)(4) to the extent that the system is exempt 
from subsection (d).
    (3) From subsection (d) because access to records would reveal the 
names and other information pertaining to prisoners, including sensitive 
security information such as the identities and locations of 
confidential sources, e.g., informants and protected witnesses; and 
disclose access codes, data entry codes and message routing symbols used 
in law enforcement communications systems to schedule and effect 
prisoner movements. Thus, such a compromise of law enforcement 
communications systems would subject law enforcement personnel and other 
prisoners to harassment and possible danger, and present a serious 
threat to law enforcement activities. To permit

[[Page 298]]

amendment of the records would interfere with ongoing criminal law 
enforcement and impose an impossible administrative burden by requiring 
that information affecting the prisoner's security classification be 
continuously reinvestigated when contested by the prisoner, or by anyone 
on his behalf.
    (4) From subsections (e) (1) and (5) because the security 
classification of prisoners is based upon information collected during 
official criminal investigations; and, in the interest of ensuring safe 
and secure prisoner movements it may be necessary to retain information 
the relevance, necessity, accuracy, timeliness, and completeness of 
which cannot be readily established, but which may subsequently prove 
useful in establishing patterns of criminal activity or avoidance, and 
thus be essential to assigning an appropriate security classification to 
the prisoner. The restrictions of subsection (e) (1) and (5) would 
impede the information collection responsibilities of the USMS, and the 
lack of all available information could result in death or serious 
injury to USMS and other law enforcement personnel, prisoners in 
custody, and members of the public.
    (5) From subsection (e)(2) because the requirement to collect 
information from the subject individual would impede the information 
collection responsibilities of the USMS in that the USMS is often 
dependent upon sources other than the subject individual for 
verification of information pertaining to security risks posed by the 
individual prisoner.
    (6) From subsection (g) to the extent that the system is exempt from 
subsection (d).
    (q) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1), (2), (3), (e)(5) and (e)(8) and (g):

    (1) U.S. Marshals Service Prisoner Processing and Population 
Management System (JUSTICE/USM-005).

These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (r) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit the subject of a criminal proceeding to 
determine the extent or nature of law enforcement authorities' knowledge 
regarding his/her alleged misconduct or criminal activities. The 
disclosure of such information could alert the subject to devise ways in 
which to conceal his/her activities and/or prevent law enforcement from 
learning additional information about his/her activities, or otherwise 
inhibit law enforcement efforts. In addition, where the individual is 
the subject of an ongoing or potential inquiry/investigation, such 
release could reveal the nature thereof prematurely, and may also enable 
the subject to determine the identity of witnesses and informants. Such 
disclosure could compromise the ongoing or potential inquiry/
investigation, endanger the lives of witnesses and informants, or 
otherwise impede or thwart law enforcement efforts.
    (2) From subsection (c)(4) to the extent that the system is exempt 
from subsection (d).
    (3) From subsection (d) because to permit unlimited access would 
permit the subject of a criminal proceeding to determine the extent or 
nature of law enforcement authorities' knowledge regarding his/her 
alleged misconduct or criminal activities. The disclosure of such 
information could alert the subject to devise ways in which to conceal 
his/her activities and/or prevent law enforcement from learning 
additional information about his/her activities, or otherwise inhibit 
law enforcement efforts. Disclosure would also allow the subject to 
obtain sensitive information concerning the existence and nature of 
security measures and jeopardize the safe and secure transfer of the 
prisoner, the safety and security of other prisoners, informants and 
witnesses, law enforcement personnel, and the public. In addition, 
disclosure may enable the subject to learn prematurely of an ongoing or 
potential inquiry/investigation, and may also permit him/her to 
determine the identities of confidential sources, informants, or 
protected witnesses. Such disclosure could compromise the ongoing or 
potential inquiry/investigation, endanger the lives

[[Page 299]]

of witnesses and informants, or otherwise impede or thwart law 
enforcement efforts. Disclosure may also constitute an unwarranted 
invasion of the personal privacy of third parties. Further, disclosure 
would reveal access codes, data entry codes and message routing symbols 
used in law enforcement communications systems. Access to such codes and 
symbols would permit the subject to impede the flow of law enforcement 
communications and compromise the integrity of law enforcement 
information, and thus present a serious threat to law enforcement 
activities. To permit amendment of the records would expose security 
matters, and would impose an impossible administrative burden by 
requiring that security precautions, and information pertaining thereto, 
be continuously reevaluated if contested by the prisoner, or by anyone 
on his or her behalf. Similarly, to permit amendment could interfere 
with ongoing or potential inquiries/investigations by requiring that 
such inquiries/investigations be continuously reinvestigated, or that 
information collected (the relevance and accuracy of which cannot 
readily be determined) be subjected to continuous change.
    (4) From subsections (e)(1) and (5) because the system may contain 
investigatory information or information which is derived from 
information collected during official criminal investigations. In the 
interest of effective law enforcement and litigation, of securing the 
prisoner and of protecting the public, it may be necessary to retain 
information the relevance, necessity, accuracy, timeliness and 
completeness of which cannot be readily established. Such information 
may nevertheless provide investigative leads to other Federal or law 
enforcement agencies, or prove necessary to establish patterns of 
criminal activity or behavior, and/or prove essential to the safe and 
secure detention (and movement) of prisoners. Further, the provisions of 
(e)(1) and (e)(5) would restrict the ability of the USMS in exercising 
its judgment in reporting information during investigations or during 
the development of appropriate security measures, and thus present a 
serious impediment to law enforcement efforts.
    (5) From subsection (e)(2) because the requirement to collect 
information from the subject individual would impede the information 
collection responsibilities of the USMS which is often dependent upon 
sources other than the subject individual for verification of 
information pertaining to security risks posed by the individual 
prisoner, to alleged misconduct or criminal activity of the prisoner, or 
to any matter affecting the safekeeping and disposition of the 
individual prisoner.
    (6) From subsection (e)(3) because to inform individuals as required 
by this subsection could impede the information gathering process, 
reveal the existence of an ongoing or potential inquiry/investigation or 
security procedure, and compromise law enforcement efforts.
    (7) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to compromise an ongoing or potential 
inquiry/investigation and thereby evade and impede law enforcement and 
security efforts.
    (8) From subsection (g) to the extent that the system is exempt from 
subsection (d).
    (s) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), (3), (e) (5) and (e) (8) and (g):

            Joint Automated Booking Stations, Justice/USM-014

    (t) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Where compliance would not interfere with or adversely affect the law 
enforcement process, the USMS may waive the exemptions, either partially 
or totally. Exemption from the particular subsections are justified for 
the following reasons:
    (1) From subsections (c)(3) and (d) to the extent that access to 
records in this system of records may impede or interfere with law 
enforcement efforts, result in the disclosure of information that would 
constitute and unwarranted invasion of the personal privacy of 
collateral record subjects or other third parties, and/or jeopardize the 
health and/or safety of third parties.
    (2) Where access to certain records may be appropriate, exemption 
from

[[Page 300]]

the amendment provisions of subsection (d)(2) in necessary to the extent 
that the necessary and appropriate justification, together with proof of 
record inaccuracy, is not provided, and/or to the extent that numerous, 
frivolous requests to amend could impose an impossible administrative 
burden by requiring agencies to continuously review booking and arrest 
data, much of which is collected from the arrestee during the arrest.
    (3) From subsection (e)(1) to the extent that it is necessary to 
retain all information in order not to impede, compromise, or interfere 
with law enforcement efforts, e.g., where the significance of the 
information may not be readily determined and/or where such information 
may provide leads or assistance to Federal and other law enforcement 
agencies in discharging their law enforcement responsibilities.
    (4) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement since it may be necessary to obtain and verify information 
from a variety of sources other than the record subject to ensure 
safekeeping, security, and effective law enforcement. For example, it 
may be necessary that medical and psychiatric personnel provide 
information regarding the subject's behavior, physical health, or mental 
stability, etc. To ensure proper care while in custody, or it may be 
necessary to obtain information from a case agent or the court to ensure 
proper disposition of the subject individual.
    (5) From subsection (e)(3) because the requirement that agencies 
inform each individual whom it asks to supply information of such 
information as is required by subsection (e)(3) may, in some cases, 
impede the information gathering process or otherwise interfere with or 
compromise law enforcement efforts, e.g., the subject may deliberately 
withhold information, or give erroneous information.
    (6) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance and the accuracy of such information can only 
be determined in a court of law. The restrictions imposed by subsection 
(e)(5) would restrict the ability to collect information for law 
enforcement purposes and may prevent the eventual development of the 
necessary criminal intelligence or otherwise impede effective law 
enforcement.
    (7) From subsection (e)(8) to the extent that such notice may 
impede, interfere with, or otherwise compromise law enforcement and 
security efforts.
    (8) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d).
    (u) Consistent with the legislative purpose of the Privacy Act of 
1974, the United States Marshals Service will grant access to nonexempt 
material in records which are maintained by the Service. Disclosure will 
be governed by the Department's Privacy Regulations, but will be limited 
to the extent that the identity of confidential sources will not be 
compromised; subjects of an investigation of an actual or potential 
criminal, civil or regulatory violation will not be alerted to the 
investigation; the physical safety of witnesses, informants and law 
enforcement personnel will not be endangered; the privacy of third 
parties will not be violated; and that the disclosure would not 
otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
8-83, 48 FR 19024, Apr. 27, 1983; Order No. 10-86, 51 FR 20275, June 4, 
1986; Order No. 11-86, 51 FR 20277, June 4, 1986; Order No. 61-92, 57 FR 
3284, Jan. 29, 1992; Order No. 66-92, 57 FR 20654, May 14, 1992; Order 
No. 105-95, 60 FR 30467, June 9, 1995]

[[Page 301]]



Sec. 16.102  Exemption of Drug Enforcement Administration and Immigration and Naturalization Service Joint System of Records.

    (a) The following system of records is exempted pursuant to 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e)(4) (G), (H), and (I), (e)(5) and (8), (f), 
(g), and (h) of 5 U.S.C. 552a; in addition the following system of 
records is exempted pursuant to the provisions of 5 U.S.C. 552 (k)(1) 
and (k)(2) from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and 
(I), and (f) of 5 U.S.C. 552a.

    (1) Automated Intelligence Record System (Pathfinder), JUSTICE/DEA-
INS-111.

These exemptions apply to the extent that information in those systems 
is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) and 
(k)(2).
    (b) The system of records listed under paragraph (a) of this section 
is exempted, for the reasons set forth from the following provisions of 
5 U.S.C. 552a:

    (1)(c)(3). The release of the disclosure accounting for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for these systems of records, would 
permit the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to determine whether he is the 
subject of investigation, or to obtain valuable information concerning 
the nature of that investigation, and the information obtained, or the 
identity of witnesses and informants and would therefore present a 
serious impediment to law enforcement. In addition, disclosure of the 
accounting would amount to notice to the individual of the existence of 
a record; such notice requirement under subsection (f)(1) is 
specifically exempted for these systems of records.
    (2)(c)(4). Since an exemption is being claimed for subsection (d) of 
the Act (Access to Records) this subsection is inapplicable to the 
extent that these systems of records are exempted from subsection (d).
    (3)(d). Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation of the existence of that 
investigation, or the nature and scope of the information and evidence 
obtained as to his activities, of the identity of witnesses and 
informants, or would provide information that could enable the subject 
to avoid detection or apprehension. These factors would present a 
serious impediment to effective law enforcement because they could 
prevent the successful completion of the investigation, endanger the 
physical safety of witnesses or informants, and lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (4)(e)(1). The notices of these systems of records published in the 
Federal Register set forth the basic statutory or related authority for 
maintenance of this system. However, in the course of criminal or other 
law enforcement investigations, cases, and matters, the Immigration and 
Naturalization Service or the Drug Enforcement Administration will 
occasionally obtain information concerning actual or potential 
violations of law that are not strictly within its statutory or other 
authority or may compile information in the course of an investigation 
which may not be relevant to a specific prosecution. In the interests of 
effective law enforcement, it is necessary to retain such information in 
these systems of records since it can aid in establishing patterns of 
criminal activity and can provide valuable leads for federal and other 
law enforcement agencies.
    (5)(e)(2). In a criminal investigation or prosecution, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony.
     (6)(e)(3). The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (7)(e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that these systems of 
records are exempted from subsections (f) and (d).
    (8)(e)(4)(I). The categories of sources of the records in these 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in these systems, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal and 
other law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.

[[Page 302]]

    (9)(e)(5). In the collection of information for criminal law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can often only be determined 
in a court of law. The restrictions of subsection (e)(5) would restrict 
the ability of trained investigators, intelligence analysts, and 
government attorneys in exercising their judgment in reporting on 
information and investigations and impede the development of criminal or 
other intelligence necessary for effective law enforcement.
    (10)(e)(8). The individual notice requirements of subsection (e)(8) 
could present a serious impediment to law enforcement as this could 
interfere with the ability to issue warrants or subpoenas and could 
reveal investigative techniques, procedures, or evidence.
    (11)(f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an actual or potential criminal, civil, or regulatory 
investigation or prosecution must be exempted because such notice to an 
individual would be detrimental to the successful conduct and/or 
completion of an investigation or prosecution pending or future. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.

Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsections (f) (2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (12)(g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (13)(h). Since an exemption is being claimed for subsection (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (14) In addition, exemption is claimed for these systems of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) to 
the extent that the records contained in these systems are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.

[Order No. 742-77, 42 FR 40907, Aug. 12, 1977]



Sec. 16.103  Exemption of the INTERPOL-United States National Central Bureau (INTERPOL-USNCB) System.

    (a) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), and (3), (e)(4) (G) and (H), (e)(5) and 
(8), (f) and (g):

    (1) The INTERPOL-United States National Central Bureau (INTERPOL-
USNCB) (Department of Justice) INTERPOL-USNCB Records System (JUSTICE/
INTERPOL-001).

This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(2), 
and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of accounting 
disclosures would place the subject of an investigation on notice that 
he is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement.
    (2) From subsections (c)(4), (d), (e)(4) (G), and (H), (f) and (g) 
because these provisions concern individual access to records and such 
access might compromise ongoing investigations reveal investigatory 
techniques and confidential informants, and invade the privacy of 
private citizens who provide information in connection with a particular 
investigation.
    (3) From subsection (e)(1) because information received in the 
course of an international criminal investigation may involve a 
violation of state or local law, and it is beneficial to maintain this 
information to provide investigative leads to state and local law 
enforcement agencies.
    (4) From subsection (e)(2) because collecting information from the 
subject of criminal investigations would thwart the investigation by 
placing the subject on notice.

[[Page 303]]

    (5) From subsection (e)(3) because supplying an individual with a 
statement of the intended use of the requested information could 
compromise the existence of a confidential investigation, and may 
inhibit cooperation.
    (6) From subsection (e)(5) because the vast majority of these 
records come from local criminal justice agencies and it is 
administratively impossible to ensure that the records comply with this 
provision. Submitting agencies are, however, urged on a continuting 
basis to ensure that their records are accurate and include all 
dispositions.
    (7) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and the existence of 
confidential investigations.

[Order No. 8-82, 47 FR 44255, Oct. 7, 1982, as amended by Order No. 6-
86, 51 FR 15479, Apr. 24, 1986]



       Subpart F--Public Observation of Parole Commission Meetings

    Source: 42 FR 14713, Mar. 16, 1977, unless otherwise noted.



Sec. 16.200   Definitions.

    As used in this part:
    (a) The term Commission means the U.S. Parole Commision and any 
subdivision thereof authorized to act on its behalf.
    (b) The term meeting refers to the deliberations of at least the 
number of Commissioners required to take action on behalf of the 
Commission where such deliberations determine or result in the joint 
conduct or disposition of official Commission business.
    (c) Specifically included in the term meeting are;
    (1) Meetings of the Commission required to be held by 18 U.S.C. 
4203(a);
    (2) Special meetings of the Commission called pursuant to 18 U.S.C. 
4204(a)(1);
    (3) Meetings of the National Commissioners in original jurisdiction 
cases pursuant to 28 CFR 2.17(a);
    (4) Meetings of the entire Commission to determine original 
jurisdiction appeal cases pursuant to 28 CFR 2.27; and
    (5) Meetings of the National Appeals Board pursuant to 28 CFR 2.26.
    (6) Meetings of the Commission to conduct a hearing on the record in 
conjunction with applications for certificates of exemption under 
section 504(a) of the Labor-Management Reporting and Disclosure Act of 
1959, and section 411 of the Employee Retirement Income Security Act of 
1974 (28 CFR 4.1-17 and 28 CFR 4a.1-17).\1\
---------------------------------------------------------------------------

    \1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
---------------------------------------------------------------------------

    (d) Specifically excluded from the term meeting are:
    (1) Determination made through independent voting of the 
Commissioners without the joint deliberation of the number of 
Commissioners required to take such action, pursuant to Sec. 16.201;
    (2) Original jurisdiction cases determined by sequential vote 
pursuant to 28 CFR 2.17;
    (3) Cases determined by sequential vote pursuant to 28 CFR 2.24 and 
2.25;
    (4) National Appeals Board cases determined by sequential vote 
pursuant to 28 CFR 2.26;
    (5) Meetings of special committees of Commissioners not constituting 
a quorum of the Commission, which may be established by the Chairman to 
report and make recommendations to the Commission or the Chairman on any 
matter.
    (6) Determinations required or permitted by these regulations to 
open or close a meeting, or to withhold or disclose documents or 
information pertaining to a meeting.
    (e) All other terms used in this part shall be deemed to have the 
same meaning as identical terms used in chapter I, part 2 of this title.

[42 FR 14713, Mar. 16, 1977, as amended at 43 FR 4978, Feb. 7, 1978]



Sec. 16.201   Voting by the Commissioners without joint deliberation.

    (a) Whenever the Commission's Chairman so directs, any matter which 
(1) does not appear to require joint deliberation among the members of 
the Commission, or (2) by reason of its urgency, cannot be scheduled for 
consideration at a Commission meeting, may be disposed of by 
presentation of the

[[Page 304]]

matter separately to each of the members of the Commission. After 
consideration of the matter each Commission member shall report his vote 
to the Chairman.
    (b) Whenever any member of the Commission so requests, any matter 
presented to the Commissioners for disposition pursuant to paragraph (a) 
of this section shall be withdrawn and scheduled instead for 
consideration at a Commission meeting.
    (c) The provisions of Sec. 16.206(a) of these rules shall apply in 
the case of any Commission determination made pursuant to this section.



Sec. 16.202   Open meetings.

    (a) Every portion of every meeting of the Commission shall be open 
to public observation unless closed to the public pursuant to the 
provisions of Sec. 16.203 (Formal Procedure) or Sec. 16.205 (Informal 
Procedure).
    (b) The attendance of any member of the public is conditioned upon 
the orderly demeanor of such person during the conduct of Commission 
business. The public shall be permitted to observe and to take notes, 
but unless prior permission is granted by the Commission, shall not be 
permitted to record or photograph by means of any mechanical or 
electronic device any portion of meetings which are open to the public.
    (c) The Commission shall be responsible for arranging a suitable 
site for each open Commission meeting so that ample seating, visibility, 
and acoustics are provided to the public and ample security measures are 
employed for the protection of Commissioners and Staff. The Commission 
shall be responsible for recording or developing the minutes of 
Commission meetings.
    (d) Public notice of open meetings shall be given as prescribed in 
Sec. 16.204(a), and a record of votes kept pursuant to Sec. 16.206(a).



Sec. 16.203   Closed meetings--Formal procedure.

    (a) The Commission, by majority vote, may close to public 
observation any meeting or portion thereof, and withhold from the public 
announcement concerning such meeting any information, if public 
observation or the furnishing of such information is likely to:
    (1) Disclose matters:
    (i) Specifically authorized under criteria established by an 
executive order to be kept secret in the interests of national defense 
or foreign policy and
    (ii) In fact properly classified pursuant to such executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission or any agency of the Government of the United States;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552, or the Federal Rules of Criminal 
Procedure): Provided, That such statute or rule (i) requires that the 
matters be withheld in such a manner as to leave no discretion on the 
issue, or (ii) establishes particular criteria for withholding or refers 
to particular types of matters to be withheld, including exempted 
material under the Privacy Act of 1974 or the Commission's Alternate 
Means of Access under the Privacy Act of 1974, as set forth at 28 CFR 
16.85;
    (4) Disclose a trade secret or commercial or financial information 
obtained from any person, corporation, business, labor or pension 
organization, which is privileged or obtained upon a promise of 
confidentiality, including information concerning the financial 
condition or funding of labor or pension organizations, or the financial 
condition of any individual, in conjunction with applications for 
exemption under 29 U.S.C. 504 and 1111, and information concerning 
income, assets and liabilities of inmates, and persons on supervision;
    (5) Involve accusing any person of a crime or formally censuring any 
person;
    (6) Disclose information of a personal nature, where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose an investigatory record compiled for law enforcement 
purposes, or information derived from such a record, which describes the 
criminal history or associations of any person under the Commission's 
jurisdiction or which describes the involvement of any person in the 
commission of a crime,

[[Page 305]]

but only to the extent that the production of such records or 
information would:
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trail or an impartial 
adjudication;
    (iii) Constitute an unwarranted invasion of personal privacy;
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information, the premature disclosure of which would be 
likely to significantly frustrate implementation of proposed Commission 
action except where
    (i) The Commission has already publicly disclosed the content or 
nature of its proposed action or
    (ii) The Commission is required by law to make such disclosure on 
its own initiative prior to taking final Commission action on such 
proposal;
    (9) Specifically concern the Commission's issuance of subpoena or 
participation in a civil action or proceeding; or
    (10) Specifically concern the initiation, conduct, or disposition of 
a particular case of formal adjudication pursuant to the procedures in 5 
U.S.C. 554, or of any case involving a determination on the record after 
opportunity for a hearing. Included under the above terms are:
    (i) Record review hearings following opportunity for an in-person 
hearing pursuant to the procedures of 28 CFR 4.1 through 4.17 and 28 CFR 
4a.1 through 4a.17\1\ (governing applications for certificates of 
exemption under the Labor-Management Reporting and Disclosure Act of 
1959 and the Employee Retirement Income Security Act of 1974), and
---------------------------------------------------------------------------

    \1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
---------------------------------------------------------------------------

    (ii) The initiation, conduct, or disposition by the Commission of 
any matter pursuant to the procedures of 28 CFR 2.1 through 2.58 
(parole, release, supervision, and recommitment of prisoners, youth 
offenders, and juvenile delinquents).
    (b) Public interest provision. Notwithstanding the exemptions at 
paragraphs (a)(1) through (a)(10) of this section, the Commission may 
conduct a meeting or portion of a meeting in public when the Commission 
determines, in its discretion, that the public interest in an open 
meeting clearly outweighs the need for confidentiality.
    (c) Nonpublic matter in announcements. The Commission may delete 
from any announcement or notice required in these regulations 
information the disclosure of which would be likely to have any of the 
consequences described in paragraphs (a)(1) through (a)(10) of this 
section, including the name of any individual considered by the 
Commission in any case of formal or informal adjudication.
    (d) Voting and certification. (1) A separate recorded vote of the 
Commission shall be taken with respect to each meeting or portion 
thereof which is proposed to be closed, and with respect to any 
information which is proposed to be withheld pursuant to this section. 
Voting by proxy shall not be permitted. In the alternative, the 
Commission may, by a single majority vote, close to public observation a 
series of meetings, or portion(s) thereof or withhold information 
concerning such series of meetings, provided that:
    (i) Each meeting in such series involves the same particular 
matters, and
    (ii) Each meeting is scheduled to be held no more than thirty days 
after the initial meeting in the series.
    (2) Upon the request of any Commissioner, the Commission shall make 
a determination as to closure pursuant to this subsection if any person 
whose interests may be directly affected by a portion of a meeting 
requests the Commission to close such portion or portions to the public 
observation for any of the grounds specified in paragraph (a) (5), (6) 
or (7) of this section.
    (3) The determination to close any meeting to public observation 
pursuant

[[Page 306]]

to this section shall be made at least one week prior to the meeting or 
the first of a series of meetings as the case may be. If a majority of 
the Commissioners determines by recorded vote that agency business 
requires the meeting to take place at any earlier date, the closure 
determination and announcement thereof shall be made at the earliest 
practicable time. Within one day of any vote taken on whether to close a 
meeting under this section, the Commission shall make available to the 
public a written record reflecting the vote of each Commissioner on the 
question, including a full written explanation of its action in closing 
the meeting, portion(s) thereof, or series of meetings, together with a 
list of all persons expected to attend the meeting(s) or portion(s) 
thereof and their affiliation, subject to the provisions of paragraph 
(c) of this section.
    (4) For every meeting or series of meetings closed pursuant to this 
section, the General Counsel of the Parole Commission shall publicly 
certify that, in Counsel's opinion, the meeting may be closed to the 
public and shall state each relevant exemptive provision.



Sec. 16.204   Public notice.

    (a) Requirements. Every open meeting and meeting closed pursuant to 
Sec. 16.203 shall be preceded by a public announcement posted before the 
main entrance to the Chairman's Office at the Commission's headquarters, 
5550 Friendship Boulevard, Chevy Chase, Maryland 20815-7286, and, in the 
case of a meeting held elsewhere, in a prominent place at the location 
in which the meeting will be held. Such announcement shall be 
transmitted to the Federal Register for publication and, in addition, 
may be issued through the Department of Justice, Office of Public 
Affairs, as a press release, or by such other means as the Commission 
shall deem reasonable and appropriate. The announcement shall furnish:
    (1) A brief description of the subject matter to be discussed;
    (2) The date, place, and approximate time of the meeting;
    (3) Whether the meeting will be open or closed to public 
observation; and
    (4) The name and telephone number of the official designated to 
respond to requests for information concerning the meeting. See 
Sec. 16.205(d) for the notice requirement applicable to meetings closed 
pursuant to that section.
    (b) Time of notice. The announcement required by this section shall 
be released to the public at least one week prior to the meeting 
announced therein except where a majority of the members of the 
Commission determines by a recorded vote that Commission business 
requires earlier consideration. In the event of such a determination, 
the announcement shall be made at the earliest practicable time.
    (c) Amendments to notice. The time or place of a meeting may be 
changed following the announcement only if the Commission publicly 
announces such change at the earliest practicable time. The subject 
matter of a meeting, or determination of the Commission to open or close 
a meeting, or portion of a meeting, to the public may be changed 
following the announcement only if:
    (1) A majority of the entire membership of the Commission determines 
by a recorded vote that Commission business so requires and that no 
earlier announcement of the change was possible, and
    (2) The Commission publicly announces such change and the vote of 
each member upon such change at the earliest practicable time: Provided, 
That individual items which have been announced for Commission 
consideration at a closed meeting may be deleted without notice.

[42 FR 14713, Mar. 16, 1977 as amended by Order No. 960-81, 46 FR 52357, 
Oct. 27, 1981]



Sec. 16.205   Closed meetings--Informal procedures.

    (a) Finding. Based upon a review of the meetings of the U.S. Parole 
Commission since the effective date of the Parole Commission and 
Reorganization Act (May 14, 1976), the regulations issued pursuant 
thereto (28 CFR part 2) the experience of the U.S. Board of Parole, and 
the regulations pertaining to the Commission's authority under 29 U.S.C. 
504 and 29 U.S.C. 1111 (28 CFR parts 4 and 4a), the Commission finds 
that the majority of its meetings may properly be closed to the public 
pursuant to 5 U.S.C. 552 (d)(4) and (c)(10). The

[[Page 307]]

major part of normal Commission business lies in the adjudication of 
individual parole cases, all of which proceedings commence with an 
initial parole or revocation hearing and are determined on the record 
thereof.

Original jurisdiction cases are decided at bi-monthly meetings of the 
National Commissioners (28 CFR 2.17) and by the entire Commission in 
conjunction with each business meeting of the Commission (held at least 
quarterly) (28 CFR 2.27).

The National Appeals Board normally decides cases by sequential vote on 
a daily basis, but may meet from time to time for joint deliberations. 
In the period from October, 1975 through September, 1976, the National 
Appeals Board made 2,072 Appellate decisions.

Finally, over the last two years the Commission determined eleven cases 
under the Labor and Pension Acts, which are proceedings pursuant to 5 
U.S.C. 554. The only meetings of the Commission not of an adjudicative 
nature involving the most sensitive inquiry into the personal background 
and behavior of the individual concerned, or involving sensitive 
financial information concerning the parties before the Commission, are 
the normal business meetings of the Commission, which are held at least 
quarterly.
    (b) Meetings to which applicable. The following types of meetings 
may be closed in the event that a majority of the Commissioners present 
at the meeting, and authorized to act on behalf of the Commission, votes 
by recorded vote at the beginning of each meeting or portion thereof, to 
close the meeting or portions thereof:
    (1) Original jurisdiction initial and appellate case deliberations 
conducted pursuant to 28 CFR 2.17 and 2.27;
    (2) National Appeals Board deliberations pursuant to 28 CFR 2.26;
    (3) Meetings of the Commission to conduct a hearing on the record 
regarding applications for certificates of exemption pursuant to the 
Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 504, 
and the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1111 
(28 CFR 4.1-17 and 29 CFR 4a.1-17).\1\
---------------------------------------------------------------------------

    \1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
---------------------------------------------------------------------------

    (c) Written record of action to close meeting. In the case of a 
meeting or portion of a meeting closed pursuant to this section, the 
Commission shall make available to the public as soon as practicable:
    (1) A written record reflecting the vote of each member of the 
Commission to close the meeting; and
    (2) A certification by the Commission's General Counsel to the 
effect that in Counsel's opinion, the meeting may be closed to the 
public, which certification shall state each relevant exemptive 
provision.
    (d) Public notice. In the case of meetings closed pursuant to this 
section the Commission shall make a public announcement of the subject 
matter to be considered, and the date, place, and time of the meeting. 
The announcement described herein shall be released to the public at the 
earliest practicable time.



Sec. 16.206   Transcripts, minutes, and miscellaneous documents concerning Commission meetings.

    (a) In the case of any Commission meeting, whether open or closed, 
the Commission shall maintain and make available for public inspection a 
record of the final vote of each member on rules, statements of policy, 
and interpretations adopted by it: 18 U.S.C. 4203(d).
    (b) The Commission shall maintain a complete transcript or 
electronic recording adequate to record fully the proceedings of each 
meeting, or portion of a meeting, closed to the public pursuant to 
Sec. 16.203. In the case of a meeting, or portion of a meeting, closed 
to the public pursuant to Sec. 16.205 of these regulations, the 
Commission may maintain either the transcript or recording described 
above, or a set of minutes unless a recording is required by title 18 
U.S.C. 4208(f). The minutes required by this section shall fully and 
clearly describe all matters discussed and shall provide a full and 
accurate summary of any actions taken, and the

[[Page 308]]

reasons therefor, including a description of each of the views expressed 
on any item and the record of any rollcall vote (reflecting the vote of 
each Commissioner on the question). All documents considered in 
connection with any action shall be identified in such minutes.
    (c) The Commission shall retain a copy of every certification 
executed by the General Counsel's Office pursuant to these regulations, 
together with a statement from the presiding officer of the meeting, or 
portion of a meeting to which the certification applies, setting forth 
the time and place of the meeting, and the persons present.
    (d) Nothing herein shall affect any other provision in Commission 
procedures or regulations requiring the preparation and maintenance of a 
record of all official actions of the Commission.



Sec. 16.207   Public access to nonexempt transcripts and minutes of closed Commission meetings--Documents used at meetings--Record retention.

    (a) Public access to records. Within a reasonable time after any 
closed meeting, the Commission shall make available to the public, in 
the Commission's Public Reading Room located at 5550 Friendship 
Boulevard, Chevy Chase, Maryland 20815-7286, the transcript, electronic 
recording, or minutes of the discussion of any item on the agenda, or of 
any item of the testimony of any witness received at such meeting, 
maintained hereunder, except for such item or items of such discussion 
or testimony which contain information exempt under any provision of the 
Government in the Sunshine Act (Pub. L. 94-409), or of any amendment 
thereto. Copies of nonexempt transcripts, or minutes, or a transcription 
of such recording disclosing the identity of each speaker, shall be 
furnished to any person at the actual cost of duplication or 
transcription.
    (b) Access to documents identified or discussed in any Commission 
meeting, open or closed, shall be governed by Department of Justice 
regulations at this part 16, subparts C and D. The Commission reserves 
the right to invoke statutory exemptions to disclosure of such documents 
under 5 U.S.C. 552 and 552a, and applicable regulations. The exemptions 
provided in 5 U.S.C. 552b(c) shall apply to any request made pursuant to 
5 U.S.C. 552 or 552a to copy and inspect any transcripts, recordings or 
minutes prepared or maintained pursuant hereto.
    (c) Retention of records. The Commission shall maintain a complete 
verbatim copy of the transcript, or a complete copy of the minutes, or a 
complete electronic recording of each meeting, or portion of a meeting, 
closed to the public, for a period of at least two years after such 
meeting, or until one year after the conclusion of any Commission 
proceeding with respect to which the meeting or portion thereof was 
held, whichever occurs later.

[42 FR 14713, Mar. 16, 1977, as amended by Order No. 960-81, 46 FR 
52357, Oct. 27, 1981]



Sec. 16.208   Annual report.

    The Commission shall report annually to Congress regarding its 
compliance with Sunshine Act requirements, including a tabulation of the 
total number of meetings open to the public, the total number of 
meetings closed to the public, the reasons for closing such meetings, 
and a description of any litigation brought against the Commission under 
this section, including any costs assessed against the Commission in 
such litigation and whether or not paid.

     Appendix I to Part 16--Components of the Department of Justice

    Unless otherwise noted, the address for each component is: United 
States Department of Justice, 10th Street & Constitution Avenue, NW., 
Washington, DC 20530.

Office of the Attorney General
Office of the Deputy Attorney General
Office of the Associate Attorney General
Office of the Solicitor General
Office of Legal Counsel
Office of Legal Policy
Office of Legislative and Intergovernmental Affairs
Civil Division
Civil Rights Division
Criminal Division
Land and Natural Resources Division
Tax Division
Office of Justice Assistance, Research, and Statistics, United States 
Department of Justice, 633 Indiana Avenue, NW., Washington, DC 20531
Justice Management Division

[[Page 309]]

Bureau of Prisons, United States Department of Justice, HOLC Building, 
320 First Street., NW., Washington, DC 20534
Community Relations Service, United States Department of Justice, 5550 
Friendship Boulevard, Chevy Chase, MD 20815
Drug Enforcement Administration, Eye Street Building, 1405 Eye Street, 
NW., Washington, DC 20005
Executive Office for Immigration Review, United States Department of 
Justice, 5203 Leesburg Pike, Falls Church, VA 22041
Executive Office for United States Attorneys
Executive Office for United States Trustees, United States Department of 
Justice, HOLC Building, 320 First Street, NW., Washington, DC 20534
Federal Bureau of Investigation, 9th St. & Pennsylvania Ave., NW., 
Washington, DC 20535 [for field offices, consult the list of FBI field 
offices in the United States Government Manual]
Federal Prison Industries, Inc., HOLC Building, 320 First Street, NW., 
Washington, DC 20534
Foreign Claims Settlement Commission, Vanguard Building, 1111 20th 
Street, NW., Washington, DC 20579
Immigration and Naturalization Service, 425 Eye Street, NW., Washington, 
DC 20536 [for district offices consult the list of INS district offices 
in the United States Government Manual]
Office of Intelligence Policy and Review
Office of the Pardon Attorney, United States Department of Justice, Park 
Place Building, 5550 Friendship Blvd., Chevy Chase, MD 20815
Office of Professional Responsibility
Office of Public Affairs
United States Marshals Service, One Tysons Corner Center, McLean, VA 
22102
United States National Central Bureau--Interpol
United States Parole Commission, Park Place Building, 5550 Friendship 
Blvd., Chevy Chase, MD 20815

                              Field Offices

    Antitrust Division:

Richard B. Russell Building, 75 Spring Street, SW., Suite 1394, Atlanta, 
Georgia 30303, (404) 331-7100
John C. Kluczynski Building, 230 South Dearborn Street, Room 3820, 
Chicago, Illinois 60604, (312) 353-7530
995 Celebrezze Federal Building, 1240 East 9th Street, Cleveland, Ohio 
44199-2089, (216) 522-4070
Earle Cabell Federal Building, 1100 Commerce Street, Room 8C6, Dallas, 
Texas 75242, (214) 767-8051
26 Federal Plaza, Room 3630, New York, New York 10278-0096, (212) 264-
0390
11400 U.S. Courthouse, 601 Market Street, Philadelphia, Pennsylvania 
19106, (215) 597-7405
450 Golden Gate Avenue, Box 36046, San Francisco, California 94102, 
(415) 556-6300

[Order No. 1055-84, 49 FR 12263, Mar. 29, 1984; Order 1215-87, 52 FR 
34214, Sept. 10, 1987]



PART 17--REGULATIONS IMPLEMENTING EXECUTIVE ORDER 12356, ``NATIONAL SECURITY INFORMATION''--Table of Contents




                      Subpart A--General Provisions

Sec.
17.1  Purpose.
17.2  Authority.
17.3  Applicability.
17.4  Application to non-Executive Branch personnel.
17.5  Atomic Energy Act.

                   Subpart B--Security Classification

17.6  Policy.
17.7  Classification levels.
17.8  Original classification authority.
17.9  Propriety of classification actions.
17.10  Challenges to classification.
17.11  Accounting for classification actions.
17.12  Identification of classification authority.
17.13  Derivative classification.
17.14  Positive judgment requirement.
17.15  Classification in context of related information.
17.16  Classification categories.
17.17  Duration of classification.
17.18  Classification of Foreign Government Information.
17.19  Prohibitions.
17.20  Effect of open publication.
17.21  Classification of previously declassified information.
17.22  Requirement for issuance of classification guides.
17.23  Waiver of classification guide requirements.
17.24  Classification guide components.
17.25  Review of classification guides.
17.26  Emergency classification authority.
17.27  Emergency action.
17.28  Raising to a higher level of classification.
17.29  Classification of previously unclassified information.
17.30  Notification.

               Subpart C--Declassification and Downgrading

17.31  Policy.
17.32  Authority.
17.33  Declassification by the Director of the Information Security 
          Oversight Office.

[[Page 310]]

17.34  Systematic review for declassification.
17.35  Systematic review responsibilities.
17.36  Systematic review procedures.
17.37  Mandatory review for declassification.
17.38  Mandatory review for Presidential papers.
17.39  Mandatory review for Foreign Government Information.
17.40  Submission of requests for mandatory review.
17.41  Information classified by agencies other than the Department 
          subject to mandatory review.
17.42  Mandatory review appeal.
17.43  Fees.
17.44  Confirmation of existence of classified information.
17.45  Material officially transferred.
17.46  Material not officially transferred.
17.47  Information transferred for storage or retirement.
17.48  Downgrading upon reconsideration.
17.49  Notification of changes to a lower classification or 
          declassification.
17.50  Foreign relations series.

                  Subpart D--Identification and Marking

17.51  Policy.
17.52  Marking document (General).
17.53  Marking the document with the identity of classifier.
17.54  Overall and page marking.
17.55  Marking components of documents.
17.56  Paragraph or portion marking.
17.57  Subjects and titles of documents.
17.58  Files, folders or groups of documents.
17.59  Transmittal documents.
17.60  Messages.
17.61  Translations.
17.62  Markings on special categories of material.
17.63  Charts, maps and drawings.
17.64  Photographs, films and recordings.
17.65  Applying derivative declassification markings.
17.66  Examples of commonly used markings.
17.67  Upgrading.
17.68  Limited use of posted notice for large quantities of material.
17.69  Additional warning notices.
17.70  Dissemination and reproduction notice.

                   Subpart E--Safekeeping and Storage

17.71  Policy.
17.72  Standards for storage equipment.
17.73  Storage of classified material.
17.74  Procurement and phase-in of new storage equipment.
17.75  Designations of security containers.
17.76  Changing combinations to security containers.
17.77  Equipment out of service.
17.78  Classification of combinations.
17.79  Recording storage facility data.
17.80  Care during working hours.
17.81  Care after working hours.
17.82  Administrative aids for safeguarding classified material.
17.83  Telephone or telecommunication conversations.
17.84  Security of meetings and conferences.

                Subpart F--Foreign Government Information

17.85  Identification of documents.
17.86  Classification.
17.87  Presumption of damage by unauthorized disclosure.
17.88  Duration of classification.
17.89  Systematic review.
17.90  Mandatory review.
17.91  Equivalent United States classification designations.
17.92  Marking other foreign government documents.
17.93  Marking of Foreign Government Information in Department 
          documents.
17.94  Other Foreign Government Information.

          Subpart G--Access, Dissemination, and Accountability

17.95  Policy.
17.96  Access by persons outside the Executive Branch.
17.97  Access by foreign nationals, foreign governments, international 
          organizations, and immigrant aliens.
17.98  Procedures for requesting a security clearance for a Department 
          employee.
17.99  Other access situations.
17.100  Dissemination.
17.101  Transmission of Top Secret information.
17.102  Transmission of Secret and Confidential information.
17.103  Transmission of classified information to foreign governments.
17.104  Envelopes or containers.
17.105  Addressing.
17.106  Receipt systems.
17.107  Transmission exceptions.
17.108  General courier restrictions.
17.109  Restrictions on hand-carrying classified information aboard 
          commercial passenger aircraft.
17.110  Procedures for hand-carrying classified information on 
          commercial passenger aircraft.
17.111  Accountability of Top Secret information.
17.112  Inventories.
17.113  Accountability of Secret and Confidential information.
17.114  Accountability of reproduced documents.
17.115  Working papers.

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      Subpart H--Disposal and Destruction of Classified Information

17.116  Policy.
17.117  Record material.
17.118  Nonrecord material.
17.119  Methods of destruction.
17.120  Records of destruction.

                   Subpart I--Special Access Programs

17.121  Policy.
17.122  Authority for establishing special access programs.
17.123  Requesting the establishment or renewal of special access 
          programs.
17.124  Information required in requests for special access programs.
17.125  Identification markings and accounting for special access 
          programs.

       Subpart J--Executive Branch Oversight and Policy Direction

17.126  National Security Council.
17.127  Administrator of General Services.
17.128  Information Security Oversight Office.
17.129  Department representatives to interagency meetings.
17.130  Coordination with the Information Security Oversight Office.

       Subpart K--Department of Justice Security Responsibilities

17.131  General responsibilities and duties.
17.132  Loss or possible compromise of classified information.
17.133  The Attorney General.
17.134  Assistant Attorney General for Administration.
17.135  Department Review Committee.
17.136  The Office of Professional Responsibility.
17.137  The Department Security Officer.
17.138  Security education.
17.139  Oversight.
17.140  Heads of Offices, Boards, Divisions and Bureaus.
17.141  Security Programs Managers.
17.142  Security Officers.
17.143  Emergency planning.
17.144  Employees.

       Subpart L--Security Violations and Administrative Sanctions

17.145  Violations subject to sanctions.
17.146  Reporting security violations.
17.147  Corrective action.
17.148  Administrative discrepancies.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; E.O. 12356.

    Source: Order No. 1112-85, 50 FR 46388, Nov. 7, 1985, unless 
otherwise noted.



                      Subpart A--General Provisions



Sec. 17.1  Purpose.

    The purpose of this regulation is to insure that information within 
the Department of Justice, herein referred to as the Department, 
relating to the national security (as used hereinafter, a collective 
term which means the national defense and foreign relations of the 
United States) is protected, pursuant to the provisions of Executive 
Order 12356 and its implementing directive. (See Sec. 17.2 (a) and (b)). 
This regulation prescribes: a progressive system for classification, 
downgrading and declassification; information safeguarding policies and 
procedures; a monitoring system to insure the effectiveness of the 
National Security Information Program throughout the Department; and a 
system for reporting and investigating security violations and sanctions 
for such violations. The provisions of this regulation become effective 
upon approval by the Attorney General.



Sec. 17.2  Authority.

    (a) This regulation is issued in compliance with, and as a 
supplement to, the provisions of:
    (1) 28 U.S.C. 503 and 509;
    (2) 5 U.S.C. 301;
    (3) Executive Order No. 12356 entitled, ``National Security 
Information,'' dated April 2, 1982.
    (4) Director of Central Intelligence Directive Number 1/14 entitled, 
``Minimum Personnel Security Standards and Procedures Governing 
Eligibility for Access to Sensitive Compartmented Information.''
    (5) The Information Security Oversight Office Directive No. 1 
entitled, ``National Security Information,'' dated June 23, 1982.
    (6) 28 CFR 0.75(p), which outlines the security policy functions of 
the Justice Management Division (Security Staff).
    (7) Department Order 2600.2A entitled, ``Security Programs and 
Responsibilities.''
    (b) List of references. (1) Department Order 2620.4 entitled, 
``Physical Security Manual for Safeguarding Classified National Security 
Information (E.O. 11652).''

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    (2) Department Order 2620.6 entitled, ``Procedures for Requesting a 
Department of Justice Security Clearance for Non-Contractor Personnel 
Outside the Executive Branch.''
    (3) Department Order 2600.3A entitled, ``Requirements for 
Safeguarding Classified Information and Material Released to Industry in 
Connection with Contracts or Grants.''
    (4) Department Order 2660.1A entitled, ``Department of Justice 
Special Security Center (Room 6744--Main Justice).''
    (5) Offices, Boards and Divisions (OBD) Order 2710.3A entitled, 
``Files Maintenance and Records Disposition.''



Sec. 17.3  Applicability.

    This regulation governs the Department's National Security 
Information Program and takes precedence over all Department 
publications affecting that program. It establishes, for uniform 
application throughout the Department, the policies, standards, criteria 
and procedures for the classification, downgrading, declassification and 
safeguarding of National Security Information originated, produced or 
handled by, or in the custody of, the Department.



Sec. 17.4  Application to non-Executive Branch personnel.

    Except as otherwise provided herein (see Sec. 17.96), the provisions 
of this regulation apply to non-contractor personnel outside of the 
Executive Branch and to contractor personnel or employees who are 
entrusted with National Security Information originated within or in the 
custody of the Department. Clearance procedures for the aforementioned 
personnel are contained in Department Orders 2620.6 and 2600.3A, 
respectively. Procedures for clearing Department personnel are contained 
in Sec. 17.98 of this regulation.



Sec. 17.5  Atomic Energy Act.

    Nothing in this regulation supersedes any requirements made by or 
under the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011-2394. 
``Restricted Data'' shall be handled, protected, classified, downgraded 
and declassified in conformity with the provisions of the Atomic Energy 
Act of 1954, as amended, 42 U.S.C. 2161-2166, and the regulations issued 
pursuant thereto.



                   Subpart B--Security Classification



Sec. 17.6  Policy.

    (a) Except as provided in Sec. 17.5, Executive Order 12356, as 
implemented by this regulation, provides the only basis for classifying 
information.
    (b) Unnecessary classification and higher than necessary 
classification shall be scrupulously avoided.
    (c) Classification shall be continued no longer than is necessary 
for the protection of national security.
    (d) Information may not be classified except for the purposes of 
preventing damage to the national security.



Sec. 17.7  Classification levels.

    (a) General. Official information which requires protection against 
unauthorized disclosure in the interests of national security shall be 
classified in one of three levels, namely, ``Top Secret,'' ``Secret'' or 
``Confidential.'' No other terms shall be used to identify official 
information as requiring protection in the interests of national 
security, except as otherwise expressly provided by statute.
    (b) Top Secret. ``Top Secret'' is the designation which shall be 
applied to information, the unauthorized disclosure of which reasonably 
could be expected to cause exceptionally grave damage to the national 
security. Examples of ``exceptionally grave damage'' could include armed 
hostilities against the United States or its allies; disruption of 
foreign relations vitally affecting the national security; the 
compromise of vital national defense plans or complex cryptologic and 
communications intelligence systems; the revelation of extremely 
sensitive intelligence operations; and the disclosure of scientific or 
technological developments vital to national security. This 
classification shall be used with restraint.
    (c) Secret. ``Secret'' is the designation which shall be applied to 
information, the unauthorized disclosure of which reasonably could be 
expected to cause serious damage to the national security. Examples of 
``serious damage''

[[Page 313]]

could include disruption of foreign relations affecting the national 
security; impairment of a program or policy directly related to the 
national security; revelation of military plans or intelligence 
operations; and compromise of scientific or technological developments 
relating to national security.
    (d) Confidential. ``Confidential'' is the designation which shall be 
applied to information, the unauthorized disclosure of which reasonably 
could be expected to cause damage to the national security. Examples of 
damage could include the compromise of information which indicates 
strength of armed forces in the United States and overseas areas; 
disclosure of technical information used for intelligence operations; a 
written inspection report of classified areas; revelation of performance 
characteristics, test data, design, and production data on intelligence 
gathering equipment.



Sec. 17.8  Original classification authority.

    Authority for original classification of information as Top Secret, 
Secret or Confidential may be exercised only by the Attorney General and 
by officials to whom such authority is specifically delegated in 
accordance with and subject to the restrictions of this section. In the 
absence of an authorized classifier, the person designated to act in his 
or her absence may exercise the classifier's authority.
    (a) Top Secret. Only the Attorney General or the Assistant Attorney 
General for Administration may delegate original Top Secret 
classification authority. Such delegation may only be made to principal 
subordinate officials who are determined to have frequent need to 
exercise such authority. The delegation of authority must specify 
whether the Top Secret classification authority is authorized to 
delegate original Secret and Confidential classification authority.
    (b) Secret and Confidential. Only the Attorney General, the 
Assistant Attorney General for Administration and officials with 
delegated original Top Secret classification authority who are 
specifically authorized in writing to do so may delegate original Secret 
and Confidential classification authority to subordinate officials whom 
they determine to have frequent need to exercise such authority.
    (c) A request for delegation of original classification authority 
pursuant to section 1.2 of Executive Order 12356 original classification 
authority shall be in writing. The Department Security Officer shall 
maintain a current listing of officials delegated original 
classification authority by name, position, or other identifier. If 
possible, the listing shall be unclassified.
    (d) Except for the Attorney General and the Assistant Attorney 
General for Administration, officials to whom original classification 
authority is delegated may not, under any circumstances, redelegate such 
authority. However, those officials so designated by the Attorney 
General may delegate a lesser level of classification authority.
    (e) Annual reviews, and special review as requested by the 
Department Security Officer, shall be made by Security Programs Managers 
to ensure that those to whom such authority has been delegated have 
demonstrated a continuing need to exercise it. the annual reviews are to 
be conducted at the end of each calendar year. Findings of this review 
are to be forwarded to the Department Security Officer.



Sec. 17.9  Propriety of classification actions.

    In accordance with Sec. 17.144, all personnel assigning 
classifications to information within the Department are accountable for 
the propriety of such classifications, whether in the exercise of 
original classification authority or in the determination and 
application of classifications assigned in source documents or 
classification guides (i.e., derivative classification), and are 
required to maintain adequate records to support their classification 
actions.



Sec. 17.10  Challenges to classification.

    (a) Improper classification actions shall be reported initially by 
the holder of the information to the appropriate Security Programs 
Manager within the Department. The Security Programs Manager must report 
each case of improper classification within his/her

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area of concern to the Department Security Officer. Cases of improper 
classification, if willful and knowing, must then be reported to the 
Director of the Information Security Oversight Office.
    (b) If holders of classified information have reason to believe that 
the information is classified improperly or unnecessarily or that an 
overly restrictive period for continued classification has been 
assigned, they are encouraged to challenge such classification with 
their Security Programs Manager or the classifier of the information, 
with a view to bringing about corrections.



Sec. 17.11  Accounting for classification actions.

    The Department Security Officer shall establish, in coordination 
with the Information Security Oversight Office, a system for maintaining 
information on classification actions within the Department.



Sec. 17.12  Identification of classification authority.

    Information classified under the provisions of this regulation shall 
indicate on its face, in the case of documents, or by notice or other 
means, in the case of material, the identity of the classifier. Such 
identification shall be shown on the ``classified by'' line. In those 
cases where the personal identity of the authorized classifier would be 
classifiable, an alternate identification method may be used provided it 
is approved by the Department Security Officer.



Sec. 17.13  Derivative classification.

    (a) Information extracted or derived from a classified source 
document or classification guide and used in a Department originated 
document will be classified, or not classified, as the case may be, in 
accordance with the classification guide or source document. The overall 
marking and paragraph marking of the source document should supply 
adequate classification guidance to the person making the extraction.
    (b) If a person who applies derivative classification markings 
believes that the paraphrasing, restating, or summarizing of classified 
information has changed the level of or removed the basis for 
classification, that person must consult for a determination an 
appropriate official of the originating agency or office of origin who 
has the authority to upgrade, downgrade, or declassify the information.
    (c) Persons who only reproduce, extract, or summarize classified 
information, or who only apply classification markings derived from 
source material or as directed by a classification guide, need not 
possess original classification authority.
    (d) Persons who apply derivative classification markings shall:
    (1) Observe and respect original classification decisions; and
    (2) Carry forward to any newly created documents any assigned 
authorized markings. The declassification date or event that provides 
the longest period of classification shall be used for documents 
classified on the basis of multiple sources.
    (e) If paragraph markings are lacking, and when no classification 
guidance is included in the source document and no reference is made to 
an applicable classification guide which is available for use by the 
person making the extraction, the extracted or derived information will 
be classified in accordance with guidance specifically sought and 
received from the original classifier of the source material. If such 
guidance cannot be obtained, the information or material will be given 
the classification which corresponds to the overall marking of the 
source document.



Sec. 17.14  Positive judgment requirement.

    Classification is a positive judgment, i.e., there must be a 
reasonable basis for classification. All principles and criteria within 
this subpart must be considered before classification determination is 
made or a classification marking is applied. If there is reasonable 
doubt about which classification designation is appropriate, the 
information will be safeguarded at the higher level of classification 
until a determination, which shall be made in 30 days, is made by the 
original classification authority. If there is reasonable doubt about 
whether the information should be classified at all, it shall be

[[Page 315]]

safeguarded as if it were ``Confidential'' information pending the 
determination about its classification which shall be made by the 
original classification authority within 30 days.



Sec. 17.15  Classification in context of related information.

    Certain information which would otherwise be unclassified may 
require classification when combined or associated with other classified 
or unclassified information, including that which the classifier knows 
already has been officially released into the public domain.



Sec. 17.16  Classification categories.

    (a) A determination to classify may be made only if the information 
concerns one or more of the categories in paragraph (b) of this section 
and if the unauthorized disclosure of the information reasonably could 
be expected to cause damage to the national security.
    (b) Information must be considered for classification if it 
concerns:
    (1) Military plans, weapons, or operations;
    (2) The vulnerabilities or capabilities of systems, installations, 
projects, or plans relating to the national security;
    (3) Foreign Government Information;
    (4) Intelligence activities (including special activities), sources 
or methods;
    (5) Foreign relations or foreign activities of the United States;
    (6) Scientific, technological, or economic matters relating to the 
national security;
    (7) U.S. Government programs for safeguarding nuclear materials or 
facilities;
    (8) Cryptology;
    (9) A confidential source; or
    (10) Other categories of information which are related to national 
security and which require protection against unauthorized disclosure as 
determined by the President by a person designated by the President or 
by the Attorney General. Requests for any such additional category of 
information shall be forwarded through the Department Security Officer 
and the Assistant Attorney General for Administration to the Attorney 
General for approval. Any additional categories of information approved 
by the Attorney General must be reported promptly to the Director of the 
Information Security Oversight Office.



Sec. 17.17  Duration of classification.

    (a) Information shall be classified as long as required by national 
security considerations. When it can be determined, a specific date or 
event for declassification shall be set by the original classification 
authority at the time the information is originally classified.
    (b) Automatic declassification determinations under predecessor 
orders shall remain valid unless the classification is extended by an 
authorized official who has classification authority over the 
information. Any decision to extend an automatic declassification shall 
be made with respect to individual documents or categories of 
information. The Department is responsible for notifying holders of the 
information of such extensions. Any decision to extend this 
classification on other than a document-by-document basis shall be 
reported to the Department Security Officer.
    (c) Information marked for declassification review under predecessor 
orders shall remain classified until reviewed for declassification under 
the provisions of this regulation.



Sec. 17.18  Classification of Foreign Government Information.

    (a) Unauthorized disclosure of Foreign Government Information or the 
identity of a confidential foreign source is presumed to cause damage to 
the national security and, accordingly, such information shall normally 
be assigned a classification of at least ``Confidential.''
    (b) If the fact that information is Foreign Government Information 
must be concealed, a marking shall not be used and the document shall be 
marked as if it were wholly of United States origin.



Sec. 17.19  Prohibitions.

    (a) In no case shall information be classified in order to conceal 
violations of law, inefficiency, or administrative error; to prevent 
embarrassment to a person, organization or agency; or to restrain 
competition. Information may be classified, notwithstanding that it

[[Page 316]]

falls within the otherwise prohibited categories of this subsection, if 
disclosure would result in damage to the national security as set forth 
in Sec. 17.7.
    (b) Classification may not be used to prevent or delay the release 
of information that does not require protection in the interest of 
national security.
    (c) Basic scientific research information not clearly related to the 
national security may not be classified.
    (d) Information may not be classified unless it is owned by, 
produced by or for, or is under the control of the U.S. government. This 
prohibition does not affect the provisions of chapter 17 of title 35 
U.S. Code.
    (e) References to classified documents, when such references do not 
disclose classified information, may not be classified or used as a 
basis for classification.
    (f) Information may be classified or reclassified after receipt of a 
request for it under the Freedom of Information Act or the Mandatory 
Review provisions of this regulation (subpart C) if such classification 
is consistent with this regulation and is authorized by the Attorney 
General, the Deputy Attorney General, the Assistant Attorney General for 
Administration or an official with Top Secret classification authority. 
Classification authority under this provision shall be exercised 
personally, on a document-by-document basis.
    (g) Markings other than ``Top Secret,'' ``Secret,'' or 
``Confidential,'' such as ``For Official Use Only,'' ``Limited Official 
Use'' or ``Eyes Only,'' shall not be used to identify National Security 
Information. No other term or phrase shall be used in conjunction with 
these markings, such as ``Secret Sensitive'' or ``Agency Confidential,'' 
to identify National Security Information. The terms ``Top Secret,'' 
``Secret,'' and ``Confidential'' should not be used to identify 
nonclassified Executive Branch information.



Sec. 17.20  Effect of open publication.

    Appearance in the public domain of information currently classified 
or being considered for classification does not preclude initial or 
continued classification. However, such disclosures require reevaluation 
of the information to determine whether the publication has been 
compromised to the degree that downgrading or declassification is 
required. Similar consideration must be given to related items of 
information in all programs, projects, cases or items incorporating or 
pertaining to the compromised items of information. Holders should 
continue classification until advised to the contrary by a competent 
Government authority.



Sec. 17.21  Classification of previously declassified information.

    (a) Declassified information, once communicated as such to a member 
of the public, may be reclassified only when an authorized official 
determines in writing that:
    (1) The information requires protection in the interest of national 
security; and
    (2) The information may be reasonably retrieved either voluntarily 
or by litigation from the persons not approved for access.
    (b) In addition, before reclassifying the information, the 
authorized official must consider:
    (1) The elapsed time following disclosure;
    (2) The nature and extent of the disclosure;
    (3) The ability to bring the fact of reclassification to the 
attention of persons to whom the information was disclosed; and
    (4) The ability to prevent further disclosure.
    (c) All reclassifications of information previously declassified and 
disclosed must be reported promptly to the Department Security Officer. 
This information must then be reported by the Department Security 
Officer to the Director of the Information Security Oversight Office.



Sec. 17.22  Requirement for issuance of classification guides.

    (a) Executive Order 12356 requires that classification guides be 
prepared to facilitate the proper and uniform derivative classification 
of information by those heads of an Office, Board, Division or Bureau 
having original classification authority. Such guides shall be

[[Page 317]]

issued based upon classification determinations made by appropriate 
classification authorities in coordination with the Department Security 
Officer.
    (b) Each classification guide must be approved personally and in 
writing by the Assistant Attorney General for Administration or an 
official who:
    (1) Has program or supervisory responsibility over the information; 
and
    (2) Is authorized to classify information originally at the highest 
level of classification contained in the guide.



Sec. 17.23  Waiver of classification guide requirements.

    (a) The Attorney General may for good cause grant and revoke waivers 
for classification guides for specified classes of documents or 
information. Any waivers granted shall be reported through the 
Department Security Officer to the Director of the Information Security 
Oversight Office.
    (b) The decision to waive the requirement to issue classification 
guides will be based, at a minimum, on an evaluation of the following 
factors:
    (1) The ability to segregate the specified classes of information;
    (2) The impracticality of producing the guide because of the nature 
of the information;
    (3) The anticipated lack of usage of the guide as a basis for 
derivative classification; and
    (4) The availability of alternative sources for classifying the 
information in a uniform manner.



Sec. 17.24  Classification guide components.

    Classification guides shall:
    (a) Identify the information elements to be protected, using 
categorization and subcategorization to the extent necessary to ensure 
that the information involved can be readily and uniformly identified.
    (b) State which of the classification designations, i.e., Top 
Secret, Secret, or Confidential apply to the identified information.
    (c) State the declassification instructions for each element or 
category of information in terms of a period of time, future event, or a 
notation that the information shall not be automatically declassified 
without the approval of the originating agency.



Sec. 17.25  Review of classification guides.

    Classification guides shall be reviewed for currency and accuracy 
not less than once every two years. If no changes are made, the 
originator or his representative shall so annotate the record copy and 
show the date of the review. A listing of all Department classification 
guides in use shall be maintained by the Department Security Officer.



Sec. 17.26  Emergency classification authority.

    (a) When an employee, contractor, licensee or grantee not authorized 
to classify National Security Information within the Department 
originates or develops information which requires immediate 
classification and safeguarding and no authorized classifier is 
available, that person shall:
    (1) Safeguard the information in the manner prescribed for the 
intended classification.
    (2) Mark the information (or cover sheet if applicable) with the 
appropriate classification.
    (3) Transmit the information within five working days to the 
organization that has appropriate subject matter interest and 
classification authority. If it is not clear which organization has 
classification responsibility for this information, it shall be sent to 
the Department Security Officer. The Department Security Officer shall 
determine the organization having primary subject matter interest and 
forward the information with appropriate recommendations to that 
organization for a classification determination.
    (b) When designating information as classified with such security 
classification markings, the requirements pertaining to overall 
classification markings contained in this regulation shall be followed.
    (c) The organization with classification authority shall decide 
within 30 days whether to classify this information.



Sec. 17.27  Emergency action.

    If an emergency requires immediate communication of information 
believed

[[Page 318]]

to require classification, such information may be transmitted after 
taking the action prescribed in Sec. 17.26. Care shall be taken that the 
security clearance of the person to whom the classified material or 
information is being transmitted is correspondent to or higher than the 
initial classification, in accordance with the provisions of subpart G 
of this regulation. Additionally, the means of transmission shall be 
commensurate with the level of the initial classification, as prescribed 
in subpart G.



Sec. 17.28  Raising to a higher level of classification.

    The upgrading of classified information to a higher level than 
previously determined, by officials with appropriate authority, shall be 
followed by prompt notification to all known holders of the information.



Sec. 17.29  Classification of previously unclassified information.

    Unclassified information, once communicated as such, may be 
classified only when a classifying authority satisfies the requirements 
described for upgrading in Sec. 17.28 and determines that control of the 
information has not been lost by public dissemination or access.



Sec. 17.30  Notification.

    Prompt notification of all upgrading and unscheduled downgrading 
actions shall be provided to all known holders of the information.



               Subpart C--Declassification and Downgrading



Sec. 17.31  Policy.

    Information shall be declassified or downgraded as soon as national 
security considerations permit. The Department shall coordinate its 
review of classified information with other agencies that have a direct 
interest in the subject matter. Information that continues to meet the 
classification requirements prescribed by Sec. 17.16 despite the passage 
of time will continue to be protected in accordance with this 
regulation.



Sec. 17.32  Authority.

    (a) Information shall be declassified or downgraded by the official 
who authorized the original classification, if that official is still 
serving in the same position; the originator's successor; a supervisory 
official of either; or officials delegated such authority in writing by 
the Attorney General or the Assistant Attorney General for 
Administration.
    (b) The Department Security Officer shall ensure that a current 
listing of officials delegated declassification authority as prescribed 
in paragraph (a) of this section is maintained. If possible, this 
listing will be unclassified.



Sec. 17.33  Declassification by the Director of the Information Security Oversight Office.

    If the Director of the Information Security Oversight Office 
determines that Department information is classified in violation of 
Executive Order 12356, the Director may require the information to be 
declassified by the Department. Any such decision by the Director may be 
appealed to the National Security Council, through the Department Review 
Committee. The information shall remain classified until the appeal is 
decided.



Sec. 17.34  Systematic review for declassification.

    Executive Order 12356 requires the Archivist of the United States, 
in accordance with established procedures, to conduct systematic reviews 
for declassification of classified information accessioned into the 
National Archives and classified Presidential papers and records under 
control of the Archivist.



Sec. 17.35  Systematic review responsibilities.

    (a) The Attorney General shall:
    (1) Issue guidelines to assist the Archivist of the United States 
for systematic declassification review and, if applicable, downgrading 
of classified information originated by the Department. These guidelines 
shall be developed in consultation with the Archivist and the Director 
of the Information Security Oversight Office;

[[Page 319]]

    (2) Designate experienced personnel to provide timely assistance to 
the Archivist in the systematic review process; and
    (3) Review and update guidelines for systematic declassification 
review and downgrading at least every five years unless earlier review 
is requested by the Archivist.
    (b) The Attorney General may issue, in consultation with the 
Archivist of the United States and the Director of the Information 
Security Oversight Office, specific systematic declassification review 
guidelines for Foreign Government Information over which the Attorney 
General has declassification authority. These guidelines shall be 
reviewed and updated every five years unless earlier review is requested 
by the Archivist.
    (c) The Department may conduct internal systematic review programs 
for classified information originated by its organizations contained in 
records determined by the Archivist of the United States to be 
permanently valuable but that have not been accessioned into the 
National Archives of the United States.



Sec. 17.36  Systematic review procedures.

    (a) Only permanently valuable records shall be subjected to 
systematic review for declassification. Classified nonpermanent records 
that are scheduled to be retained for more than 30 years need not be 
systematically reviewed, but shall be reviewed for declassification upon 
request.
    (b) The Attorney General, through the Department Security Officer, 
shall require that all classified records 30 years old or older, whether 
held in storage areas under Department control or in Federal Records 
Centers, be surveyed to identify those that require scheduling for 
future disposition. The Security Programs Managers and Records 
Management Officials shall coordinate this effort with the Department 
Security Officer and Department Records Management Officials, 
respectively.
    (c) All Department information accessioned into the National 
Archives and Records Service that is permanently valuable and more than 
30 years old is to be systematically reviewed for declassification by 
the Archivist of the United States (using the guidelines issued pursuant 
to Sec. 17.35(a)) with the assistance of the Department's personnel 
designated for that purpose pursuant to Sec. 17.35.
    (d) The Security Programs Managers shall receive from the Archivist 
of the United States information which requires the originating agency's 
determination for declassification or information which the Department's 
systematic review guidelines state shall not be automatically 
declassified after 30 years without review by the Department. Security 
Programs Managers within the Office, Board, Division or Bureau with 
primary jurisdiction over the classified information either received 
from the Archivist or in the Office, Board, Division or Bureau's 
custody, over 30 years old, shall proceed as follows:
    (1) Classified information over which the Office, Board, Division or 
Bureau exercises exclusive or final original classification authority 
and which, in accordance with the systematic review guidelines developed 
under this section, is to be declassified, shall be marked and handled 
as such.
    (2) Classified information over which the Office, Board, Division or 
Bureau exercises exclusive or final original classification authority, 
and which the head of such organization recommends should be kept 
protected, shall be identified under appropriate category headings.



Sec. 17.37  Mandatory review for declassification.

    (a) Upon request by a U.S. citizen, a permanent resident alien, a 
Government agency or a State or local government to declassify and 
release information classified under the provisions of Executive Order 
12356, such information shall be subject to mandatory review by the 
originating Office, Board, Division or Bureau for possible 
declassification in accordance with the procedures of this subpart.
    (b) Mandatory declassification review requests for cryptologic 
information and information concerning intelligence activities 
(including special activities) or intelligence sources or methods shall 
be processed solely in

[[Page 320]]

accordance with special procedures issued by the Secretary of Defense or 
the Director of Central Intelligence.
    (c) The Department, upon conducting a mandatory review for 
declassification, shall declassify information no longer requiring 
protection under this regulation. This information will be released 
unless withholding is otherwise authorized under applicable law.



Sec. 17.38  Mandatory review for Presidential papers.

    (a) Information which was originated by the President, the White 
House Staff, by committees, commissions or boards appointed by the 
President, or others specifically providing advice and counsel to a 
President or acting on behalf of the President is exempted from 
mandatory review for declassification under the provisions of 
Sec. 17.37.
    (b) Information described in Sec. 17.38(a) that is under control of 
the Archivist of the United States or the Administrator of the General 
Services Administration is subject to review by the Archivist for 
declassification or downgrading. This review will be in accordance with 
procedures developed by the Archivist which shall provide for 
consultation with the Department in matters of primary subject interest 
to this Department.
    (c) Decisions by the Archivist of the United States may be appealed 
to the Director of the Information Security Oversight Office. When the 
Department has primary subject matter interest, it shall be notified 
promptly of the Director's decision on such appeals and may further 
appeal to the National Security Council. The information shall remain 
classified pending a prompt decision on the appeal.



Sec. 17.39  Mandatory review for Foreign Government Information.

    Except as provided in this section, the Department shall process 
mandatory declassification review requests for classified records 
containing Foreign Government Information in accordance with Sec. 17.41. 
The agency that initially received or classified the Foreign Government 
Information shall be responsible for making a declassification 
determination after consultation with concerned agencies. If the Office, 
Board, Division or Bureau receiving the request did not originally 
receive or classify the Foreign Government Information, it shall refer 
the request to the appropriate agency for action. Consultation with the 
foreign originator through appropriate channels may be necessary prior 
to final action on the request. See subpart F for additional procedures 
for Foreign Government Information.



Sec. 17.40  Submission of requests for mandatory review.

    Requests for mandatory review of classified information shall be 
submitted in accordance with the following procedures.
    (a) Requests for mandatory declassification review under this 
subpart shall be submitted to the Director, Office of Information and 
Privacy, Office of Legal Policy, 10th and Constitution Avenue, NW., 
Washington, DC 20530. The Office of Information and Privacy shall 
promptly forward such requests to the Office, Board, Division or Bureau 
concerned, provided:
    (1) A department (any agency of the Government or other governmental 
unit) or employee thereof, or a U.S. citizen or permanent resident alien 
requests the review.
    (2) The request is in writing and reasonably describes the 
classified information or material with sufficient particularity to 
enable the Department to identify it.
    (3) The classified information or material can be located with a 
reasonable amount of effort.
    (b) When the description in a request is deficient, the requester 
should be asked to provide as much additional identifying information as 
possible. Before denying a request on the basis that the information or 
material is not obtainable with a reasonable amount of effort, the 
requester should also be asked to limit his request to information or 
material that is reasonably obtainable. If the requester then fails to 
describe the information or material he seeks with sufficient 
particularity, or if it cannot be obtained with a reasonable amount of 
effort, the requester shall be notified of the reasons why no action 
will be taken and of his right to

[[Page 321]]

appeal the decision to the Department Review Committee.
    (c) The Office of Information and Privacy shall assign the request 
to the appropriate Office, Board, Division or Bureau within the 
Department for action, and shall immediately acknowledge receipt of the 
request to the requester in writing. The Office, Board, Division or 
Bureau concerned shall thereafter make a determination within 60 days of 
receipt of the request or shall explain to the requester the reasons why 
further time is necessary (including where consultation with other 
agencies is required pursuant to Sec. 17.46(b)). Unless there are 
unusual circumstances, the Department will make a final decision within 
one year from receipt of the request. If at the end of one year from 
receipt of the request for review no determination has been made, the 
requester may apply to the Department Review Committee for a 
determination.
    (d) If the Office, Board, Division or Bureau determines that 
continued classification is required, the requester shall promptly be 
notified, and, whenever possible, provided with a brief statement as to 
why the requested information or material cannot be declassified. The 
requester may appeal any such determination to the Department Review 
Committee and the notice of determination shall advise him of this 
right. If, after appeal by the requester, the Department Review 
Committee determines that continued classification is required, it shall 
promptly notify the requester.
    (e) After review, the information or any reasonably segregable 
portion thereof that no longer requires protection under this regulation 
shall be declassified and released to the requester unless withholding 
is otherwise warranted under applicable law. If the information, 
although declassified, is withheld, the requester shall be given a brief 
statement as to the reasons for denial and a notice of the right to 
appeal the determination to the Office of Information and Privacy.
    (f) Appeals are to be sent to the Office of Information and Privacy, 
Office of Legal Policy, 10th and Constitution Avenue, NW., Washington, 
DC 20530. All appeals of denials must be filed with the Department 
within 60 days in order to be considered and each notification to a 
requester must contain a notice to that effect.
    (g) In making its determinations concerning requests for 
declassification of classified information, the Department Review 
Committee shall impose, for administrative purposes, the burden of proof 
on the originating Office, Board, Division or Bureau to show that 
continued classification is warranted.
    (h) Requests for declassification which are submitted under the 
provisions of the Freedom of Information Act, or Privacy Act of 1974, 
shall be processed in accordance with the provisions of those Acts.



Sec. 17.41  Information classsified by agencies other than the Department subject to mandatory review.

    (a) When the Office, Board, Division or Bureau receives a request 
from the Office of Information and Privacy for information in Department 
custody that involves information classified by another agency, it shall 
forward the request to the appropriate agency for review. The forwarding 
Department organization shall include a copy of the document containing 
the information requested, where practicable, and its recommendation to 
withhold any of the information, where appropriate.
    (b) Unless the agency that classified the information objects on 
grounds that its association with the information requires protection in 
the interest of national security, the Office, Board, Division or Bureau 
shall also notify the requester of the referral.
    (c) Where the agency that classified the information objects on the 
grounds that its association with the information requires protection in 
the interest of national security, the Office, Board, Divison Bureau 
shall not notify the requester of the referral. After the agency that 
classified the information completes its review (in coordination with 
other agencies that have a direct interest in the subject matter) and 
informs the Department, a response shall be sent by the Office, Board, 
Division or Bureau to the requester in accordance with Sec. 17.40 or 
comparable procedures.

[[Page 322]]



Sec. 17.42  Mandatory review appeal.

    The Director, Office of Information and Privacy, shall establish 
detailed procedures that will normally enable action within 30 working 
days upon all appeals of denials of requests for declassification. These 
procedures shall provide for meaningful appellate consideration by the 
Department Review Committee. In accordance with these procedures, the 
Department shall determine whether continued classification is required 
in whole or in part, notify the requester of the determination, and make 
available any information that is a declassified and otherwise 
releasable. If continued classification is required under the provisions 
of section 3.1 of Executive Order 12356, the requester shall be notified 
of the reasons therefor. If requested, the Department shall also 
communicate the appeal of denial determination to any referring agency.



Sec. 17.43  Fees.

    If the request requires the rendering of services for which fair and 
equitable fees may be charged pursuant to 31 U.S.C. 9701, such fees may 
be imposed at the discretion of the Office of Information and Privacy, 
in accordance with the schedule set forth in 28 CFR 16.9(b).



Sec. 17.44  Confirmation of existence of classified information.

    The Department shall refuse to confirm or deny the existence or 
nonexistence of requested information whenever the fact of its existence 
or nonexistence is itself classifiable under this regulation.



Sec. 17.45  Material officially transferred.

    In the case of classified information or material transferred by or 
pursuant to statute or Executive order from one department or agency to 
another in conjunction with a transfer of functions (as distinguished 
from transfers merely for the purpose of storage), the receiving 
department or agency shall be deemed to be the original classifying 
authority over such material for purposes of downgrading and 
declassification.



Sec. 17.46  Material not officially transferred.

    (a) When any Office, Board, Division or Bureau of the Department has 
in its possession any classified information or material originated in 
an agency or department outside of the Department, which has since 
ceased to exist, and whose files and other property have not been 
officially transferred to another agency or department within the 
meaning of Sec. 17.45, the head of the Office, Board, Division or Bureau 
(or his/her designee) with custodial jurisdiction over the information 
shall have the authority to declassify or downgrade such information. In 
addition, if it is impossible for the possessing Office, Board, Division 
or Bureau of the Department to identify the originating agency, and a 
review of the material indicates that the classified information 
contained therein should be downgraded or declassified, the head of the 
Office, Board, Division or Bureau concerned (or his/her designee) shall 
have the authority to declassify or downgrade such classified 
information.
    (b) When it appears probable that another department or agency may 
have a substantial interest in whether the classification of any 
particular information should be maintained, the possessing Office, 
Board, Division or Bureau within the Department shall not exercise the 
declassification authority discussed in Sec. 17.46(a), except following 
consultation with the other department or agency, until 60 days after 
the Office, Board, Division or Bureau concerned has notified, in 
writing, such other department or agency of the nature of the 
information and of its intention to downgrade or declassify the 
information concerned. During such a 60-day period, the other department 
or agency may, if it so desires, express its objections to downgrading 
or declassifying the particular information; however, the authority to 
make the ultimate decision shall reside with the head of the possessing 
Office, Board, Division or Bureau (or his designee).
    (c) Classification guidance may be sought from appropriate officials 
of the Office, Board, Division or Bureau concerned, from the Department 
Security Officer or from the Department Review

[[Page 323]]

Committee, in such instances, as described in this subpart. In cases of 
conflict, the Department Review Committee shall be the resolving 
authority.



Sec. 17.47  Information transferred for storage or retirement.

    (a) Insofar as practicable, documents containing classified 
information shall be reviewed to determine whether or not such 
information can be downgraded or declassified prior to being forwarded 
to the Archives of the United States for permanent preservation. When 
such a review is complete, certification of classification review shall 
be entered on or affixed to the transmittal form or on the document 
itself by an authorized classifying or declassifying official. 
Appropriate markings reflecting downgrading or declassification shall 
also be indicated, pursuant to Sec. 17.66, on each document reviewed.
    (b) Classified information transferred to the General Services 
Administration for accession into the archives of the United States 
shall be downgraded or declassified by the Archivist of the United 
States in accordance with Executive Order 12356, the directives of the 
Information Security Oversight Office, and Department guidelines 
pursuant to Sec. 17.36.



Sec. 17.48  Downgrading upon reconsideration.

    Classified information that is not marked for automatic downgrading 
may be assigned a lower classification designation by the originator or 
by an official authorized to declassify the same information (see 
Sec. 17.32). Notice of downgrading shall be provided to known holders of 
the information to the extent practicable.



Sec. 17.49  Notification of changes to a lower classification or declassification.

    (a) When documents containing classified information have been 
properly marked with specific dates or events for declassification, it 
is not necessary to issue notices of declassification to any holders. 
However, when a downgrading or declassification action is taken earlier 
than originally scheduled, the authority making such changes shall 
ensure prompt notification to all addressees to whom the information or 
material was originally transmitted. The notification shall specify the 
marking action to be taken, the authority therefor and the effective 
date. Upon receipt of notification, recipients shall effect the proper 
changes and shall notify addressees to whom, it turn, they have 
transmitted the classified information or material.
    (b) Automatic declassification determinations under predecessor 
orders remain valid, unless extended pursuant to Sec. 17.17, and the 
information will be downgraded or declassified without notification to 
holders.



Sec. 17.50  Foreign relations series.

    Heads of the Offices, Boards, Divisions and Bureaus should assist 
the Department of State in its preparation of the Foreign Relations of 
the United States series by facilitating access to appropriate 
classified material in their custody and by expediting declassification 
review of documents proposed for inclusion in the Foreign Relations of 
the United States.



                  Subpart D--Identification and Marking



Sec. 17.51  Policy.

    (a) Information determined to require classification protection 
under the provisions of this regulation shall be so designated. These 
designations shall also be affixed to material other than paper 
documents, or the originator shall provide holders or recipients of the 
information with written instructions for protecting the information.
    (b) Identification and markings shall not be used when the markings 
would reveal a confidential source or relationship not otherwise 
apparent in the documents.
    (c) Information assigned a level of classification under predecessor 
orders shall be considered as classified at that level of classification 
despite the omission of other required markings. Omitted markings may be 
inserted on a document by the officials specified in section 3.1(b) of 
Executive Order 12356.

[[Page 324]]



Sec. 17.52  Marking documents (General).

    (a) At the time of original classification, the following shall be 
shown on the face of originally classsified documents:
    (1) One of the three classification levels defined in Sec. 17.7;
    (2) The identity of the original classification authority, unless he 
or she is the signer or approver of the document;
    (3) The ``Department of Justice'' and the Office, Board, Division or 
Bureau of origin; and
    (4) Either the date or event for declassification or the caveat, 
``Originating Agency's Determination Required.''
    (b) Should any downgrading markings or action be made or be 
scheduled to be taken, the date the downgrading should be shown on the 
face of the document.
    (c) At the time of origin, paper copies of derivatively classified 
documents shall show on their face:
    (1) The source of classification, i.e., a source document(s) or 
classification guide. If classification is derived from more than one 
source, the phrase ``multiple sources'' will be shown and the 
identification of each source will be maintained with the file or 
records copy of the document;
    (2) The identity of the office within the Department originating the 
derivatively classified document;
    (3) The overall classification of the document;
    (4) The date or event for automatic declassification which shall be 
carried forward from the source material or classification guide. If the 
classification is derived from multiple sources, the latest date or 
event for declassification to the various source documents shall be 
applied to the new document.
    (d) Foreign Government Information shall either retain its orginal 
classification or be assigned a United States classification that shall 
ensure a degree of protection at least equivalent to that required by 
the entity that furnished the information.
    (e) In addition to the foregoing, paper copies of classified 
documents shall be marked as prescribed in this subpart or in subpart F 
if the document contains Foreign Government Information. Such notations 
shall be carried forward from source documents to derivatively 
classified documents when appropriate.



Sec. 17.53  Marking the document with the identity of classifier.

    (a) Identification of a classification authority shall be shown on 
the ``Classified by'' line prescribed under Sec. 17.66 and shall be such 
that, standing alone, it is sufficient to identify a particular 
official, source document or classification guide.
    (1) If any information in a document or material is classified as an 
act of original classification, the classification authority who made 
the determination shall be identified on the ``Classified by'' line, 
unless the classifier if also the signer or approver of the document.
    (2) If the classification of all information in a document or 
material is derived from a single source (for example, a source document 
or classification guide), the ``Classified by'' line shall identify the 
source of original classification or classification guide, including its 
date.
    (3) If the classification of information contained in a document or 
material is derived from more than one source document, classification 
guide, or combination thereof, the ``Classified by'' line shall be 
marked ``multiple sources'' and identification of all such sources shall 
be maintained with the file or record copy of the document.
    (4) If an official with requisite classification authority has been 
designated by the head of an Office, Board, Division or Bureau to 
approve security classifications assigned to all information leaving 
that component, the name and title of that designated official shall be 
shown on the ``Classified by'' line. The designated official shall 
maintain records adequate to support derivative classification actions 
by other organizations.
    (5) If the identification of the classifier in itself is classified 
information, a substitute identifier can be used provided that adequate 
records are maintained by the classifying organization to identify the 
classifier by name.
    (b) Guidance concerning the identification of the classification 
authority on electronically transmitted messages is contained in 
Sec. 17.60.

[[Page 325]]



Sec. 17.54  Overall and page marking.

    (a) Except as otherwise specified for working papers, the highest 
classification of a document, whether or not permanently bound, or any 
copy or reproduction thereof, shall be conspicuously marked, stamped or 
affixed permanently at the top and bottom on the outside of the front 
cover (if any), on the title page (if any), on the first page, and on 
the outside of the back cover (if any). Each interior page shall be 
marked with the designation ``UNCLASSIFIED'' when appropriate.
    (b) As an alternative, the highest classification of the document 
may be conspicuously marked or stamped at the top and bottom of each 
interior page (regardless of the actual classification of the 
information contained on that page), provided that such marking is 
necessary to achieve reproduction efficiency and that the particular 
information in the interior pages to which classification is assigned is 
otherwise sufficiently identified consistent with the intent of 
Sec. 17.56. In no event shall the overall classification marking of a 
page take the place of the classification marking of portions of the 
page marked with lower levels of classification.



Sec. 17.55  Marking components of documents.

    When major components of complex documents are likely to be used 
separately, each major component shall be marked as a separate document. 
Examples include: Each annex, appendix, or similar component of a plan 
or program; attachments and appendices to a memorandum or letter; and 
each major part of a report.



Sec. 17.56  Paragraph or portion marking.

    (a) Each section, part or paragraph, of a classified document shall 
be marked to show the level of classification of the information 
contained in or revealed by it, or that it is unclassified. Portions of 
documents shall be marked in a manner that eliminates doubt as to which 
portions contain or reveal classified information.
    (1) Classification levels of paragraphs or portions of a document 
shall be shown by placing a parenthetical designator immediately 
preceding or following the text that it governs. In marking sections, 
parts, paragraphs, subparagraphs, or similar portions, the parenthetical 
designators ``(TS)'' for Top Secret, ``(S)'' for Secret, and ``(C)'' for 
Confidential, shall be used.
    (2) When appropriate, the symbol ``U'' for Unclassified may be used, 
provided its use or nonuse is consistent throughout the document. Where 
required the symbols ``RD'' for Restricted Data and ``FRD'' for Formerly 
Restricted Data shall be added, e.g., ``(S-RD)'' or ``(C-FRD).'' In 
addition, portions that contain Critical Nuclear Weapon Design 
Information will be marked ``CNWDI'' following the classification.
    (b) Illustrations, photographs, figures, graphs, drawings, charts 
and similar portions of classified documents will be clearly marked to 
show their classification or unclassified status. Such markings shall 
not be abbreviated and shall be prominent and placed within or 
contiguous to the portion. Captions of such portions shall be marked on 
the basis of their content alone, by placing the symbol ``(TS),'' 
``(S),'' ``(C),'' or ``(U)'' immediately preceding the caption.
    (c) If the application of parenthetical designation marking is 
determined to be impracticable, the document shall contain a statement 
sufficient to identify the information that is classified and the level 
of such classification. When all portions of a classified document are 
classified at the same level, this fact may be indicated by a statement 
to that effect, which is included in the document.
    (d) When elements of information in one portion require different 
classifications, but segregation into separate portions would destroy 
continuity or context, the highest classification required for any item 
shall be applied to that portion or paragraph.
    (e) The Attorney General may, for good cause and in writing, grant 
and revoke waivers of the foregoing portion marking requirements.
    (1) Requests for a waiver of portion marking requirements shall be 
submitted to the Department Security Officer from the Security Programs 
Managers and shall include the following:

[[Page 326]]

    (i) Identification of the information or class of documents for 
which the waiver is sought;
    (ii) A detailed explanation of why the waiver should be granted;
    (iii) The written determination of the Office, Board, Division or 
Bureau that the anticipated dissemination of the information or class of 
documents for which the waiver is sought is minimal; and
    (iv) The extent to which such information subject to the waiver may 
be a basis for derivative classification in future documents.
    (2) If there is some other basis to conclude that the potential 
benefits of portion markings are clearly outweighed by the increased 
administrative burdens, a letter to the Department Security Officer from 
the Security Programs Manager should be submitted setting forth the 
circumstances.
    (3) The Director of the Information Security Oversight Office shall 
be notified by the Department Security Officer of any waivers.



Sec. 17.57  Subjects and titles of documents.

    Subjects or titles of classified documents must be marked with the 
appropriate symbol, ``(TS),'' ``(S),'' ``(C),'' or ``(U)'' and shall be 
placed immediately to the right of such subjects or titles. When 
applicable, other appropriate symbols, e.g., ``(RD)'' and ``(FRD),'' 
shall be added. Every effort should be made to use unclassified titles 
or subjects. However, if a title or subject requires classification, an 
unclassified identifier may be assigned to facilitate reference.



Sec. 17.58  Files, folders or groups of documents.

    Files, folders or groups of documents shall be marked conspicuously 
according to the highest classification of any classified document 
included therein. Document cover sheets may be used for this purpose.



Sec. 17.59  Transmittal documents.

    A transmittal document shall carry on its face a prominent notation 
as to the highest classification of the information transmitted with it 
and a legend showing the classification, if any, of the transmittal 
document standing alone. For example, an unclassified document that 
transmits a classified document shall bear a notation substantially as 
follows: ``unclassified when classified enclosure is removed.''



Sec. 17.60  Messages.

    It is recognized that marking some electronically transmitted 
classified messages poses serious technical problems, requiring certain 
exceptions. However, every reasonable effort shall be made to mark such 
messages consistent with the provisions of this subpart. Message 
abbreviations examples are included in Sec. 17.66.



Sec. 17.61  Translations.

    Translations of U.S. classified information into a language other 
than English shall be marked to show the United States as the country of 
origin, with the appropriate U.S. classification markings and the 
foreign language equivalent.



Sec. 17.62  Markings on special categories of material.

    (a) Security classification and declassification instructions 
assigned by the classifier shall be consistent with Sec. 17.51. In 
addition to use of a stamped marking, classification levels may be 
printed, written, painted, or affixed by means of a tag, sticker, decal 
or similar device, on classified material other than paper copies of 
documents, with preference given to the most durable.
    (b) If marking the material or container is not practicable, written 
notification of the security classification and declassification 
instructions shall be furnished to recipients. The following procedures 
for marking various kinds of material containing classified information 
are not all inclusive and may be varied to accommodate the physical 
characteristics of the material containing the classified information as 
well as organizational and operational requirements.



Sec. 17.63  Charts, maps and drawings.

    Charts, maps and drawings shall bear the appropriate classification 
marking under the legend, title block or scale,

[[Page 327]]

in a manner that differentiates between the overall classification of 
the document and the classification of the legend or title itself. The 
higher of these markings shall be inscribed at the top and bottom of 
each such document. If folding or rolling charts, maps or drawings would 
obscure the classification markings, additional markings shall be 
applied that are clearly visible when the document is folded or rolled.



Sec. 17.64  Photographs, films and recordings.

    Photographs, films (including negatives), recordings, and their 
containers shall be marked in such a manner as to assure that a 
recipient or viewer will know that classified information of a specified 
level of classification is involved.



Sec. 17.65  Applying derivative declassification markings.

    New material that derives its classification from existing 
classified material shall be treated as follows:
    (a) If the source material bears a declassification date or event, 
the date or event shall be carried forward to the new material.
    (b) If the source material has no declassification date or event, or 
bears an indeterminate date or wording such as ``Upon Notification by 
Originator,'' ``Cannot Be Determined,'' ``Impossible to Determine,'' or 
``Date of Review,'' the new material shall be marked ``Originating 
Agency's Determination Required.''



Sec. 17.66  Examples of commonly used markings.

    (a) Original classification. At the time of origin, each classified 
document is marked on its face with one or more standard markings 
substantially as shown below in addition to other markings contained in 
Sec. 17.52.
    (1) The following markings are used with an original classification 
when there is a specific event or date for declassification:

CLASSIFIED BY: (Classification Authority)
DECLASSIFY ON: (Date or Event)
and Message Abbreviation: DECL (Date or Event)

    (2) The following markings are used with an original classification 
when a date or event for declassification cannot be determined:

CLASSIFIED BY: (Classification Authority)
DECLASSIFY ON: Originating Agency Determination Required or (OADR)
and Message Abbreviation: DECL (OADR)

    (b) Downgrading and Declassification. Declassification and, as 
applicable, downgrading instructions shall be shown as follows:
    (1) For information to be declassification automatically on a 
specific date:

DECLASSIFY ON: (Date)
and Message Abbreviation: DECL: (Date)

    (2) For information to be declassified automatically upon occurrence 
of a specific event:

DECLASSIFY ON: (Description of Event)
and Message Abbreviation: DECL: (Description of Event)

    (3) For information not to be declassified automatically:

DECLASSIFY ON: Originating Agency's Determination Required or OADR
and Message Abbreviation: DECL: OADR

    (4) For information to be downgraded automatically on a specific 
date or upon occurrence of a specific event:

DOWNGRADE TO (Classification Level)
ON (Date or Description of Event)
and Message Abbreviation:
DNG (abbreviation of classification level to which the information is to 
be downgraded and date or description of event on which downgrading is 
to occur)

    (c) Derivative classification. Documents classified derivatively on 
the basis of source documents or classification guides shall bear all 
markings prescribed in Secs. 17.51 through 17.66 as are applicable. 
Information for these markings shall be taken from the source document 
or instructions in the appropriate classification guide.
    (1) The authority for derivative classification shall be shown as 
follows:

CLASSIFIED BY: (Description of source document or classification guide)
and a Message Abbreviation is not required.

    (i) If a document is classified on the basic of more than one source 
document or classification guide, the authority for classification shall 
be shown as follows:


[[Page 328]]


CLASSIFIED BY MULTIPLE SOURCES

In these cases, the derivative classifier shall maintain the 
identification of each source with the file or record copy of the 
derivatively classified document.
    (ii) A document derivatively classified on the basis of a source 
document that is marked ``classified by multiple sources'' shall cite 
the source document in its ``classified by'' line rather than the term 
``multiple sources.''
    (2) Dates or events for automatic declassification or downgrading, 
or the notation ``originating agency's determination required'' to 
indicate that the document is not to be declassified automatically, 
shall be carried forward from the source document, or as directed by a 
classification guide, and shown on a ``declassify on'' line as follows:

DECLASSIFY ON: (Date, Description of Event, or Originating Agency's 
Determination Required or OADR)
and Message Abbreviation: DECL (Date, Description of Event, or OADR)

    (d) Restricted Data. The Restricted Data and Formerly Restricted 
Data markings are, in themselves, evidence of extended classification. 
Therefore, except for electronically transmitted messages, only a 
completed ``Classified By'' line is required with such a marking.
    (1) Classified documents or material containing Restricted Data as 
defined in the Atomtic Energy Act of 1954, as amended, shall be marked 
as follows on the bottom of each page:

RESTRICTED DATA
This document contains Restricted Data as defined in the Atomic Energy 
Act of 1954. Unauthorized disclosure subject to Administrative and 
Criminal Sanctions.

    (2) Classified documents or material containing Formerly Restricted 
Data, as defined in the Atomic Energy Act of 1954, as amended, 42 U.S.C. 
2162(d), but no Restricted Data, shall be marked as follows on the 
bottom of each page:

FORMERLY RESTRICTED DATA
Unauthorized disclosure subject to Administrative and Criminal 
Sanctions. Handle as Restricted Data in Foreign Dissemination, Atomic 
Energy Act of 1954, as amended, 42 U.S.C. 2164(b).''

    (e) Intelligence sources or methods information. Classified 
information or material involving intelligence sources or methods that 
is subject to specific dissemination controls shall be marked with the 
following additional warning notice, unless otherwise proscribed by the 
Director of Central Intelligence.

WARNING NOTICE--INTELLIGENCE SOURCES OR METHODS INVOLVED.
The message abbreviation WNINTEL shall be used on applicable 
electrically transmitted messages unless proscribed by the Director of 
Central Intelligence.

    (f) Foreign Government Information. Documents that contain Foreign 
Government Information shall include either the marking ``foreign 
government information,'' or a marking that otherwise indicates that the 
information is Foreign Government Information. When Foreign Government 
Information must be concealed, the document shall be marked as if it 
were wholly of United States origin. The message abbreviation FGI shall 
be used on applicable electrically transmitted messages unless the fact 
that the information is of foreign origin must be concealed.



Sec. 17.67  Upgrading.

    When material is upgraded it shall be promptly and conspicuously 
marked, except that in all such cases the old classification markings 
shall be cancelled and new markings substituted therefor. All upgrading 
shall be in accordance with Sec. 17.28.



Sec. 17.68  Limited use of posted notice for large quantities of material.

    (a) When the volume of material is such that prompt remarking of 
each classified item cannot be accomplished without unduly interfering 
with operations, the custodian may attach upgrading, downgrading or 
declassification notices to the storage unit. Each notice shall specify 
the authority for the classification action, the date of the action, and 
the storage unit to which it applies.
    (b) When individual documents or materials are permanently withdrawn 
from storage units, they shall be remarked promptly. However, if 
documents or materials subject to a downgrading or declassification 
notice are

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withdrawn from one storage unit solely for transfer to another, or a 
storage unit containing such documents or materials is transferred from 
one place to another, the transfer may be made without remarking, 
provided that in all instances the notice is attached to or remains with 
each shipment. Items permanently withdrawn from such storage units shall 
be promptly remarked in accordance with this subpart.



Sec. 17.69  Additional warning notices.

    Should the marking requirements prescribed in Sec. 17.52 not be 
adequate, additional warning notices shall be prominently displayed on 
classified documents or materials, as applicable. In the case of 
documents, these warning notices shall be marked conspicuously on the 
outside of the front cover, or on the first page, if there is no front 
cover.



Sec. 17.70  Dissemination and reproduction notice.

    Classified information that is determined by a Department originator 
to be subject to special dissemination or reproduction limitations, or 
both, shall include an appropriate statement(s) on its cover sheet or 
the first page of the text, substantially as follows:

``Reproduction requires approval of originator or higher Department of 
Justice Authority.''
``Further dissemination only as directed by (Insert appropriate office 
or official) or higher Department of Justice authority.'' or ``Eyes 
Only.''



                   Subpart E--Safekeeping and Storage



Sec. 17.71  Policy.

    (a) Classified information may be used, discussed, held, or stored 
only where there are facilities or under conditions adequate to prevent 
unauthorized persons from gaining access to it. The exact nature of 
security requirements will depend on a thorough security evaluation of 
local conditions and circumstances. Security requirements must permit 
the accomplishment of essential functions while affording selected items 
of information reasonable degrees of security with a minimum of risk. 
The requirements specified in this regulation represent the minimum 
acceptable standards.
    (b) Funds, weapons, medical items, or other items of intrinsic value 
will not be stored in containers with classified National Security 
Information. This restriction does not apply to valuable items which are 
themselves classified.



Sec. 17.72  Standards for storage equipment.

    The General Services Administration establishes and publishes 
minimum uniform standards, specifications, and supply schedules for 
containers, vaults, alarm systems and associated security devices 
suitable for storage and protection of classified information and 
material throughout the Government. Department Order 2620.4 entitled, 
``Physical Security Manual for Safeguarding Classified National Security 
Information'' contains information regarding acceptable security 
equipment for the physical protection of National Security Information 
within the Department. No other equipment to be used for the storage of 
classified National Security Information shall be procured without the 
prior approval of the Department Security Officer.



Sec. 17.73  Storage of classified material.

    Classified material, including classified information stored on 
removable storage media used by typewriters, word processors or remote 
terminal equipment, must be protected at all times. Whenever classified 
material is not under the personal control of an authorized and 
appropriately cleared person, whether during or outside of working 
hours, it will be guarded or stored in a locked security container as 
prescribed below:
    (a) Top Secret. Top Secret information or material shall be stored 
in:
    (1) A safe-type steel file container having a built-in, three-
position, dial-type changeable combination lock appoved by the General 
Services Administration or a vault or secure area which meets the 
standards as contained in the Subject Manual cross referenced in 
Department Order 2620.4, or
    (2) An alarmed area, provided such facilities are judged by the 
Department Security Officer to afford protection

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equal to or greater than that prescribed in paragraph (a)(1) of this 
section. When an alarmed area is utilized for the storage of Top Secret 
information and material, the physical barrier must be adequate to 
prevent surreptitious removal or observation of the material. The 
physical barrier must also be such that attempted forcible entry will 
give evidence of such entry into the area or room. As a minimum the 
alarm system must provide for an immediate response by a security force 
to an attempted surreptitious or forced entry.
    (b) Secret and Confidential. Secret and Confidential material may be 
stored in a manner authorized for Top Secret; or in a vault-type room, 
or secure storage room which has been approved in accordance with the 
standards prescribed in the Subject Manual cross referenced in 
Department Order 2620.4, or until phased out, in containers described in 
paragraph (d) of this section.
    (c) Specialized security equipment--(1) One and two-drawer 
containers. One and two-drawer security containers which are approved by 
the General Services Administration shall be used primarily in mobile 
facilities or in areas where small amounts of classified information are 
stored. Such containers should be securely fastened or guarded to 
prevent the theft of the container.
    (2) Map and plan file. A General Services Administration approved 
Map and Plan File container has been developed for storage of odd-sized 
items such as computer cards and tapes, maps, charts, plans, and other 
classified material.
    (d) Non-General Services Administration approved containers. In 
addition to the security containers meeting General Services 
Administration standards, Secret and Confidential classified information 
may be stored in a steel filing cabinet equipped with a built-in, three-
position, dial-type changeable combination lock; or as a last resort, in 
an existent steel filing cabinet equipped with a steel lock bar, 
provided it is secured by a General Services Administration approved 
changeable combination padlock. If a steel filing cabinet with a steel 
lock bar is used for Secret information, the procedures in Department 
Order 2620.4 must be adhered to.
    (e) Sensitive Compartmented Information storage. Sensitive 
Compartmented Information will be stored only in accredited facilities 
which meet approved physical security standards for such material 
pursuant to Director of Central Intelligence Directive 1/19 entitled, 
``Uniform Procedures for Administrative Handling and Accountability of 
Sensitive Compartmented Information'' and other applicable Department 
regulations. When maintained in Sensitive Compartmented Information 
facilities, classified information may be stored in the same container 
prescribed for storage of Sensitive Compartmented Information; however, 
when removed from the Sensitive Compartmented Information facility, the 
provisions of Sec. 17.73 (a) through (d) above apply.



Sec. 17.74  Procurement and phase-in of new storage equipment.

    Whenever new security storage equipment is procured, it will be from 
the security containers listed on the Federal Supply Schedule, General 
Services Administration.
    (a) Further acquisition for unapproved security containers or 
modification of cabinets to bar-padlock type as storage equipment for 
classified information and material is prohibited. Exceptions may be 
made by the Department Security Officer, upon written request from the 
Security Programs Manager concerned.
    (b) When a security storage container is acquired, the Security 
Programs Manager shall ensure that a new combination is set before the 
container is put into use.



Sec. 17.75  Designations of security containers.

    There shall be no external marking as to the level of classified 
information authorized to be stored in a container. However, each vault, 
secure area or security container shall be assigned a number or symbol 
for the purpose of identifying what level or category of clasified 
information is stored therein. The number or symbol shall be affixed in 
a conspicuous location on the outside of the vault or security 
container. Security Programs Managers shall

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keep a record of the vaults and security containers under their 
cognizance along with the designation of the level of classified 
information authorized to be stored therein.



Sec. 17.76  Changing combinations to security containers.

    Combinations to security containers and dial-type locks will be 
changed only by individuals having an appropriate security clearance and 
who have received instruction on how to correctly change such 
combinations. Combinations shall be changed:
    (a) When the container is placed in use;
    (b) When an individual knowing the combination no longer requires or 
is authorized access to classified information stored in the container;
    (c) When the combination or record of combination has been subject 
to compromise;
    (d) When taken out of service; or
    (e) At least annually.



Sec. 17.77  Equipment out of service.

    When security storage equipment is taken out of service, it shall be 
inspected to ensure that no classified information remains.
    (a) Security Programs Managers shall establish procedures to certify 
that whenever security equipment is moved or relocated or ``out of 
service'' or ``excess'' that the security equipment does not contain 
classified information.
    (b) When taken out of service, built-in combination locks shall be 
reset to the standard combination 50-25-50. Combination padlocks shall 
be reset to the standard combination 10-20-30.



Sec. 17.78  Classification of combinations.

    The combination of a vault or container used for the storage of 
classified information and material shall be assigned a security 
classification no lower than the highest level of the classified 
material authorized to be stored therein. No downgrading/
declassification instructions or classifier identity are required to be 
made when classifying records of combinations to security containers. 
Accordingly, classification actions for such combinations are not 
required to be reported. Knowledge of combinations shall be limited to 
the minimum number of persons necessary for operating purposes.



Sec. 17.79  Recording storage facility data.

    A record shall be maintained by Security Programs Managers or their 
designees for each vault, secure area, or container used for the storage 
of classified information. The record shall show its location, and the 
names and other appropriate identifying data of persons having knowledge 
of the combinations to such storage facilities. General Services 
Administration Optional Form 63, entitled, ``Security Container 
Information'' may be used within the Department for these purposes. The 
OF-63 containing security combinations shall be marked with the 
appropriate overall classification, and shall be safeguarded and stored 
in accordance with the protection afforded to that classification.



Sec. 17.80  Care during working hours.

    Each individual shall take all necessary precautions to prevent 
access to classified information by unauthorized persons (i.e., persons 
who do not possess an appropriate security clearance, and who do not 
possess the required need-to-know). Among the precautions to be followed 
are:
    (a) Classified documents, when removed from storage for working 
purposes, shall be kept under constant surveillance and turned face-down 
or covered when not in use. Department Cover Sheets should be utilized 
to cover classified documents.
    (b) Preliminary drafts, carbon sheets, plates, stencils, 
stenographic notes, worksheets, and all similar items containing 
classified information shall be either destroyed by the person 
responsible for their preparation immediately after they have served 
their purposes, or shall be given the same classification and 
safeguarded in the same manner as the classified information they 
contain.
    (c) Classified information handled by word processors or remote 
terminals is susceptible to interception by unauthorized persons due to 
unintended electrical emanations. Word processors or remote terminals 
used frequently to handle classified information must

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have a reduced level of emanations (e.g., approved by the Subcommittee 
on Compromising Emanations) or located in an area with a sufficient 
perimeter of control.
    (d) Typewriter ribbons used in typing classified information shall 
be protected in the same manner as the highest level of classification 
for which they have been so used. When destruction is necessary, it 
shall be accomplished in the manner prescribed for classified working 
papers (See subpart H) of the same classification. After the upper and 
lower sections of the ribbon have been cycled through the typewriter 
five times in the course of regular typing, all fabric ribbons may be 
treated as unclassified. Carbon and plastic typewriter ribbons and 
carbon paper which have been used in the production of classified 
information shall be destroyed after initial usage in the manner 
prescribed for working papers of the same classification. As an 
exception to the foregoing, any typewriter ribbon which remains 
substantially stationary in the typewriter after it has received at 
least five consecutive impressions may be treated as unclassified.



Sec. 17.81  Care after working hours.

    Heads of Offices, Boards, Divisions and Bureaus shall require and 
institute through their Security Programs Managers, a system of security 
checks at the close of each working day to ensure that the classified 
information in the possession of such Offices, Boards, Divisions and 
Bureaus is properly protected. Security Programs Managers shall require 
the custodians of classified information in their Offices, Boards, 
Divisions or Bureaus to make periodic inspections of their respective 
areas which shall ensure that the following minimum requirements are 
met:
    (a) All classified information is stored in approved security 
containers. This includes removable storage media, e.g., floppy disks 
used by word processors, that contain classified information.
    (b) Burn bags, if utilized, are either stored in approved security 
containers or destroyed.
    (c) Classified shorthand notes, carbon paper, carbon and plastic 
typewriter ribbons, rough drafts and similar papers have been properly 
stored or destroyed.



Sec. 17.82  Administrative aids for safeguarding classified material.

    Appropriate forms shall be used on security containers for check 
purposes. Such forms shall be conspicuously attached to the outside of 
each container used for the storage of classified information. Each 
authorized person will record the time and date that he or she unlocks 
or locks the security container, followed by the person's initials. At 
the close of each working day, a person other than the individual 
locking the container will check the container, in the presence of the 
individual locking the container, to ensure that it is secure. The time 
of the check followed by the checker's initials will be recorded. The 
check will be conducted each working day. If a container has not been 
opened, the date and the phrase ``Not Opened'' will be noted in addition 
to the time and the checker's initials. A container will not be left 
unattended until it has been locked by an authorized person and checked 
by a second person. The person locking a container is responsible for 
insuring that another person checks the container. Reversible ``OPEN-
CLOSED'' signs, shall be utilized on security containers containing 
classified information. The respective side of the sign shall be 
displayed to indicate when the container is open or closed.



Sec. 17.83  Telephone or telecommunication conversations.

    (a) Classified information shall not be discussed over nonsecure 
telephones. Classified telephone conversations are authorized only over 
approved secure (encrypted) communication circuits. Information 
concerning which telephones in the Department are secure may be obtained 
from Security Programs Managers or the Department Security Officer.
    (b) Classified information shall not be transmitted over nonsecure 
radio equipment or facsimile devices. Classified information may be 
transmitted

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using approved secure (encrypted) communication equipment. Guidance on 
which communication equipment is secure may be obtained from the 
Security Programs Manager or the Department Security Officer.



Sec. 17.84  Security of meetings and conferences.

    The official responsible for arranging or convening a conference or 
other meeting is also responsible for instituting procedures and 
selecting facilities which provide adequate security if classified 
information is to be discussed or disclosed. (See Department Order 
2660.1A.) The responsible official will:
    (a) Notify each person who is to be present or who is to discuss 
classified information or any security limitations that must be imposed 
because of:
    (1) The level of access authorization.
    (2) Requirement for access to the information by the attendees.
    (3) Physical security conditions.
    (b) Ensure that each person attending the classified portions of 
meetings has been authorized access to information of equal or higher 
classifiation than the information to be disclosed.
    (c) Ensure that the area in which classified information is to be 
discussed affords adequate acoustical security against unauthorized 
disclosure.
    (d) Ensure that adequate storage facilities are available, if 
needed.
    (e) Control and safeguard any classified information furnished to 
those in attendance and retrieve the material or obtain receipts, as 
required.
    (f) Monitor the meetings to ensure that discussions are limited to 
the level authorized.
    (g) Ensure that meetings at which classified information is to be 
discussed will be held only in a U.S. Government area or at a cleared 
facility of a Department contractor or consultant. When necessary for 
the accomplishment of essential functions, a meeting involving 
classified information may be held at another location provided it has 
been specifically authorized by the Department Security Officer.



                Subpart F--Foreign Government Information



Sec. 17.85  Identification of documents.

    Foreign Government Information under this regulation is of two types 
and shall be classified in accordance with this subpart.
    (a) Information, whether classified or unclassified, provided by a 
foreign government or governments, an international organization of 
governments, or any element thereof with the expectation, express or 
implied, that the information, the source of the information, or both, 
are to be held in confidence shall be classified by the Office, Board, 
Division, or Bureau receiving the document.
    (b) Information produced by the United States pursuant to or as a 
result of a joint arrangement with a foreign government or governments 
or an international organization of governments, or any element thereof, 
requiring that the information, the arrangement, or both, are to be held 
in confidence shall be classified.



Sec. 17.86  Classification.

    (a) Foreign Government Information classified and provided by a 
foreign government or international organization of governments shall 
retain its original classification designation or be assigned a United 
States classification designation that will ensure a degree of 
protection equivalent to that required by the government or organization 
that furnished the information. Original classification authority is not 
required for this purpose.
    (b) Foreign Government Information that was not classified by a 
foreign entity but was provided with the expectation, expressed or 
implied, that it be held in confidence must be classified. Therefore, 
such Foreign Government Information shall be classified at least 
Confidential, and higher whenever the damage criteria for Secret and Top 
Secret in subpart B are determined to be met.



Sec. 17.87  Presumption of damage by unauthorized disclosure.

    Unauthorized disclosure of Foreign Government Information, the 
identity

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of a confidential foreign source or intelligence sources or methods is 
presumed to cause damage to the national security.



Sec. 17.88  Duration of classification.

    (a) Foreign Government Information marked for automatic 
declassification shall be declassified unless extended by an authorized 
official of the originating agency.
    (b) Unless classification guidelines developed pursuant to subpart B 
prescribed dates or events for declassification, Foreign Government 
Information may be classified by the Department as required by national 
security considerations.



Sec. 17.89  Systematic review.

    (a) The Attorney General may, in consultation with the Archivist of 
the United States and, where appropriate, with the foreign governments 
or international organizations concerned, develop systematic review 
guidelines for 30-year old Foreign Government Information in the 
possession or under the control of the Department. These guidelines 
shall be kept current through review by the Attorney General at least 
once every five years unless earlier review for revision is requested by 
the Archivist of the United States.
    (b) The Director, Office of Information and Privacy, shall perform 
administrative functions necessary to effect such review by the Attorney 
General.
    (c) These guidelines shall be authorized for use by the Archivist of 
the United States and may, upon approval of the Attorney General, be 
used by any agency having custody of the same categories of information.



Sec. 17.90  Mandatory review.

    (a) Requests for mandatory review for declassification of Foreign 
Government Information shall be processed and acted upon in accordance 
with the provisions of Secs. 17.37 through 17.46, except that Foreign 
Government Information will be declassified only in accordance with the 
classification guidelines developed for such purpose and after necessary 
consultation with other Government agencies with subject matter 
interest.
    (b) In cases where the above guidelines cannot be applied to the 
Foreign Government Information requested, or in the absence of such 
guidelines, consultation with the foreign originator through appropriate 
channels should be effected prior to final action on the request. When 
the responsible Office, Board, Division or Bureau is knowledgeable of 
the foreign originator's view toward declassification or continued 
classification of the types of information requested, consultation with 
the foreign orginator may not be necessary.
    (c) If the Office, Board, Division or Bureau receiving the mandatory 
review request did not receive or classify the Foreign Government 
Information, it shall refer the request to the appropriate agency for 
action. The agency that initially received or classified the Foreign 
Government Information shall be responsible for making a 
declassification determination after consultation with other concerned 
agencies.



Sec. 17.91  Equivalent United States classification designations.

    Except for the foreign security classification designation 
``restricted,'' foreign classification designations, including those of 
international organizations of governments, i.e., NATO and CENTO, 
generally parallel United States classification designations.



Sec. 17.92  Marking other foreign government documents.

    (a) If the security classification designation of foreign government 
documents is shown in English, no other classification marking shall be 
applied. If the security classification designation is not shown in 
English, the equivalent overall U.S. classification designation shall be 
marked conspicuously on the document. In those cases where foreign 
government documents are marked with a classification designation having 
no U.S. equivalent, such documents shall be marked and handled in 
accordance with Sec. 17.92(b).
    (b) Certain foreign governments and international organizations of 
governments use a fourth classification designation below Confidential. 
Such classification is frequently designated as

[[Page 335]]

``Restricted'' by such entities. If foreign government documents are 
marked with such a classification designation, whether or not in 
English, the U.S. classification marking Confidential shall be applied 
and the Foreign Government Information so designated shall be protected 
as U.S. Confidential information.
    (c) Dates for declassification or for review for declassification 
shall be marked on foreign government documents only as required by 
Secs. 17.88 and 17.89.
    (d) In most cases, other marking requirements prescribed by this 
regulation for U.S. classified documents are not applicable to documents 
of foreign governments or international organizations of governments.



Sec. 17.93  Marking of Foreign Government Information in Department documents.

    (a) When Department documents contain Foreign Government 
Information, the marking ``foreign government information'' or a marking 
that otherwise indicates that the information is Foreign Government 
Information shall be shown on the face of the document.
    (b) Where such markings would reveal Foreign Government Information 
incorporated into Department documents that must be concealed as to its 
source, the markings shall not be used.
    (c) The requirement for portion markings may be satisfied by 
including the appropriate identification in the portion or paragraph 
classification markings, e.g., (NATO-S) or (U.K.-C).



Sec. 17.94  Other Foreign Government Information.

    Classified Foreign Government Information held by an Office, Board, 
Division or Bureau shall be safeguarded or protected as prescribed by 
this regulation for United States classified information of a comparable 
level.



          Subpart G--Access, Dissemination, and Accountability



Sec. 17.95  Policy.

    (a) No person may be given access to classified information or 
material originated by, in the custody or under the control of the 
Department, unless that person has been determined to be trustworthy and 
(except as provided in Sec. 17.96(e)) unless access is necessary for the 
performance of official duties. Procedures shall be established by the 
Security Program Managers of the Offices, Boards, Divisions and Bureaus 
to prevent any unnecessary access to classified information. No person 
is authorized to have access to classified information solely by virtue 
of rank or position. Accordingly, all requests from the heads of the 
Offices, Boards, Divisions and Bureaus to the Department Security 
Officer for a personnel security clearance shall contain a demonstrable 
need for access to classified information. Further, the number of 
persons cleared and granted access to classified information shall be 
maintained at the minimum number that is consistent with operational 
requirements and needs.
    (b) The determination of trustworthiness for eligibility for access 
to classified information (referred to as a security clearance) shall be 
made by the Department Security Officer or his designee and shall be 
based on appropriate security background investigations in accordance 
with applicable Executive Orders, Department regulations, Intelligence 
Community directives and Office of Personnel Management guidelines. 
Current and valid clearances issued to persons by other agencies of the 
Executive Branch may be accepted, for access purposes only, in lieu of 
granting such clearances by the Department Security Officer. Such 
clearance certification shall be accomplished by the Department Security 
Officer, upon request.
    (c) The Department Security Officer may delegate, in writing, the 
authority to grant Department employees security clearances to qualified 
Security Programs Managers when the operational need justifies such 
delegation and the Department Security Officer is assured that such 
officials shall continually apply all clearance criteria in a uniform 
and correct manner during the adjudication of personnel security 
investigations. In those instances where such authority is delegated, 
the Department Security Officer shall reserve

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the right to review all personnel security cases which contain 
derogatory information that could be a deterrent to eligibility for 
clearance. The Department Security Officer shall reserve the right to 
withdraw such authority in any instance where it is determined that 
Department clearance policy and criteria set forth herein are not being 
expressly followed.



Sec. 17.96  Access by persons outside the Executive Branch.

    Classified information shall not be disseminated outside the 
Executive Branch except under conditions that ensure that the 
information will be given protection equivalent to that afforded within 
the Executive Branch.
    (a) General. In accordance with the provisions of Department Order 
2620.6, classified information originated by, or in the custody of, the 
Department may be made available to individuals or agencies outside the 
Executive Branch provided that such information is necessary for 
performance of a function from which the Government will derive a 
benefit or advantage, and that such release is approved by the Attorney 
General or the Assistant Attorney General for Administration, and is not 
prohibited by the originating department or agency (or foreign 
government in the case of Foreign Government Information). Recipients 
must be shown to be trustworthy by the Department Security Officer and 
recipients must agree to safeguard the information in accordance with 
the provisions of this regulation. Heads of Offices, Boards, Divisions 
and Bureaus shall determine, prior to the release of classified 
information, the propriety of such action, in the interest of the 
national security and the recipient's security clearance status and 
need-to-know.
    (b) Congress. Access to classified information by Congress, its 
committees, members, and staff representatives shall be in accordance 
with the provisions of Department Order 2620.6. Any Department employee 
testifying before a Congressional Committee in executive session in 
relation to a classified matter shall obtain the assurance of the 
committee that individuals present have a security clearance 
commensurate with the highest classification of the information that may 
be discussed. Members of Congress, by virtue of their elected positions, 
are not investigated or cleared by the Department.
    (c) Non-contractor personnel. Personnel outside the Executive Branch 
who are not subject to any Department contracts or grants and therefore 
are exempt from the provisions of the Defense Industrial Security 
Program and who require access to classified information originated by 
or in the custody of the Department shall be processed for such 
clearance in accordance with the provisions of Department Order 2620.6.
    (d) Contractor personnel. Personnel who are subject to a Department 
contract or grant or who are rendering consultant services to the 
Department and require access to classified information originated by or 
in the custody of the Department shall be processed for such access/
clearance in accordance with the provisions of the Defense Industrial 
Security Program and Department Order 2600.3A.
    (e) Historical researchers and former Presidential appointees. (1) 
The requirement in Sec. 17.95 that access to classified information may 
be granted only as is necessary for the performance of official duties 
may be waived for persons who:
    (i) Are engaged in historical research projects or
    (ii) Have previously occupied policymaking positions to which they 
were appointed by the President.
    (2) All persons receiving access pursuant to this subparagraph must 
have been determined to be trustworthy by the Department Security 
Officer as a precondition before receiving access. such determination 
shall be based on such investigation as the Department Security Officer 
deems appropriate. Historical researchers and former Presidential 
appointees shall not have access to Foreign Government Information 
without the written permission from appropriate authority of the foreign 
government concerned.
    (3) Waivers of the ``need-to-know'' requirement under this paragraph 
may be granted by the Department Security Officer provided that the 
Security Programs Manager of the Office, Board, Division or Bureau with 
classification

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jurisdiction over the information being sought;
    (i) Makes a written determination that such access is consistent 
with the interests of national security;
    (ii) Limits such access to specific categories of information over 
which the Department has classification jurisdiction;
    (iii) Maintains custody of the classified information at a 
Department facility; and
    (iv) Obtains the recipient's written and signed agreement to 
safeguard the information in accordance with the provisions of this 
regulation and to authorize a review of any notes and manuscript for 
determination that no classified information is contained therein;
    (v) And in the case of former Presidential appointees, limits their 
access to items that such former appointees originated, reviewed, signed 
or received while serving as a Presidential appointee and ensures that 
such appointee does not remove or cause to be removed any classified 
information reviewed.
    (4) If access requested by historical researchers and former 
Presidential appointees requires the rendering of services for which 
fair and equitable fees may be charged pursuant to 31 U.S.C. 9701, the 
requester shall be so notified and fees may be imposed.
    (f) Access by persons within the Judicial Branch. To have access to 
classified information, every person except for Federal judges appointed 
by the President, including but not limited to court reporters, typists 
and secretaries, law clerks and translators must be granted the 
appropriate clearance by the Department Security Officer. Before 
clearance can be granted to any individual outside the Executive Branch 
who requires access to classified information originated by or in the 
custody of the Department, the person must have a complete and current 
full-field background investigation to allow a determination of 
eligibility for a security clearance to be made. This full-field 
investigation is conducted by the Federal Bureau of Investigation or the 
Office of Personnel Management. The length of time it generally takes to 
complete an expedited full-field background investigation is 90 days. 
Therefore, the courts should be advised of the time required to satisfy 
Executive Branch security regulations. All persons requiring access to 
classified information should be identified as promptly as possible by 
the Department's legal counsel to ensure the earliest possible beginning 
of clearance procedures.
    (g) Judicial proceedings. (1) Any Department employee or 
organization receiving an order or subpoena from a Federal or State 
court to produce National Security Information, required to submit 
National Security Information for official Department litigative 
purposes, or receiving National Security Information from another 
organization for production of such in litigation, shall immediately 
determine from the agency originating the classified information whether 
the information can be declassified.
    (2) If declassification is not possible, the Department employee or 
organization and the assigned Department legal counsel in the case shall 
take all appropriate action to protect such information pursuant to the 
provisions of this paragraph.
    (3) If a determination is made to produce such information in a 
judicial proceeding in any manner, the assigned Department legal counsel 
shall take all steps necessary to ensure the cooperation of the court 
and where appropriate, opposing counsel, in safeguarding and retrieving 
the information pursuant to the provisions of this regulation.
    (4) The Classified Information Procedures Act, Public Law 96-456, 94 
Stat. 2025, 18 U.S.C. App. (Supp. 1983), and the ``Security Procedures 
Established Pursuant to Public Law 96-456, 94 Stat. 2025, by the Chief 
Justice of the United States for the Protection of Classified 
Information,'' may be used in Federal criminal cases involving 
classified information. In judicial proceedings other than Federal 
criminal cases or where the Classified Information Procedures Act is not 
used, the following minimum security safeguards shall be requested of 
the court and, where appropriate, sought to be included in a judicial 
protective order:

[[Page 338]]

    (i) Every effort shall be made to limit production of classified 
information to an in camera, ex parte review by the court to determine 
the relevance of the classified information in question.
    (ii) Classified information shall not be introduced into evidence or 
otherwise disclosed at a proceeding without the prior approval of either 
the originating agency, the Attorney General, or the President.
    (iii) Attendance at any proceeding where classified information is 
to be introduced or disclosed should be limited to the judge(s) as 
defined in Department Order 2620.6 and to those other persons whose 
duties require knowledge or possession of the classified information who 
have been determined to be trustworthy by the Department Security 
Officer.
    (iv) All such proceedings shall be held in a court facility which 
can provide appropriate protection for the classified information as 
determined by the Department Security Officer.
    (v) Dissemination and accountability controls shall be established 
for all classified information offered for indentification or introduced 
into evidence at such proceedings.
    (vi) All transcripts of such proceedings shall be appropriately 
marked to show the classified portions and placed under seal upon 
transcription.
    (vii) All classified information including the appropriate portions 
of the transcript shall be handled and stored in a manner consistent 
with the provisions of this regulation.
    (viii) At the conclusion of the proceeding, all classified 
information shall be returned to the Department or placed under seal by 
the court.
    (ix) All classified notes, drafts, or any other documents generated 
during the course of the proceedings and containing classified 
information shall be retrieved by Department employees and immediately 
transferred to the Department for safeguarding and destruction as 
appropriate.
    (x) All persons who become privy to classified information disclosed 
under the provisions of this section shall be fully advised as to the 
classification level of such information, all pertinent safeguarding and 
storage requirements, and their liability in the event of unauthorized 
disclosure.
    (xi) The Department Security Officer, in consultation with the 
agency originating classified case-related information and Government 
attorneys, may waive any of the security requirements identified in 
paragraph (g)(4) (iii)--(x) of this section, if it has been determined 
that such a waiver is in the interest of the national security.
    (5) This paragraph shall apply to all litigation, including matters 
arising under the Freedom of Information Act, 5 U.S.C. 552, as amended.



Sec. 17.97  Access by foreign nationals, foreign governments, international organizations, and immigrant aliens.

    (a) Classified information may be released to foreign nationals, 
foreign governments and international organizations only when authorized 
under the provisions of the National Disclosure Policy (NDP-1) issued by 
the Secretary of Defense.
    (b) If it is in the interest of the national security, Secret and 
Confidential information may be released, on a limited basis, to 
immigrant aliens in the performance of official duties, provided that 
the Department Security Officer determines the individual is reliable 
and trustworthy in accordance with this subpart.
    (c) Immigrant aliens may be granted a Limited Access Authorization 
to Top Secret information provided that the head of the Office, Board, 
Division of Bureau concerned makes a personal written request and 
determination to the Department Security Officer that such access is 
essential to meet Government requirements and that the Department 
Security Officer determines that the individual is reliable and 
trustworthy in accordance with this subpart.



Sec. 17.98  Procedures for requesting a security clearance for a Department employee.

    Requests for determination of eligibility for a security clearance 
shall be in the form of a memorandum addressed from the head of the 
Office, Board, Division or Bureau concerned to the Department Security 
Officer. Exception to this requirement may be

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granted in accordance with the provisions of Sec. 17.95(c). Two copies 
of the request shall be submitted. The memorandum shall contain the 
following items:
    (a) Degree of clearance requested. National security clearances are 
categorized into three levels, namely, Top Secret, Secret, and 
Confidential. The categories of security clearances are related directly 
to the levels of National Security Information to which access is 
required.
    (b) Justification for requested clearance. A person must have a need 
for access to the particular classified information or material sought 
in connection with his/her official duties or obligations. This need-to-
know is the essence for any justification for a security clearance. The 
justification for a clearance does not have to be long or detailed; 
however, a strict need-to-know shall be established before consideration 
to grant a security clearance can be given.
    (c) Continuous evaluation of need-to-know. A continuing review of 
the established need-to-know shall be conducted by the Security Programs 
Manager.
    (d) Request for administrative withdrawal. The head of each Office, 
Board, Division or Bureau shall make provision to request the 
administrative withdrawal of a security clearance of persons for whom 
there is no foreseeable need for access to classified information or 
material in connection with the performance of their official duties; 
for example, termination of employment or change in position. Likewise, 
when a person no longer needs access to classified material bearing a 
particular security classification category, a request that the security 
clearance be adjusted to the classification category still required for 
the performance of his/her official duties and obligations shall be made 
by the Security Programs Manager of the Office, Board, Division or 
Bureau concerned. In both instances, such action resultant from these 
requests will be without prejudice to the person's eligibility for 
future security clearances.



Sec. 17.99  Other access situations.

    When necessary in the interests of national security, the Attorney 
General or the Assistant Attorney General for Administration may 
authorize access by persons outside the Federal Government, other than 
those enumerated above, to classified information upon determining that 
(a) the recipient is trustworthy for the purpose of accomplishing a 
national security objective and (b) that the recipient can and will 
safeguard the information from unauthorized disclosure. The clearance 
procedures and provisions of Department Order 2620.6 shall be followed 
in such instances.



Sec. 17.100  Dissemination.

    (a) Policy. Except as otherwise provided in section 102 of the 
National Security Act of 1947, 50 U.S.C. 403, and 17.96(f) of this 
regulation, classified information originating within the Department may 
not be disseminated outside any other agency to which it has been made 
available without the consent of the Department. Conversely, classified 
information originating in a department or agency other than the 
Department shall not be disseminated outside the Department without 
first obtaining the consent of the originating department or agency. 
Office, Board, Division and Bureau Security Programs Managers shall 
establish procedures consistent with this regulation for the 
dissemination of classified information. The originating official or 
Office, Board, Division or Bureau may prescribe specific restrictions on 
dissemination of classified information when necessary.
    (b) Restraint on reproduction. No documents or materials or any 
portions thereof that contain Top Secret information shall be reproduced 
without the consent of the originator or higher authority. Any stated 
prohibition or markings on any classified document (regardless of 
classification) against reproduction shall be strictly observed. (See 
Sec. 17.70.) The folowing measures apply to reproduction equipment and 
to the reproduction of classified information:
    (1) Copying of documents containing classified information shall be 
minimized;
    (2) Officials within each Office, Board, Division or Bureau shall be 
authorized by the Security Programs

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Manager, in writing, to approve the reproduction of Top Secret and 
Secret information; shall be designated by position title, and shall 
review the need for reproduction of classified documents with a view 
toward minimizing reproduction;
    (3) Specific reproduction equipment shall be designated for the 
reproduction of classified information. Rules for reproduction of 
classified information shall be posted on or near the designated 
equipment;
    (4) Notices prohibiting reproduction of classified information shall 
be posted on equipment used only for the reproduction of unclassified 
information;
    (5) Security Programs Managers shall ensure that equipment used for 
reproduction of classified material does not leave latent images in the 
equipment or on other material;
    (6) All copies of classified documents reproduced for any purpose, 
including those incorporated into a working paper, are subject to the 
same controls prescribed for the document from which the reproduction is 
made; and
    (7) Records shall be maintained to show the number and distribution 
of reproduced copies of all Top Secret documents and of all classified 
documents covered by special access programs distributed outside the 
Department. Also, records shall be maintained concerning all Secret and 
Confidential documents which are marked with special dissemination and 
reproduction limitations.



Sec. 17.101  Transmission of Top Secret information.

    Transmission of Top Secret information shall be effected only by:
    (a) Authorized and cleared Department messenger-courier services;
    (b) The Department of State Courier System;
    (c) The Armed Forces Courier Service;
    (d) Cleared and designated Department employee traveling on a 
conveyance owned, controlled or chartered by the Government;
    (e) Cleared and designated Department employees traveling by surface 
transportation;
    (f) Cleared and designated Department employees traveling on 
scheduled commercial passenger aircraft within and between the United 
States, its Territories and Canada;
    (g) Cleared and designated Department contractors traveling within 
and between the United States and its Territories provided that the 
transmission has been authorized in writing by the appropriate 
contracting officer or his/her designated representative and, the 
designated employees have been briefed in their responsibilities as 
couriers or escorts for the protection of Top Secret material; or
    (h) A cryptographic communication system authorized by the Director, 
National Security Agency, or other secure communications circuits 
approved by the Department Security Officer.



Sec. 17.102  Transmission of Secret and Confidential information.

    Transmission of Secret and Confidential information may be effected 
by:
    (a) Any of the means approved for the transmission of Top Secret 
information except that Secret information may be introduced into the 
Armed Forces Courier Service only when the control of such information 
cannot be otherwise maintained in United States custody;
    (b) Appropriately cleared Department contractors within and between 
the United States and its Territories provided that
    (1) The designated individuals have been briefed in their 
responsibilities as couriers or escorts for protecting classified 
information; and
    (2) The classified information remains under the constant custody 
and protection of the contractor personnel at all times;
    (c) U.S. Postal Service registered mail with registered mail receipt 
within and between the 50 States, the District of Columbia, and Puerto 
Rico;
    (d) U.S. Postal Service registered mail with registered mail receipt 
through DOD Postal Service facilities outside the 50 States, the 
District of Columbia, and Puerto Rico, provided that the information 
does not at any time pass out of U.S. citizen control and does not pass 
through a foreign postal system or any foreign inspection;

[[Page 341]]

    (e) U.S. Postal Service and Canadian registered mail with registered 
mail receipt between United States Government and Canadian government 
installations in the United States and Canada; or
    (f) Government and Government contract vehicles including aircraft, 
ships of the U.S. Navy, civil service operated U.S. Naval ships, and 
ships of U.S. registry when these carriers are under appropriately 
cleared escort personnel. Appropriately cleared operators of vehicles, 
officers of ships or pilots of aircraft who are U.S. citizens may be 
designated as escorts provided the control of the carrier is maintained 
on a 24-hour basis. The escort shall protect the shipment at all times, 
through personal observation or authorized storage to prevent 
inspection, tampering, pilferage, or unauthorized access. However, 
observation of the shipment is not required during the period it is 
stored in an aircraft or ship in connection with flight or sea transit, 
provided the shipment is loaded into a compartment that is not 
accessible to any unauthorized persons or in a specialized secure, safe-
like container.



Sec. 17.103  Transmission of classified information to foreign governments.

    Subsequent to a determination by competent authority that classified 
information may be released to a foreign government, it shall be 
transmitted only to an embassy or official agency or representative of 
the recipient government.



Sec. 17.104  Envelopes or containers.

    (a) Whenever classified information is transmitted, it shall be 
enclosed in two opaque sealed envelopes or similar wrappings where size 
permits, except as provided below.
    (b) Whenever classified material is transmitted and the size of the 
material is not suitable for transmission in accordance with paragraph 
(a) of this section, it shall be enclosed in two opaque sealed 
containers, such as boxes or heavy wrappings.
    (c) Material used for packaging shall be of such strength and 
durability as to provide security protection while in transit, to 
prevent items from breaking out of the container, and to facilitate the 
detection of any tampering with the container. The outer wrappings shall 
conceal all classified characteristics.



Sec. 17.105  Addressing.

    (a) Addresses forwarding classified information shall be specific so 
that couriers/messengers may easily identify the intended recipients. 
Use of office code numbers or such phrases in the address as 
``Attention: Research Department,'' or similar aids in expediting 
internal routing, in addition to the organization address is encouraged.
    (b) Classified written information should be folded in such a manner 
that the text will not be in direct contact with the inner envelope or 
container. A receipt form shall be attached to or enclosed in the inner 
envelope or container for all classified information. When written 
materials of different classifications are transmitted in one package, 
they shall be wrapped in a single inner envelope or container. A receipt 
listing all classified information shall be attached or enclosed. The 
inner envelope or container shall be marked with the highest 
classification of the contents.
    (c) The inner envelope or container shall show the address of the 
receiving activity, classification, including, where appropriate, the 
``Restricted Data'' marking, and any applicable special instructions. It 
shall be carefully sealed to minimize the possibility of access without 
leaving evidence of tampering.
    (d) An outer or single envelope or container shall show the complete 
and correct address of the receiving activity and the return address of 
the sender.
    (e) An outer cover or single envelope or container shall not bear a 
classification marking, a listing of the contents divulging classified 
information, or any other unusual data or marks that might invite 
special attention to the fact that the contents are classified.
    (f) Care must be taken to ensure that classified information 
intended only for the U.S. elements of international staffs or other 
organizations is addressed specifically to those elements.

[[Page 342]]



Sec. 17.106  Receipt systems.

    (a) Top Secret information shall be transmitted under a chain of 
receipts covering each individual who receives custody.
    (b) Secret and Confidential information shall be transmitted by a 
receipt between activities and other authorized addressees, except that 
in lieu of receipts, the heads of Offices, Boards, Divisions and Bureaus 
may prescribe such procedures as are necessary to control effectively 
Secret and Confidential information.
    (c) Receipts shall be provided by the transmitter of the material 
and the forms shall be attached to the inner envelope or cover.
    (1) Receipt forms shall be unclassified and contain only such 
information as is necessary to identify the material being transmitted.
    (2) Receipts shall be retained for at least two years.



Sec. 17.107  Transmission exceptions.

    Exceptions to the transmission requirements for classified 
information may be authorized by the Department Security Officer, 
provided the exception affords an equal amount of protection and 
accountability as that provided by the requirements set forth above. 
Proposed exceptions that do not meet these minimum standards shall not 
be approved.



Sec. 17.108  General courier restrictions.

    Appropriately cleared personnel may be authorized to escort/hand-
carry classified material between their organization and an office to be 
visited, subject to the following conditions:
    (a) The storage provisions of this regulation shall apply at all 
stops en route to the destination, unless the information is retained in 
the personal possession and constant surveillance of the individual at 
all times. The hand-carrying of classified information on trips that 
involve an overnight stopover is not permissible without advance 
arrangements for proper overnight storage in a Government installation 
or a cleared contractor's facility.
    (b) Classified material shall not be read, studied, displayed, or 
used in any manner in public conveyances or places.
    (c) When classified material is carried in a private, public, or 
Government conveyance, it shall not be stored in any detachable storage 
compartment such as automobile trailers or luggage racks.
    (d) Security Programs Managers shall provide a written statement to 
all individuals escorting or carrying classified material aboard 
commercial passenger aircraft authorizing such transmission. This 
authorization statement may be included in official travel orders and 
should ordinarily permit the individual to pass through passenger 
control points without the need for subjecting the classified material 
to inspection. Specific procedures for carrying classified documents 
aboard commerical aircraft are contained in Sec. 17.110. The Security 
Programs Managers shall ensure that employees carrying classified 
information abroad have obtained an official passport and other 
necessary documentations as required by the Department of State.
    (e) Each organization shall account for all classified information 
carried or escorted by traveling personnel.
    (f) Individuals authorized to carry or escort classified material 
shall be fully informed of the provisions of this subpart prior to 
departure from their duty station.



Sec. 17.109  Restrictions on hand-carrying classified information aboard commercial passenger aircraft.

    Classified information shall not be hand-carried aboard commercial 
passenger aircraft unless:
    (a) There are no other authorized means available to move the 
information to accomplish operational objectives or contract 
requirements in a timely manner.
    (b) The hand-carrying has been authorized by the Department Security 
Officer or the Security Programs Manager or a designated Security 
Officer of the Office, Board, Division or Bureau concerned.
    (c) The hand-carrying is accomplished aboard a U.S. carrier. Foreign 
carriers will be utilized only when no United States carrier is 
available and then the information must remain in the custody and 
physical control of the U.S. escort at all times.

[[Page 343]]



Sec. 17.110  Procedures for hand-carrying classified information on commercial passenger aircraft.

    (a) Basic requirements. Advance and continued coordination by the 
Office, Board, Division or Bureau shall be made with departure airline 
and terminal officials and, where possible, with intermediate transfer 
terminals to develop mutually satisfactory arrangements within the terms 
of this issuance and Federal Aviation Administration guidance. 
Specifically, a determination should be made beforehand as to whether 
documentation described in paragraph (c) of this section, will be 
required. Local Federal Aviation Administration Security Officers can be 
of assistance in making this determination.
    (1) The individual designated as courier shall be in possession of a 
Department picture identification card and written authorization from 
the Security Programs Manager of the organization concerned or the 
Department Security Officer to carry classified information.
    (2) The courier shall be briefed as to the provisions of this 
subpart.
    (b) Procedures for carrying classified information. Persons carrying 
classified information should process through the airline ticketing and 
boarding procedure in the same manner as all other passengers except for 
the following:
    (1) The classified information being carried shall contain no metal 
bindings and shall be contained in sealed envelopes or other suitable 
containers. Should such envelopes or packages be contained in a 
briefcase or other carry-on luggage, the briefcase or luggage shall be 
routinely offered for opening and inspection for weapons.
    (2) Opening or reading of the classified document by the screening 
official is not permitted.
    (c) Procedures for transporting classified information in large 
packages. Classified information in large sealed or packaged containers 
shall be processed as follows:
    (1) The Department official who has authorized the transport of the 
classified information shall notify the appropriate air carrier in 
advance.
    (2) The passenger carrying the information shall report to the 
affected airline ticket counter prior to boarding, present his 
documentation and the package or cartons to be exempt from screening. 
The airline representative will be requested to review the documentation 
and description of the containers to be exempt.
    (3) If satisfied with the identification of the passenger and his 
documentation, the airline official will be requested to provide the 
passenger with an escort to the screening station and authorize the 
screening personnel to exempt the container from physical or other type 
inspection.
    (4) If the airline officials or screening personnel refuse to permit 
the package to be loaded onto the aircraft without inspection, the 
courier will contact the appropriate Department official for further 
instructions.
    (5) The actual loading and unloading of the information will be 
under the supervision of a representative of the air carrier; however, 
appropriately cleared personnel shall accompany the material and keep it 
under surveillance during loading and unloading operations. In addition, 
appropriately cleared personnel must be available to conduct 
surveillance at any intermediate stops where the cargo compartment is to 
be opened.



Sec. 17.111  Accountability of Top Secret information.

    (a) Top Secret Control Officers and alternate Top Secret Control 
Officers shall be designated, in writing, by Security Programs Managers 
within all Offices, Boards, Divisions and Bureaus. Copies of such 
designations shall be forwarded to the Department Security Officer. Such 
officers shall be responsible for receiving, transmitting, and 
maintaining accountability registers for Top Secret information. They 
shall be selected on the basis of experience, reliability, and shall 
have appropriate security clearances. Further, Security Programs 
Managers shall ensure that written procedures concerning accountability 
of Top Secret information are promulgated. A copy of such procedures 
shall be forwarded to the Department Security Officer.
    (b) All Top Secret information received or originated with the 
Department shall be immediately registered by an appropriate Top Secret 
Control

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Officer or alternate. Such registering process shall include the 
recording of: The date the document was received and originated; the 
classification of the document; the number of copies; the title and 
description of the document; the disposition and date; the location of 
the document; and the serial number assigned to the document. For 
example, the 25th Top Secret document received within the Criminal 
Division during 1982 could be assigned the following Top Secret control 
number: CRM-82-0025.
    (c) Top Secret accountability registers shall be maintained by each 
originating and receiving office for all Top Secret documents received 
or in its custody.
    (d) The name and title of all individuals, including stenographic 
and clerical personnel, to whom information in Top Secret documents has 
been disclosed, and the date of such disclosure, shall be recorded. The 
use of a sheet of paper permanently attached to the document concerned 
may serve as a disclosure record or log for these purposes. Disclosures 
to individuals who may have had access to containers in which Top Secret 
infomation is stored need not be recorded on disclosure records. 
Disclosure records shall be retained for two years after the document 
concerned is transferred, downgraded or destroyed.



Sec. 17.112  Inventories.

    Top Secret documents and material shall be inventoried at least once 
annually. Organizations which store large volumes of classified 
information may limit their annual inventory to documents and material 
which have been disclosed within the past year. If a storage system 
contains large volumes of information and security measures are adequate 
to prevent access by unauthorized persons, the head of the Office, 
Board, Division or Bureau may submit a request for a waiver of the 
annual inventory requirement to the Department Security Officer. 
However, the request must be fully justified to provide a basis for the 
Attorney General to approve, in writing, the waiver of these annual 
inventory requirements.



Sec. 17.113  Accountability of Secret and Confidential information.

    Security Programs Managers within all Offices, Boards, Divisions, 
and Bureaus are responsible for ensuring that accountability procedures 
for Secret and Confidential information are established within their 
respective organizations. Such procedures shall be written and shall 
pertain to Secret and Confidential information originated or received by 
a Department component; distributed or routed to a subelement of such 
component; and disposed of by the component by transfer of custody or 
destruction. Copies of written procedures for the accountability and 
control of Secret and Confidential information shall be forwarded to the 
Department Security Officer. At a minimum, such procedures shall provide 
for the identification of the document.



Sec. 17.114  Accountability of reproduced documents.

    Reproduced copies of Top Secret, Secret and Confidential documents 
are subject to the same accountability and controls as the original 
documents. (See Sec. 17.100(b).)



Sec. 17.115  Working papers.

    ``Working papers'' are classified documents and material accumulated 
or created in the preparation of finished documents and material. 
Working papers containing classified information shall be dated when 
created; marked with the highest classification of any information 
contained therein; protected in accordance with the assigned 
classification; destroyed when no longer needed; and marked with a 
declassification or review date when placed in permanent files. Working 
papers shall be accounted for and controlled in the manner prescribed 
for a finished document of comparable classification when released by 
the originator or transmitted through message center channels; filed 
permanently; or retained more than 180 days from date of origin.

[[Page 345]]



      Subpart H--Disposal and Destruction of Classified Information



Sec. 17.116  Policy.

    All National Security Information shall be destroyed in a manner 
described herein whenever the operational or historical need for the 
particular classified information ceases to exist. Every effort shall be 
made to destroy National Security Information as soon as practical for 
two basic reasons:
    (a) First, the longer large volumes of National Security Information 
are existent, the greater the potential for compromise.
    (b) Second, the physical and document security requirements 
involving National Security Information are expensive to fulfill and 
maintain. The smaller the amount of National Security Information in 
existence within the Department, the fewer storage containers and 
security areas are required and the smaller the budgetary allotment 
which must be allocated by the Department to fulfill security 
requirements.



Sec. 17.117  Record material.

    Documentary record material made by an Office, Board, Division or 
Bureau of the Department in connection with the transaction of public 
business, and preserved as evidence of the organization, functions, 
policies, operations, decisions, procedures, or other activities of any 
Department or Agency of the government, may be disposed of or destroyed 
only in accordance with Offices, Boards and Divisions (OBD) Order 
2710.3A, Chapter 6.



Sec. 17.118  Nonrecord material.

    Nonrecord material containing classified information (including 
shorthand notes, used carbon paper, one-time typewriter ribbons, word 
processor disks, preliminary drafts, plates, records and tapes, 
stencils, negatives, and the like, and wastage incidental thereto) shall 
be destroyed, in accordance with this subpart, as soon as it has served 
its purpose, unless it is the subject of an ongoing mandatory review for 
declassification request. Prior to destruction, this material must be 
protected in a manner to prevent unauthorized disclosure of the 
information in accordance with the safeguarding procedures contained in 
this regulation.



Sec. 17.119  Methods of destruction.

    Top Secret, Secret and Confidential classified information and 
material (record and nonrecord) shall be destroyed in the presence of an 
appropriately cleared official by burning, melting, chemical 
decomposition, pulping, pulverizing, shredding or other mutilation 
sufficient to preclude recognition or reconstruction of the classified 
information. Classified information stored on floppy disks or other 
forms of magnetic media can also be destroyed by erasure but only when 
unclassified information is substituted in its place.



Sec. 17.120  Records of destruction.

    (a) Records of destruction are required for Top Secret and Secret 
information and shall be dated and signed by two officials (destruction 
and witnessing officials) witnessing actual destruction. If destruction 
is accomplished by an approved central disposal system, the destruction 
record shall be signed by the witnessing officials at the time the 
material is delivered at the facility. Records of destruction shall be 
maintained for a minimum of two years after which they may be destroyed. 
Such records shall contain the identification of the document(s) 
destroyed, the method of destruction used, the time and place of 
destruction, the reason for destruction, and the name of the destroying 
official and witness.
    (b) The Security Programs Manager, his/her appointed Security 
Officer(s) when appropriate, Top Secret Control Officers or their 
alternates, or custodians of classified information, are authorized to 
destroy National Security Information. An additional person, who 
possesses a security clearance at the same or higher level than the 
classification of the material being destroyed, shall witness the 
destruction thereof. The destruction officials shall be trained in the 
operation of the equipment being used for destruction and shall ensure 
that destruction is accomplished in accordance with provisions of this 
subpart.

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                   Subpart I--Special Access Programs



Sec. 17.121  Policy.

    It is the policy of the Department to utilize the standard 
classification categories and the applicable sections of Executive Order 
12356 and its implementing Information Security Oversight Office 
Directive to limit access to classified information on a ``need-to-
know'' basis to personnel who have been determined to be trustworthy. It 
is also the policy to apply the ``need-to-know'' principle so that there 
will be no need by the Department to resort to formal special access 
programs which further restrict access to classified information. If it 
is determined a special access program should be created, a specific 
showing in writing must be prepared that demonstrates:
    (a) Normal management and safeguarding procedures are not sufficient 
to limit ``need-to-know'' or access.
    (b) The number of persons who will need access will be reasonably 
small and commensurate with the objective of providing extra protection 
for the information involved.
    (c) The safeguarding requirements of subpart E may be modified by 
the Attorney General as long as the modified requirements provide 
appropriate protection for the information.



Sec. 17.122  Authority for establishing special access programs.

    The Attorney General may establish or continue special access 
programs to control access to, and distribution and protection of, 
particularly sensitive information originated within the Department and 
classified pursuant to Executive Order No. 12356. Request for such 
establishment shall be submitted in writing to the Department Security 
Officer. However, special access programs involving intelligence sources 
or methods, such as the Sensitive Compartmented Information Program, may 
be established only by the Director of Central Intelligence.



Sec. 17.123  Requesting the establishment or renewal of special access programs.

    (a) Special access program requests shall be in writing and shall 
contain the information specified in Sec. 17.124, below. Such requests 
shall be from the head of the Office, Board, Division or Bureau 
concerned and addressed to the Attorney General through the Department 
Security Officer. After a decision has been made concerning approval/
disapproval, the original copy shall be maintained for records purposes 
by the Department Security Officer.
    (b) Special access programs approved within the Department are 
required to be reviewed at least every five years by the Office, Board, 
Division or Bureau concerned and by the Department Security Officer.



Sec. 17.124  Information required in requests for special access programs.

    Each special access program request, whether for establishment or 
renewal, shall contain the following information:
    (a) Office, Board, Division or Bureau concerned (including subunit),
    (b) Unclassified name or short title of the program,
    (c) Relationship, if any, to other special access programs within 
the Department or other departments,
    (d) Rationale and justification for establishment of a special 
access program, including the reason(s) why normal management and 
safeguarding procedures for classified information are inadequate,
    (e) Estimated number of persons to be granted special access within 
the Department, in other departments, and outside the Executive Branch 
or U.S. Government, and
    (f) All instructions pertaining to the program security requirements 
including, but not limited to, those governing access to program 
information.



Sec. 17.125  Identification markings and accounting for special access programs.

    (a) The Department Security Officer may prescribe additional 
markings to identify information given protection by means of a special 
access program.
    (b) The Department Security Officer shall account for and maintain a 
listing of those special access programs approved by the Attorney 
General. The

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Director, Information Security Oversight Office, shall have non-
delegable access to all such accountings.



       Subpart J--Executive Branch Oversight and Policy Direction



Sec. 17.126  National Security Council.

    Pursuant to the provisions of Executive Order 12356, the National 
Security Council shall provide overall policy direction for the 
Information Security Program.



Sec. 17.127  Administrator of General Services.

    The Administrator of General Services is responsible for 
implementing and monitoring the Information Security Program. In 
accordance with Executive Order 12356, this responsibility has been 
delegated to the Director of the Information Security Oversight Office.



Sec. 17.128  Information Security Oversight Office.

    (a) The Information Security Oversight Office has a full-time 
Director appointed by the Administrator of General Services with 
approval of the President. The Office is supported by a staff appointed 
by the Director.
    (b) The Director of the Information Security Oversight Office is 
charged with the following principal functions that pertain to the 
Department:
    (1) Develop, in consultation with the Department and other agencies, 
and promulgate, subject to the approval of the National Security 
Council, directives for the implementation of Executive Order 12356, 
which shall be binding on the Department and the Offices, Boards, 
Divisions and Bureaus;
    (2) Oversee Department actions to ensure compliance with Executive 
Order 12356 and the Information Security Oversight Office implementing 
directive;
    (3) Review the Department's implementing regulations and guidelines 
for systematic declassification review. The Director shall require any 
regulation or guideline to be changed if it is not consistent with this 
regulation or implementing directives. Any such decision by the Director 
may be appealed to the National Security Council. The Department 
regulation or guideline shall remain in effect pending a prompt decision 
on the appeal;
    (4) Have the authority to conduct on-site reviews of the Information 
Security Program of each agency that generates or handles classified 
information and to require of each agency such reports, information, and 
other cooperation as may be necessary to fulfill the Director's 
responsibilities. If these reports pose an exceptional national security 
risk, the Attorney General or the Department Security Officer may deny 
access. The Director may appeal denials to the National Security 
Council. The denial of access shall remain in effect pending a prompt 
decision on the appeal;
    (5) Consider and take action on complaints and suggestions from 
persons within or outside the Government with respect to the 
administration of the Information Security Program;
    (6) Have the authority to prescribe, after consultation with the 
Department and affected agencies, standard forms that will promote the 
implementation of the Information Security Program;
    (7) Report at least annually to the President through the National 
Security Council on the implementation of Executive Order 12356; and
    (8) Have the authority to convene and chair interagency meetings to 
discuss matters pertaining to the Information Security Program.



Sec. 17.129  Department representatives to interagency meetings.

    (a) The Counsel for Intelligence Policy is the representative of the 
Attorney General to interagency meetings on matters of general interest 
concerning information security.
    (b) Concerning particular matters of information security, the 
Attorney General will designate a representative based on the 
recommendations of the Counsel for Intelligence Policy and the head of 
the affected Office, Board, Division or Bureau.



Sec. 17.130  Coordination with the Information Security Oversight Office.

    Security Programs Managers of the Offices, Boards, Divisions and 
Bureaus

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shall ensure that any requirements levied directly on their organization 
by the Information Security Oversight Office are brought to the 
attention of the Department Security Officer by telephone or in writing 
as appropriate for the situation.



       Subpart K--Department of Justice Security Responsibilities



Sec. 17.131  General responsibilities and duties.

    (a) It shall be the responsibility and duty of each officer and 
employee of the Department having knowledge of Classified information or 
material relating to the national security no matter how such knowledge 
was obtained to be familiar with and adhere to the provisions of this 
regulation concerning National Security Information and material.
    (b) It shall be the responsibility of the Department Security 
Officer to establish and orientation program throughout the Department 
for the instruction and familiarization of employees with the provisions 
of this regulation. Such program shall initially emphasize the changes 
in the rules governing classification, declassification, and protection 
of National Security Information and material resulting from Executive 
Order 12356, the Information Security Oversight Office's implementing 
directive, and this regulation.
    (c) Any employee, contractor, licensee or grantee of the Department 
having access to and possession of classified information is responsible 
for protecting it from persons not authorized access to it, to include 
securing it in approved equipment or facilities whenever it is not under 
the direct supervision of authorized persons, and meeting accountability 
requirements prescribed by the Attorney General through the Department 
Security Officer.
    (d) The Department Security Officer shall establish a continuing 
program of security awareness for the instruction of employees regarding 
the protection of National Security Information and potential threats of 
compromise to the Department.



Sec. 17.132  Loss or possible compromise of classified information.

    Any person who has knowledge of the loss or possible compromise of 
classified information shall immediately report the circumstances to the 
Security Programs Manager designated for his/her organization. The 
agency that originated the information shall be notified immediately by 
the Security Programs Manager of the loss or possible compomise so that 
a damage assessment may be conducted and appropriate measures taken to 
negate or minimize any adverse effect of the compromise. The Office, 
Board, Division or Bureau under whose cognizance the loss or possible 
compromise occurred shall initiate an inquiry in accordance with subpart 
L.



Sec. 17.133  The Attorney General.

    The Attorney General, upon request by the head of an agency or a 
duly designated representative, shall personally or through authorized 
representatives of the Department render an interpretation of Executive 
Order 12356, its implementing directive or this regulation with respect 
to any question arising in the course of its administration.



Sec. 17.134  Assistant Attorney General for Administration.

    The Assistant Attorney General for Administration is the senior 
Department official having authority and responsibility to direct and 
administer the Department's Information Security Program (DOJ Order 990-
82 (Oct. 6, 1982)). He/she will ensure effective and uniform compliance 
within the Department of this regulation. As such, the Assistant 
Attorney General for Administration has delegated primary responsibility 
for providing guidance, oversight, developing policy and procedures 
governing the Department of Justice Information Security Program to the 
Department Security Officer.



Sec. 17.135  Department Review Committee.

    (a) The Department Review Committee is hereby established and is 
responsible for the following functions:
    (1) To resolve all issues concerning implementation and 
administration of

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Executive Order 12356, Information Security Oversight Office Directive 
No. 1 concerning National Security Information and this regulation, 
including those issues concerning overclassification, failure to 
declassify, and delays in declassification not otherwise resolved (the 
compromise of National Security Information excepted).
    (2) To review all appeals of requests for record under the 
provisions of Mandatory Review for Declassification of Executive Order 
12356 and under the Freedom of Information Act (5 U.S.C. 552) when the 
proposed denial is based on their continued classification under 
Executive Order 12356.
    (3) To recommend to the Attorney General appropriate administrative 
sanctions to correct abuse or violation of any provision of Executive 
Order 12356, the Information Security Oversight Office Directive, or 
this regulation (the compromise of National Security Information 
excepted).
    (4) To review, on appeal, challenges to classification actions.
    (b) The voting members of the Department Review Committee shall 
consist of a senior representative from each of the following elements 
within the Department:
    (1) Office of the Deputy Attorney General;
    (2) Office of Legal Counsel;
    (3) Criminal Division;
    (4) Civil Division;
    (5) Justice Management Division;
    (6) Federal Bureau of Investigation;
    (7) Office of Intelligence Policy and Review.
    (c) The head of each component listed above will designate a voting 
member and an alternate in writing to the Chairman of the Department 
Review Committee who shall be designated by the Attorney General from 
among the voting members.
    (d) A quorum of the Department Review Committee shall consist of the 
voting members or alternates from at least four of the components listed 
above.
    (e) The Office of Information and Privacy shall provide the 
necessary administrative staff in support of the Department Review 
Committee.

[Order No. 1112-85, 50 FR 46388, Nov. 7, 1985, as amended by Order No. 
1187-87, 52 FR 17752, May 12, 1987]



Sec. 17.136  The Office of Professional Responsibility.

    The Office of Professional Responsibility shall investigate, or 
cause to be investigated, all suspected or known security violations or 
compromises of National Security Information detected within the 
Department or involving Department classified information, and shall 
make appropriate recommendations to the Attorney General concerning 
administrative and criminal sanctions.



Sec. 17.137  The Department Security Officer.

    (a) There shall be a Department Security Officer within the Justice 
Management Division who shall serve as the Director of the Security 
Staff or any successor organization. It shall be the duty of the 
Department Security Officer, and such assistants as he/she may 
designate, to supervise the administration of these regulations. Except 
as otherwise provided in this regulation, the Department Security 
Officer shall also carry out the functions and exercise the authority of 
the Attorney General and the Department Review Committee in the 
administration of this regulation within the Department.
    (b) As provided in Paragraph 6.c., Department Order 2600.2A, the 
Department Security Officer is also responsible for the development, 
supervision, and administration of Department Security Programs, 
including the promulgation of Department-wide policy and procedures and 
security directives.
    (c) With respect to questions of law and policy that pertain to 
safeguarding National Security Information, the Department Security 
Officer shall seek advice from the Office of Intelligence Policy and 
Review.



Sec. 17.138  Security education.

    The Department shall establish a security education program. The 
program established shall be sufficient to familiarize all necessary 
personnel with the provisions of this regulation

[[Page 350]]

and to impress upon them their individual security responsibilities. The 
security education program shall also provide for initial, refresher, 
and termination briefings as required.



Sec. 17.139  Oversight.

    A formal review to ensure compliance with the provisions of this 
regulation shall be conducted periodically. The audit will be performed 
by the Department Security Officer or such employees of the Offices, 
Boards, Divisions or Bureaus recommended by the head of the organization 
and designated, in writing, by the Department Security Officer.



Sec. 17.140  Heads of Offices, Boards, Divisions and Bureaus.

    Pursuant to Department Order 2600.2A, the heads of Offices, Boards, 
Divisions and Bureaus are responsible for effective implementation 
within their respective organizations of all Department security 
regulations and programs including the Department National Security 
Information Program. Heads of Offices, Boards, Divisions and Bureaus or 
their Security Programs Managers shall immediately report any violations 
of the provisions of this regulation to the Department Security Officer 
and the Office of Professional Responsibility.



Sec. 17.141  Security Programs Managers.

    Pursuant to Paragraph 6.d., Department Order 2600.2A, the Security 
Programs Managers possess the delegated responsibility for the 
management and coordination of the Department's Security Program within 
their organization. In such a capacity, the Security Programs Managers 
are responsible for observing, enforcing, and implementing security 
regulations or procedures pertaining to the classification, 
declassification, safeguarding, handling, and storage of classified 
National Security Information. Further, Security Programs Managers are 
responsible for ensuring that all employees are given adequate 
instructions in the provisions of Department security regulations and 
procedures. Security Programs Managers will at least annually review the 
requirements for access to classified information as a part of the 
continuous need-to-know evaluation. For employees not having a valid 
need-to-know for classified information, the Security Programs Manager 
is to initiate a memorandum to administratively withdraw or reduce the 
level of access authorized.



Sec. 17.142  Security Officers.

    Security Officers are responsible to their appointing authority for 
implementation and administration of the Document Security Program as 
delegated and assigned in accordance with Paragraph 6.e. of Department 
Order 2600.2A.



Sec. 17.143  Emergency planning.

    Each Office, Board, Division or Bureau shall have current plans for 
the protection, removal, or destruction of classified material in case 
of fire, natural disaster, civil disturbance, or enemy action. These 
plans shall include the disposition of classified information located in 
the United States and in foreign countries.



Sec. 17.144  Employees.

    (a) All persons granted access to classified information in the 
course of their employment at the Department of Justice are required to 
safeguard that information from unauthorized disclosure. This 
nondisclosure obligation is imposed by statutes, regulations, access 
agreements, and the fiduciary relationships of the persons who are 
entrusted with classified information in the performance of their 
duties. The nondisclosure obligation continues after Department of 
Justice employment terminates. In addition, each employee having access 
to classified information is personally responsible for becoming 
familiar with and adhering to the provisions of this regulation.
    (b) All employees (except those of the Federal Bureau of 
Investigation which has its own regulations on this matter) with access 
to National Security Information are required to report to the 
Department Security Officer any close personal or social relationship 
with a foreign national, including foreign press representatives. This 
requirement does not include contacts or relationships developed within 
the scope of

[[Page 351]]

employment and known to the employee's supervisor. Any contacts with a 
foreign national which result in unofficial requests for job-related 
information or suspicion on the part of the employee with regard to the 
protection of National Security Information must also be reported.
    (c) All employees of the Department (including contract employees 
and non-contractor personnel outside the Executive Branch) are to be 
aware of and comply with regulations concerning travel outside the 
continental United States. These regulations are summarized below:
    (1) Pursuant to the provisions of Director of Central Intelligence 
Directive 1/20 entitled, ``Security Policy Concerning Travel and 
Assignment of Personnel with Access to Sensitive Compartmented 
Information,'' Department personnel who have access to Sensitive 
Compartmented Information are required to advise the Department Security 
Office in writing, of any travel, whether official or unofficial, 
outside of the continental United States. Upon the determination of the 
Department Security Officer, it may be necessary that such personnel be 
provided a Defensive Security Briefing, a formal advisory which alerts 
traveling personnel to the potential for harassment, provocation, or 
entrapment.
    (2) Employees, contractor personnel and non-contractor personnel 
outside the Executive Branch having access to classified information 
under the control of the Department are also required to advise the 
Department Security Officer of any travel outside of the United States 
and its territories as soon as the travel plan is known. The Department 
Security Officer will determine whether a Defensive Security Briefing is 
necessary based upon the foreign countries to be visited, the 
sensitivity of the employee's current position and the level of access 
to classified information.
    (3) All regular or contract employees of the Department traveling to 
Communist-controlled countries for Government business or for personal 
reasons must be provided a Defensive Security Briefing whether or not 
they have access to classified information. The Security Programs 
Manager for the employee's organization is to be advised by the employee 
in advance of travel to allow adequate time to receive the briefing 
required by the sensitivity or critical nature of the employee's current 
position. Should an employee have particular security concerns about 
travel to other foreign countries, he may request guidance from the 
Department Security Officer.
    (d) All Department of Justice employees (including contract 
employees) granted access to classified information in the course of 
their employment with the Department, shall be required to sign a 
nondisclosure agreement concerning the protection of national security 
information and a statement that they understand and shall conform to 
the provisions of this regulation.
    (e) All employees with authorized access to Sensitive Compartmented 
Information shall be required to sign nondisclosure agreements 
containing a provision for prepublication review to assure deletion of 
Sensitive Compartmented Information and other classified information. 
Sensitive Compartmented Information is information that not only is 
classified for national security reasons as Top Secret, Secret, or 
Confidential, but also is subject to special access and handling 
requirements because it involves or derives from particularly sensitive 
intelligence sources and methods. The prepublication review provision 
will require that Department of Justice employees who are authorized 
access to Sensitive Compartmented Information submit certain material, 
described further in the agreement, to the Department prior to its 
publication to provide an opportunity for determining whether an 
unauthorized disclosure of Sensitive Compartmented Information or other 
classified information would occur as a consequence of its publication.
    (f) It must be recognized at the outset that it is not possible to 
anticipate each and every question that may arise under these 
agreements. The Department will endeavor to respond, however, as quickly 
as possible to specific inquiries by individuals concerning whether 
specific materials require prepublication review. Persons subject

[[Page 352]]

to these requirements are invited to discuss their plans for public 
disclosures of information that may be subject to these obligations with 
authorized Department representatives at an early stage, or as soon as 
circumstances indicate these policies must be considered. Except as 
provided in paragraph (s) of this section for FBI personnel, all 
questions concerning these obligations should be addressed to the 
Counsel for Intelligence Policy, Department of Justice, 10th & 
Constitution Avenue, NW., Washington, DC 20530; the official views of 
the Department on whether specific materials require prepublication 
review may only be expressed by the Counsel for Intelligence Policy and 
persons should not act in reliance upon the views of other Department 
personnel.
    (g) Prepublication review is required only as expressly provided for 
in a nondisclosure agreement. However, all persons who have had access 
to classified information have an obligation to avoid unauthorized 
disclosures of such information and are subject to enforcement actions 
if they disclose classified information in an unauthorized manner. 
Therefore, persons who have such access but are not otherwise required 
to submit to prepublication review under the terms of an employment or 
other nondisclosure agreement are encouraged to submit material for 
prepublication review voluntarily if they believe that such material may 
contain classified information. Where there is any doubt, individuals 
are urged to request prepublication review to avoid unauthorized 
disclosure and for their own protection.
    (h) The nature and extent of the material that is required to be 
submitted for prepublication review under nondisclosure agreements is 
expressly provided for in those agreements. It should be clear, however, 
that such requirements do not extend to any materials that exclusively 
contain information lawfully obtained at a time when the author has no 
employment, contract, or other relationship with the U.S. Government or 
that contain information exclusively acquired outside the scope of 
employment.
    (i) A person's obligation to submit material for prepublication 
review remains identical whether such person actually prepares the 
material or causes or assists another person, such as a ghost writer, 
spouse or friend, or editor in preparing the material. Material covered 
by a nondisclosure agreement requiring prepublication review must be 
submitted prior to discussing it with or showing it to a publisher, co-
author, or any other person who is not authorized to have access to it. 
In this regard, it should be noted that a failure to submit such 
material for prepublication review constitutes a breach of the 
obligation and exposes the author to remedial action even in cases where 
the published material does not actually contain Sensitive Compartmented 
Information or classified information. See Snepp v. United States, 444 
U.S. 507 (1980).
    (j) The requirement to submit material for prepublication review is 
not limited to any particular type of material or disclosure. Written 
materials include not only book manuscripts but all other forms of 
written materials intended for public disclosure, such as (but not 
limited to) newspaper columns, magazine articles, letters to the editor, 
book reviews, pamphlets, and scholarly papers. Because fictional 
treatment may convey factual information, fiction material must also be 
submitted if it is based upon or reflects information required to be 
submitted for review under the terms of a nondisclosure agreement that 
includes an express prepublication review provision.
    (k) Oral statements are also within the scope of a prepublication 
review requirement when based upon written materials, such as an outline 
of the statements to be made. There is no requirement to prepare written 
materials for review, however, unless there is reason to believe in 
advance that oral statements may contain Sensitive Compartmented 
Information or other information required to be submitted for review 
under the terms of nondisclosure agreement. Thus, a person may 
participate in an oral presentation where there is no opportunity for 
prior preparation (e.g., news interview, panel

[[Page 353]]

discussion) unless there is reason to believe in advance that such oral 
expression may contain Sensitive Compartmented Information or other 
information that must be submitted for review. This recognition of the 
problems inherent in oral representations does not, of course, exempt 
present or former employees from liability for any unauthorized 
disclosures of Sensitive Compartmented Information or classified 
information that may occur in the course of even extemporaneous oral 
expressions.
    (l) Written materials that consist solely of personal views, 
opinions or judgments and do not contain or imply any statement of fact 
that would fall within the terms of a nondisclosure agreement requiring 
prepublication review, are not subject to prepublication review 
requirements. For example, public speeches or publication of articles on 
such topics as proposed legislation or foreign policy do not require 
prepublication review as long as the material does not directly or 
implicitly constitute a factual statement that falls within the purview 
of a nondisclosure agreement requiring prepublication review. Of course, 
in some circumstances the expression of ``opinion'' may in fact disclose 
information that requires adherence to a prepublication review 
obligation required under a nondisclosure agreement. Again, consultation 
is urged to ensure conformity to this obligation.
    (m) Obviously, the purposes of prepublication review will be 
frustrated where the material in question already has been disseminated 
to unauthorized persons. In such cases, comparison of the material 
before and after the review would reveal to the unauthorized persons 
which items of information were considered to be classified and had been 
deleted at the Department's request. Consequently, the Department will 
consider a prepublication review obligation to have been breached in any 
case, whether or not the written material is subsequently submitted to 
the Department of prepublication review, where it already has been 
circulated to publishers or reviewers or has otherwise been made 
available to unauthorized persons. While the Department reserves the 
right to review such material for purposes of mitigating damage that may 
result from the disclosure of classified information, such action shall 
not prevent the U.S. Government and the Department from pursuing all 
appropriate remedies available under law as a consequence of the failure 
to submit the materials for prior review and any unauthorized disclosure 
of Sensitive Compartmented Information or classified information that 
may have occurred as a result.
    (n) Material submitted for prepublication review will be reviewed 
solely for the purpose of identifying and preventing the disclosure of 
Sensitive Compartmented Information and other classified information. 
This review will be conducted in an impartial manner without regard to 
whether the material is critical or favorable to the Department. No 
effort will be made to delete embarrassing or critical statements that 
are unclassified. Materials submitted for review will be disseminated to 
other persons or agencies only to the extent necessary to identify 
classified information.
    (o) The Counsel for Intelligence Policy (or, in the case of FBI 
employees, the FBI's Office of Congressional and Public Affairs) will 
respond substantively to prepublication review requests within 30 
working days of receipt of the submission. Priority shall be given to 
reviewing speeches, newspaper articles, and other materials that the 
author seeks to publish on an expedited basis. The Counsel's decisions 
may be appealed to the Deputy Attorney General, who will process appeals 
within 15 working days of receipt of the appeal. (See Sec. 17.144(s)(3) 
concerning appeal procedures for FBI emplolyees.) The Deputy Attorney 
General's decision is final and not subject to further administrative 
appeal. Persons who are dissatisfied with the final administrative 
decision may obtain judicial review either by filing an action for 
declaratory relief or by giving the Department notice of their intention 
to proceed despite the Department's requests for deletions of classified 
information, and a reasonable opportunity (30 working days) to file a 
civil action seeking a court order prohibiting disclosure. Of course, 
until

[[Page 354]]

any civil action is resolved, employees remain under an obligation not 
to disclose or publish information determined by the Government to be 
classified.
    (p) Nothing in this subpart should be construed to alter or waive 
the Department's authority to seek any remedy available to it to 
prohibit or punish the unauthorized disclosure of classified 
information.
    (q) A former Department of Justice employee who subsequently 
receives a security clearance or Sensitive Compartmented Information 
access approval from another department or agency is permitted to 
satisfy any obligation to the Department of Justice regarding 
prepublication review by making submissions to the department or agency 
that last granted the individual either a security clearance or 
Sensitive Compartmented Information access approval.
    (r) The obligations of Department of Justice employees as described 
in this subpart also apply with equal force to contractors who are 
authorized by the Department to have access to Sensitive Compartmented 
Information or other classified information.
    (s) The obligations of Department of Justice employees described in 
this subpart apply with equal force to employees of the Federal Bureau 
of Investigation with the following exceptions and provisos: 
    (1) Nothing in this subpart shall supersede or alter obligations 
assumed under the basic FBI employment agreement;
    (2) FBI employees required to sign nondisclosure agreements 
containing a provision for prepublication review pursuant to this 
subpart shall submit materials for review to the Assistant Director, 
Office of Congressional and Public Affairs. Such individuals shall also 
submit questions as to whether specific materials require prepublication 
review under such agreements to that Office for resolution. Where such 
questions raise policy questions or concern significant issues of 
interpretation under such an agreement, the Assistant Director, Office 
of Congressional and Public Affairs, shall consult with the Counsel for 
Intelligence Policy prior to responding to the inquiry;
    (3) Decisions of the Assistant Director, Office of Congressional and 
Public Affairs, concerning the deletion of classified information, may 
be appealed to the Director, Federal Bureau of Investigation, who will 
process appeals within 15 working days of receipt. Persons who are 
dissatisfied with the Director's decision may, at their option, appeal 
further to the Deputy Attorney General as provided in paragraph (o) of 
this section. Judicial review, as set forth in that paragraph, is 
available following final agency action in the form of a decision by the 
Director or, if the appeal process in paragraph (o) of this section is 
pursued, the Deputy Attorney General.



       Subpart L--Security Violations and Administrative Sanctions



Sec. 17.145  Violations subject to sanctions.

    (a) Officers and employees of the Department and its contractors, 
grantees and consultants are subject to appropriate administrative 
sanctions if they:
    (1) Knowingly, willfully or negligently and without authorization 
disclose to unauthorized persons information classified under Executive 
Order 12356 or prior orders or compromise classified information through 
negligence;
    (2) Knowingly and willfully classify or continue the classification 
of information in violation of Executive Order 12356, its implementing 
directives or this regulation; or
    (3) Knowingly and willfully violate any other provision of Executive 
Order 12356, any implementing directives or this regulation.
    (b) Sanctions include but are not limited to warning notices, 
reprimands, termination of classification authority, suspension or 
termination of security clearance, and as permitted by law, suspension 
without pay, forfeiture of pay, removal or dismissal. Sanctions will be 
imposed upon any person subject to these regulations and responsible for 
a violation specified under

[[Page 355]]

this subpart as determined by the appropriate Department official upon 
recommendation by the Office of Professional Responsibility. In cases 
involving the compromise of classified information, the Attorney 
General, upon receiving a recommendation from the Office of Professional 
Responsibility, shall determine and impose appropriate sanctions.



Sec. 17.146  Reporting security violations.

    Any person subject to these regulations who suspects or has 
knowledge of a violation pursuant to Sec. 17.145 (including the known or 
suspected loss or compromise of National Security Information) shall 
promptly report and confirm in writing the circumstances. If the loss 
itself is classifiable, secure telecommunications must be used for the 
initial report. The loss must be confirmed in writing to the Security 
Programs Manager of the Office, Board, Division or Bureau concerned or 
to that official's appropriate Security Programs Manager or 
representative. The Security Programs Manager of the organization under 
whose cognizance the loss occurred shall take the following action 
forthwith:
    (a) Prompt notification of the violation to the Department Security 
Officer, to the Office of Professional Responsibility, to the 
origination office and to any interested department or agency, if 
appropriate. In the event of disagreement as to which Office, Board 
Division or Bureau is the cognizant agency, the Department Security 
Officer will promptly decide and advise the concerned Security Programs 
Managers by telephone.
    (b) The submission of a written report to the Department Security 
Officer and the Office of Professional Responsibility. Such report shall 
include the date the violation occurred, if known; the date of the 
discovery of the violation; the specific identification of the 
information involved in the violation; the national security 
classification or any caveats regarding the information involved; the 
probability of loss or compromise; an assessment of the damage incurred 
from a national security standpoint; corrective measures taken; the 
person(s) responsible for the violation; and recommended administrative, 
disciplinary or legal action which should be taken. The written report 
should be submitted no later than ten working days after the discovery 
of the violation.
    (c) The Department Security Officer will promptly notify the 
Director of the Information Security Oversight Office of any violations 
of Sec. 17.145(a) (1) or (2).



Sec. 17.147  Corrective action.

    The Department Security Officer shall ensure that appropriate and 
prompt corrective action is taken whenever a violation of Sec. 17.145 
occurs. The Office of Professional Responsibility shall be informed by 
the Department Security Officer when such violations occur.



Sec. 17.148  Administrative discrepancies.

    Repeated administrative discrepancies in the marking and handling of 
classified documents and material such as failure to show classification 
authority, failure to apply internal classification markings and 
incorrect computation of dates for declassification, or other repeated 
disregard of requirements of this regulation that are determined not to 
constitute a violation under Sec. 17.145 may be grounds for adverse 
administrative action including warning, admonition, reprimand or 
termination of classification authority as determined appropriate by the 
head of the Office, Board, Division or Bureau concerned, in accordance 
with applicable policies and procedures.



PART 18--OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES--Table of Contents




Sec.
18.1  Purpose.
18.2  Application.
18.3  Definitions.
18.4  Preliminary hearings.
18.5  Hearings.
18.6  Conduct of hearings.
18.7  Discovery.
18.8  Recommended decision.
18.9  Final agency decision.
18.10  Rehearing.

    Authority: Secs. 802-804 of the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended (Pub. L. 90-
351, as amended by Pub. L. 93-83, Pub. L. 93-

[[Page 356]]

415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and 
Pub. L. 98-473).

    Secs. 223(d), 226 and 228(e) of the Juvenile Justice and Delinquency 
Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended (Pub. L. 93-
415, as amended by Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-509, and 
Pub. L. 98-473).

    Sec. 1407(F) of the Victims of Crime Act of 1984, 42 U.S.C. 10601, 
et seq. Pub. L. 98-473, 98 Stat. 2176.

    Source: 50 FR 28199, July 11, 1985, unless otherwise noted.



Sec. 18.1  Purpose.

    The purpose of this regulation is to implement the hearing and 
appeal procedures available to State block or formula grant applicants 
or recipients and existing categorical grantees under sections 802 
through 804 of title I of the Omnibus Crime Control and Safe Streets Act 
of 1968, as amended (Crime Control Act); sections 223(d), 226 and 228(e) 
of the Juvenile Justice and Delinquency Prevention Act of 1974, as 
amended (Juvenile Justice Act); and section 1407(F) of the Victims of 
Crime Act of 1984 (Victims of Crime Act).



Sec. 18.2  Application.

    (a) These procedures apply to all appeals and hearings of State 
formula or block grant applicants or recipients and all existing 
recipients of categorical grants or cooperative agreements requested 
under section 802 of the Justice Assistance Act; sections 223(d), 226 
and 228(e) of the Juvenile Justice Act; section 1407(F) of the Victims 
of Crime Act; the nondiscrimination provision of section 809 of the 
Crime Control Act, or the cross-referenced provisions of the Emergency 
Federal Law Enforcement Assistance Program. The method of notifying 
recipients of their non-compliance with section 809 (the 
nondiscrimination provison of the Crime Control Act and 28 CFR 42.208.
    (b) These procedures do not apply to hearings requested under the 
Public Safety Officers' Benefits Act, 42 U.S.C. 3796, et seq. The 
hearing and appeal procedures available to claimants denied benefits 
under that Act are set forth in the appendix to 28 CFR part 32.
    (c) These procedures do not apply to subgrant applicants or to 
recipients or third party beneficiaries of block or formula grants 
awarded to a State.
    (d) These procedures do not apply to categorical grant applicants.
    (e) These procedures do not apply to private sector/prison industry 
enhancement certification applicants; Regional Information Sharing 
Systems grant applicants; surplus Federal property certification 
applicants; or the State reimbursement program for Incarcerated Mariel-
Cubans.



Sec. 18.3  Definitions.

    (a) Block or formula grant applicant or recipient means an applicant 
for a grant awarded under the provisions of part D of the Crime Control 
Act; part B, subpart I of the Juvenile Justice Act; and sections 1403 
and 1404 of the Victims of Crime Act.
    (b) Categorical grant recipient means a public or private agency 
which has received a research, statistics, discretionary, technical 
assistance, special emphasis, training, concentration of Federal effort 
or other direct Federal assistance award of grant funds.
    (c) Categorical grant applicant means a public or private agency 
which has applied for a research, statistics, discretionary, technical 
assistance, special emphasis, training, concentration of Federal effort 
or other direct Federal assistance award of grant funds.
    (d) Grant includes cooperative agreements and means a direct award 
of financial assistance from OJP, BJA, NIJ, OJJDP, BJS or OVC.
    (e) Crime Control Act means the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended.
    (f) Juvenile Justice Act means the Juvenile Justice and Delinquency 
Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended.
    (g) Responsible agency means the organizational unit whose action is 
being appealed. This will be OJP, NIJ, BJS, OJJDP, BJA or OVC as 
appropriate. In hearings requested under the nondiscrimination 
provisions of the Crime Control Act, the responsible agency is OJP. In 
hearings requested to contest block or formula grant denials or 
terminations or categorical grant terminations, the responsible agency 
is the organizational unit that took the action at issue: OJP, BJA, 
OJJDP, NIJ, BJS or OVC.

[[Page 357]]

    (h) Responsible agency official means the Assistant Attorney 
General, Office of Justice Programs (OJP); the Director, Bureau of 
Justice Assistance (BJA); the Director, National Institute of Justice 
(NIJ); the Director, Bureau of Justice Statistics (BJS); the Director, 
Office for Victims of Crime (OVC); or the Administrator, Office of 
Juvenile Justice and Delinquency Prevention (OJJDP), as appropriate.
    (i) Sub-grant applicant or recipient means the State agency, unit of 
local government or private non-profit organization which applies for, 
or receives, a grant from a State agency which administers a block or 
formula grant.
    (j) Victims of Crime Act means the Victims of Crime Act of 1984, 42 
U.S.C. 10601, et seq.



Sec. 18.4  Preliminary hearings.

    (a) A grantee determined to be in noncompliance with the 
nondiscrimination provisions of the Crime Control Act, the Juvenile 
Justice Act or the Victims of Crime Act may request a preliminary 
hearing within 90 days after receipt of the notification of 
noncompliance.
    (b) The preliminary hearing shall be initiated within 30 days of the 
request.
    (c) The sole issue to be adjudicated by the hearing officer is 
whether the grantee is likely to prevail on the merits of the issue at a 
full hearing requested under 28 CFR 42.215. The grantee shall have the 
burden of persuading the hearing officer that the grantee is likely to 
prevail on the merits.
    (d) The hearing officer may permit the parties to argue the issue by 
briefs, oral argument, or the presentation of testimony and exhibits. 
The hearing officer shall accept as evidence documents and other 
exhibits which can reasonably be authenticated and subjected to cross-
examination at a full hearing.
    (e) The hearing officer shall make the final decision on the issue 
within 15 days after the conclusion of the preliminary hearing.



Sec. 18.5  Hearings.

    (a) Whenever the responsible agency official finds that there has 
been a substantial failure to comply with:
    (1) The provisions of the Crime Control Act, the Juvenile Justice 
Act, or the Victims of Crime Act;
    (2) Regulations promulgated by the responsible agency pursuant to 
appropriate statutory authority; or
    (3) A plan or application submitted in accordance with the 
provisions of the Crime Control Act; the Juvenile Justice Act, the 
Victims of Crime Act, or the provisions of any other applicable Federal 
act, regulation or guideline;

the responsible agency shall notify the grantee or applicant State that 
all or part of its grant or subgrant will be terminated or suspended 
until the responsible agency is satisfied that there is no longer such 
failure.
    (b) The notice shall contain:
    (1) A statement of facts sufficient to inform the party of the 
reasons for the agency's proposed action;
    (2) A statement of the nature of the action proposed to be taken; 
and
    (3) A reference of the available appeal rights.
    (c) If a block or formula grant applicant or recipient or a 
categorical grant recipient wishes to appeal any action covered by 
Sec. 18.5(a) it may request a review of the issues in controversy within 
30 days after notice of termination, noncompliance or denial by writing 
to:

Office of General Counsel, office of Justice Programs, U.S. Department 
of Justice, 633 Indiana Avenue NW., Room 1268, Washington, DC 20531.

    (d) The request for a review shall contain:
    (1) A factual statement sufficient to inform the responsible agency 
of the nature of the issues involved;
    (2) A recital of the relief requested; and
    (3) A request for an oral hearing, or in the alternative, an 
opportunity to submit only written information or argument to a hearing 
officer.
    (e) If the responsible agency official determines that basis for the 
appeal in Sec. 18.5(c) would not, if substantiated, establish a basis 
for grant award or continuation, the official may take final agency 
action on the appeal.
    (f) The responsible agency or its representative may attempt to 
informally resolve a controversy arising under

[[Page 358]]

this section prior to initiating a hearing. Unless it is expressly 
agreed otherwise, an agreement to attempt informal resolution does not 
waive the right to the formal hearing.
    (g) If the responsible agency or its representaive does not receive 
a request for a review within 30 days after notice has been sent, the 
opportunity for review is waived.
    (h) All oral hearings requested under this section shall be held in 
Washington, DC, unless the hearing officer decides that the hearing 
could be conducted in a more expeditious, fair, or cost effective manner 
in another location.
    (i) The responsible agency may suspend all or part of the grantee's 
funding pending the completion of the review process. If, at the 
conclusion of the review process, the responsible agency determines that 
the grantee is in compliance, it shall restore all previously suspended 
funding to the grantee.
    (j) Any person may request the responsible agency official to 
determine whether a grantee has failed to comply with the terms of the 
statute under which the grant was awarded, agency regulations or the 
terms and conditions of the grant. The responsible agency may, in its 
discretion, conduct an investigation into the matter and, if warranted, 
make a determination of noncompliance. Only a grantee determined to be 
in noncompliance may request a compliance hearing.



Sec. 18.6  Conduct of hearings.

    (a) A hearing officer appointed by the responsible agency official 
shall preside over the hearing. The hearing officer may be an 
administrative law judge, or an employee of the Department of Justice 
who was not involved in the administration, investigation or prosecution 
of the matter at issue. In hearings held under the nondiscrimination 
provisions of the Crime Control Act, the Juvenile Justice Act or the 
Victims of Crime Act, the hearing officer shall be an administrative law 
judge.
    (b) If the hearing officer appointed is unacceptable to the 
appellant, it shall promptly inform the responsible agency official of 
the reasons for its position. The responsible agency official may select 
another hearing officer, or affirm the initial selection. In either 
case, the official shall inform the appellant of the reasons for the 
decision.
    (c) The hearing officer shall have the following powers and duties:
    (1) The power to hold hearings and regulate the course of the 
hearings and the conduct of the parties and their counsel;
    (2) The power to sign and issue subpoenas and other orders requiring 
access to records;
    (3) The power to administer oaths and affirmations;
    (4) The power to examine witnesses;
    (5) The power to rule on offers of proof and to receive evidence;
    (6) The power to take depositions or to cause depositions to be 
taken;
    (7) The power to hold conferences under Sec. 18.6(d) for the 
settlement or simplification of the issues or for any other proper 
purpose;
    (8) The power to consider and rule upon procedural requests and 
other motions, including motions for default;
    (9) The duty to conduct fair and impartial hearings;
    (10) The duty to maintain order;
    (11) The duty to avoid unnecessary delay; and
    (12) All powers and duties reasonably necessary to perform the 
functions enumerated in subsections (1)-(11).
    (d) The hearing officer may call upon the parties to consider:
    (1) Simplification or clarification of the issues;
    (2) Stipulations, admissions, agreements on documents, or other 
understandings which will expedite conduct of the hearing;
    (3) Limitation of the number of witnesses and of cumulative 
evidence;
    (4) Settlement of all or part of the issues in dispute;
    (5) Such other matters as may aid in the disposition of the case.
    (e) All hearings under this part shall be public unless otherwise 
ordered by the responsible agency official.
    (f) The hearing shall be conducted in conformity with sections 5-8 
of the Administrative Procedure Act, 5 U.S.C. 554-557.
    (g) The responsible agency shall have the burden of going forward 
with the

[[Page 359]]

evidence and shall generally present its evidence first.
    (h) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules designed to assure production 
of the most credible evidence available and to subject testimony to 
cross-examination shall be applied where reasonably necessary by the 
hearing officer. The hearing officer may exclude irrelevant, immaterial, 
or unduly repetitious evidence. All documents and other evidence offered 
or taken for the record shall be open to examination by the parties, and 
opportunity shall be given to refute facts and arguments advanced on 
either side of the issues. A transcript shall be made of the oral 
evidence except to the extent the substance thereof is stipulated for 
the record.
    (i) During the time a proceeding is before a hearing officer, all 
motions shall be addressed to the hearing officer and, if within his or 
her delegated authority, shall be ruled upon. Any motion upon which the 
hearing officer has no authority to rule shall be certified to the 
responsible agency official with a recommendation. The opposing party 
may answer within such time as may be designated by the hearing officer. 
The hearing officer may permit further replies by both parties.



Sec. 18.7  Discovery.

    (a)(1) At any time after the initiation of the proceeding, the 
hearing officer may order, by subpoena if necessary, the taking of a 
deposition and the production of relevant documents by the deponent. 
Such order may be entered upon a showing that the deposition is 
necessary for discovery purposes, and that such discovery could not be 
accomplished by voluntary methods. Such an order may also be entered in 
extraordinary circumstances to preserve relevant evidence upon a showing 
that there is substantial reason to believe that such evidence could not 
be presented through a witness at the hearing. The decisive factors for 
a determination under this subsection, however, shall be fairness to all 
parties and the requirements of due process. Depositions may be taken 
orally or upon written questions before any person who has the power to 
administer oaths.
    (2) Each deponent shall be duly sworn, and any adverse party shall 
have the right to cross-examine. Objections to questions or documents 
shall be in short form, stating the grounds upon which objections are 
made. The questions propounded and the answers thereto, together with 
all objections made (but not including argument or debate), shall be 
reduced to writing and certified by the officer before whom the 
deposition was taken. Thereafter, the officer shall forward the 
deposition and one (1) copy thereof to the party at whose instance the 
deposition was taken and shall forward one (1) copy to the 
representative of the other party.
    (3) A deposition may be admitted into evidence as against any party 
who was present or represented at the taking of the deposition, or who 
had due notice thereof, if the hearing officer finds that there are 
sufficient reasons for admission and that the admission of the evidence 
would be fair to all parties and comport with the requirements of due 
process.
    (b)(1) At any time after the initiation of the appeal, any party may 
serve upon any other party written interrogatories to be answered by the 
party served, or by an authorized representative of the party if the 
party served is a corporate or governmental entity. The party served 
shall furnish all information which is available to it.
    (2) Each interrogatory shall be answered separately and fully in 
writing under oath by the party addressed or by an authorized 
representative. The time and manner of returning the interrogatory shall 
be prescribed by the hearing officer.



Sec. 18.8  Recommended decision.

    Within a reasonable time after the close of the record of the 
hearings conducted under Sec. 18.6, the hearing officer shall submit 
findings of fact, conclusions of law, and a recommended order to the 
responsible agency official, in writing. The hearing officer shall 
promptly make copies of these documents available to the parties.

[[Page 360]]



Sec. 18.9  Final agency decision.

    (a) In hearings conducted under Sec. 18.6, the responsible agency 
official shall make the final agency decision, on the basis of the 
record, findings, conclusions, and recommendations presented by the 
hearing examiner.
    (b) Prior to making a final decision, the responsible agency 
official shall give the parties an opportunity to submit the following, 
within thirty (30) days after the submission of the hearing officer's 
recommendations:
    (1) Proposed findings and determinations;
    (2) Exceptions to the recommendations of the hearing officer; and
    (3) Supporting reasons for the exceptions or proposed findings or 
determinations; and
    (4) Final briefs summarizing the arguments presented at the hearing.
    (c) All determinations, findings and conclusions made by the 
responsible agency official shall be final and conclusive upon the 
responsible agency and all appellants.



Sec. 18.10  Rehearing.

    (a) Any appellant dissatisfied with a final agency decision under 
Sec. 18.9 may, within 30 days after the notice of the final agency 
decision is sent, request the responsible agency official to re-review 
the record, and present additional evidence which is appropriate and 
pertinent to support a different decision.
    (b) If the responsible agency official finds that the appellant has:
    (1) Presented evidence or argument which is sufficiently significant 
to require the conduct of further proceedings; or
    (2) Shown some defect in the conduct of the initial hearing 
sufficient to cause substantial unfairness or an erroneous finding in 
that hearing, the responsible agency official may require that another 
oral hearing be held on one or more of the issues in controversy, or 
permit the dissatisfied party to present further evidence or argument in 
writing.
    (c) Any rehearing ordered by the responsible agency official shall 
be conducted pursuant to Secs. 18.5--18.8.



PART 19--USE OF PENALTY MAIL IN THE LOCATION AND RECOVERY OF MISSING CHILDREN--Table of Contents




Sec.
19.1  Purpose.
19.2  Contact person for Missing Children Penalty Mail Program.
19.3  Policy.
19.4  Cost and percentage estimates.
19.5  Report to the Office of Juvenile Justice and Delinquency 
          Prevention.
19.6  Responsibility of DOJ organizational units for program 
          implementation and implementation procedures.

    Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301.

    Source: Order No. 1239-87, 52 FR 45174, Nov. 25, 1987, unless 
otherwise noted.



Sec. 19.1  Purpose.

    This regulation, providing for a Missing Children Penalty Mail 
Program in the Department of Justice (DOJ), is intended to comply with 
the regulation requirement set forth in section 1(a) of Public Law 99-
87, which adds a new section 3220 to title 39, U.S. Code. The regulation 
also implements the Office of Juvenile Justice and Delinquency 
Prevention (OJJDP) guideline (50 FR 46622) promulgated under the 
authority of 39 U.S.C. 3220(a)(1), and is intended to assist in the 
location and recovery of missing children through the use of DOJ penalty 
mail.



Sec. 19.2  Contact person for Missing Children Penalty Mail Program.

    The DOJ contact person for the Missing Children Penalty Mail Program 
is: Patricia Schellman, General Services Staff, Justice Management 
Division, U.S. Department of Justice, 10th and Constitution Ave., NW., 
Washington, DC 20530, telephone number (202) 633-2353.



Sec. 19.3  Policy.

    (a) The Department of Justice will supplement and expand the 
national effort to assist in the location and recovery of missing 
children by maximizing the economical use of missing children 
photographs and biographical information in domestic penalty mail 
directed to members of the public.
    (b) Because the use of inserts printed with missing children 
photographs and

[[Page 361]]

biographical information has been determined to be the most cost 
effective method for general application of the program, DOJ's first 
priority will be to insert, manually and via automated inserting 
equipment, photographs and biographical data related to missing children 
in a variety of types of penalty mail envelopes. These include:
    (1) Standard letter-size envelopes (4\1/2\" x 9\1/2\");
    (2) Document-size envelopes (9\1/2\" x 12", 9\1/2\ x 11\1/2\", 10" x 
13"); and
    (3) Other envelopes (misc. size).
    (c)(1) Maximum consideration will be given to the use of missing 
children materials with high volume printing plant or distribution plan 
mail that will be sent to the public or to Federal, State or local 
government agencies. Every effort will be made to use the most cost 
effective and efficient methods of obtaining, distributing, and 
disseminating missing children information.
    (2) In instances when the printing of photograph(s) and biographical 
information directly on self-mailers and other publications 
(newsletters, bulletins, etc.) and/or on penalty mail envelopes proves 
to be practical and cost effective, this method may also be used. 
Photographs and biographical information related to missing children may 
be printed on the three types of penalty mail envelopes listed above.
    (d) Missing children information shall not be placed on the 
``Penalty Indicia'', ``OCR Read Area'', ``Bar Code Read Area'', and 
``Return Address'' areas of standard letter-size envelopes per appendix 
A of the OJJDP guideline as published in the November 8, 1985, Federal 
Register (50 FR 46625).
    (e) The National Center for Missing and Exploited Children (National 
Center) will be the sole source from which DOJ will acquire the camera-
ready and other photographic and biographical materials to be 
disseminated for use by DOJ organizational units. When printing missing 
children information, DOJ will select subjects in accordance with the 
schedule published by the National Center.
    (f) DOJ will remove all printed penalty mail envelopes and other 
materials from circulation or other use (i.e.: Use or destroy) within a 
three month period from the date the National Center receives 
information or notice that a child whose photograph and biographical 
information have been made available to DOJ has been recovered or that 
the parent(s) or guardian's permission to use the child's photograph and 
biographical information has been withdrawn. The National Center will be 
responsible for immediately notifying the DOJ contact person, in 
writing, of the need to withdraw penalty mail envelopes and other 
materials related to a particular child from circulation. Photographs 
which were reasonably current as of the time of the child's 
disappearance shall be the only acceptable form of visual media or 
pictorial likeness used on or in DOJ penalty mail.
    (g) DOJ will give priority to penalty mail that:
    (1) Is addressed to members of the public and will be received in 
the United States, its territories and possessions; and
    (2) Is widely disseminated and read by DOJ employees such as inter- 
and intra-agency publications and other media.
    (h) All DOJ employee suggestions, ideas or recommendations for 
innovative, cost-effective techniques for implementation of the Missing 
Children Penalty Mail Program should be forwarded to the DOJ contact 
person. DOJ Mail Managers shall hold biannual meetings to discuss the 
status of implementation of the current plan, and to consider 
recommendations to improve future plan implementation.
    (i) This shall be the sole DOJ regulation implementing this program.



Sec. 19.4  Cost and percentage estimates.

    It is estimated that this program will cost DOJ $78,000 during the 
initial year. This figure is based on estimates of printing, inserting, 
and administrative costs. It is DOJ's objective that 50 percent of DOJ 
penalty mail contain missing children photographs and biographical 
information by the end of the first year of the program.

[[Page 362]]



Sec. 19.5  Report to the Office of Juvenile Justice and Delinquency Prevention.

    DOJ will compile and submit to OJJDP, by June 30, 1987, a 
consolidated report on its experience in implementation of 39 U.S.C. 
3220(a)(2), the OJJDP guidelines and the DOJ regulation. The report will 
consolidate information gathered from individual DOJ organizational 
units and cover the period February 5, 1986 through March 31, 1987. The 
report will provide the following information:
    (a) DOJ's experience in implementation, including problems 
encountered, successful and/or innovative methods adopted to use missing 
children photographs and information on or in penalty mail, the 
estimated number of pieces of penalty mail containing such information, 
and the estimated percentage of total agency penalty mail, domestic 
penalty mail, and domestic penalty mail directed to members of the 
public which this number represents.
    (b) The estimated total cost to implement the program, with 
supporting detail (for example, printing cost, hours of labor or labor 
cost, cost related to withdrawal of photographs, etc.).
    (c) Recommendations for changes in the program which would make it 
more effective.



Sec. 19.6  Responsibility of DOJ organizational units for program implementation and implementation procedures.

    (a) The General Services Staff, Justice Management Division (JMD), 
will be the liaison between the National Center and the principal 
organizational units of the Department. The General Services Staff, JMD 
shall be responsible for:
    (1) Developing and disseminating Departmentwide guidelines and 
monitoring the implementation of the Missing Children Penalty Mail 
Program.
    (2) Ordering camera-ready copies and other photographic and 
biographical material from the National Center, using the format 
established by the Center, and distributing the material within the 
Department of Justice.
    (3) Immediately notifying DOJ components, in writing, of the need to 
use or withdraw from circulation, within 90 days, penalty mail 
envelopes, inserts and other material related to a recovered child or 
child whose parent(s) or guardian has withdrawn consent to use the 
photograph and biographical information. See 28 CFR 0.1, Organizational 
Structure of the Department of Justice, for a listing of DOJ principal 
organizational units designated as components.
    (4) Collecting, analyzing and consolidating cost, mail volume data 
and other program related information and reporting to OJJDP, by June 
30, 1987, on DOJ's experience in implementing the program.
    (5) Conducting biannual meetings with selected components contacts 
to discuss current plans and solicit suggestions and/or recommendations 
for innovative and cost effective techniques to enhance the success of 
the program.
    (6) Providing guidance and assistance to components in internal 
program development and implementation.
    (7) Maintaining a list of DOJ personnel assigned to serve as Missing 
Children Program Coordinators for the components.
    (b) Bureau Mail Managers and components Executive/Administrative 
Officers shall be responsible for:
    (1) Establishing and implementing internal procedures and guidelines 
for the dissemination and use of missing children photographs and 
biographical information on or in domestic penalty mail. For example, 
the Bureau Mail Manager will provide guidance to Bureau offices on the 
types of missing children information which are available for use on or 
in penalty mail and establish procedures for obtaining and using the 
information, as appropriate.
    (2) Identifying and reviewing publications and other Bureau media 
for suitable use in disseminating missing children photographs and 
information and obtaining approval for its use from the originating 
office.
    (3) Ensuring that all printed penalty mail envelopes, inserts, and 
other penalty mail material containing photographs and biographical 
information on a missing child are used or removed from circulation or 
other use within 90 days from the date of DOJ notification

[[Page 363]]

by the National Center to withdraw material for that child.
    (4) Designating Missing Children Coordinator(s) at headquarters and 
in each component and field office participating in the program.
    (5) Arranging for printing and/or acquisition through designated 
channels, adequate supplies of inserts or penalty mail envelopes and 
other materials containing photographs and biographical data related to 
missing children.
    (6) Collecting and reporting to the General Services Staff, Justice 
Management Division, the information identified in Sec. 19.5 of this 
part as required for inclusion in the DOJ's consolidated report to 
OJJDP.
    (c) Component and Bureau Missing Children Program Coordinators shall 
be responsible for:
    (1) Insuring that adequate supplies of envelopes or inserts are 
ordered, received or disseminated for use within the organizational unit 
or requesting camera-ready copy for printing from the DOJ contact person 
using a written form to be established by DOJ Guideline.
    (2) Ensuring that the acquisition and use of missing children 
information through inserts or printing of these materials in 
publications or on envelopes is approved by appropriate authority within 
the organizational unit.
    (3) Maintaining and disseminating supplies of inserts, envelopes, 
and camera-ready copy (for publications) to personnel who prepare 
domestic penalty mail for dispatch through the U.S. Postal Service.
    (4) Notifying employees within their organizational unit to use or 
remove from circulation all printed penalty mail envelopes, inserts, and 
other material containing a photograph and biographical information on a 
missing child within 90 days from the date of DOJ notification by the 
National Center to withdraw material for that child.
    (5) Serving as the central point of contact within their 
organizations for all matters relating to the Missing Children Penalty 
Mail Program.
    (6) Collecting and reporting essential management information 
relating to the implemention of this program within their organizational 
unit and reporting this information to the appropriate Bureau Mail 
Manager or component Executive/Administrative Officer.
    (d) Missing children pictures and biographical information shall not 
be:
    (1) Printed on penalty mail envelopes, inserts, or other materials 
which are ordered and/or stocked in quantities which represent more than 
a 90 day supply.
    (2) Printed on blank pages or covers of publications that may be 
included in the Superintendent of Documents' Sales Program or are to be 
distributed to depository Libraries.
    (3) Inserted in any envelope and/or publication the contents of 
which may be construed to be inappropriate for association with the 
Missing Children Penalty Mail Program.
    (e) Each component shall provide the General Services Staff, Justice 
Management Division, with the name(s), telephone number(s) and mailing 
address(es) of each designated Missing Children Program Coordinator 
within 30 days of the effective date of this regulation.
    (f) Each component shall submit a quarterly report to the General 
Services Staff, Justice Management Division, within 5 days after the 
close of each Fiscal Year quarter providing the specific information 
identified in Sec. 19.5 concerning implementation and participation in 
the program.



PART 20--CRIMINAL JUSTICE INFORMATION SYSTEMS--Table of Contents




                      Subpart A--General Provisions

Sec.
20.1  Purpose.
20.2  Authority.
20.3  Definitions.

 Subpart B--State and Local Criminal History Record Information Systems

20.20  Applicability.
20.21  Preparation and submission of a Criminal History Record 
          Information Plan.
20.22  Certification of compliance.
20.23  Documentation: Approval by OJARS.
20.24  State laws on privacy and security.
20.25  Penalties.

[[Page 364]]

 Subpart C--Federal System and Interstate Exchange of Criminal History 
                           Record Information

20.30  Applicability.
20.31  Responsibilities.
20.32  Includable offenses.
20.33  Dissemination of criminal history record information.
20.34  Individual's right to access criminal history record information.
20.35  National Crime Information Center Advisory Policy Board.
20.36  Participation in the Computerized Criminal History Program.
20.37  Responsibility for accuracy, completeness, currency.
20.38  Sanction for noncompliance.

Appendix to Part 20--Commentary on Selected Sections of the Regulations 
          on Criminal History Record Information Systems

    Authority: 28 U.S.C. 534; Public Law 92-544, 86 Stat. 1115; 42 
U.S.C. 3711, et seq.; Public Law 99-169, 99 Stat. 1002, 1008-1011, as 
amended by Public Law 99-569, 100 Stat. 3190, 3196.

    Source: Order No. 601-75, 40 FR 22114, May 20, 1975, unless 
otherwise noted.



                      Subpart A--General Provisions

    Source: 41 FR 11714, Mar. 19, 1976, unless otherwise noted.



Sec. 20.1   Purpose.

    It is the purpose of these regulations to assure that criminal 
history record information wherever it appears is collected, stored, and 
disseminated in a manner to insure the completeness, integrity, accuracy 
and security of such information and to protect individual privacy.



Sec. 20.2   Authority.

    These regulations are issued pursuant to sections 501 and 524(b) of 
the Omnibus Crime Control and Safe Streets Act of 1968, as amended by 
the Crime Control Act of 1973, Public Law 93-83, 87 Stat. 197, 42 U.S.C. 
3701, et seq. (Act), 28 U.S.C. 534, and Public Law 92-544, 86 Stat. 
1115.



Sec. 20.3   Definitions.

    As used in these regulations:
    (a) Criminal history record information system means a system 
including the equipment, facilities, procedures, agreements, and 
organizations thereof, for the collection, processing, preservation or 
dissemination of criminal history record information.
    (b) Criminal history record information means information collected 
by criminal justice agencies on individuals consisting of identifiable 
descriptions and notations of arrests, detentions, indictments, 
informations, or other formal criminal charges, and any disposition 
arising therefrom, sentencing, correctional supervision, and release. 
The term does not include identification information such as fingerprint 
records to the extent that such information does not indicate 
involvement of the individual in the criminal justice system. State and 
Federal Inspector General Offices are included.
    (c) Criminal justice agency means:
    (1) Courts;
    (2) A government agency or any subunit thereof which performs the 
administration of criminal justice pursuant to a statute or executive 
order, and which allocates a substantial part of its annual budget to 
the administration of criminal justice.
    (d) The administration of criminal justice means performance of any 
of the following activities: Detection, apprehension, detention, 
pretrial release, post-trial release, prosecution, adjudication, 
correctional supervision, or rehabilitation of accused persons or 
criminal offenders. The administration of criminal justice shall include 
criminal identification activities and the collection, storage, and 
dissemination of criminal history record information. State and Federal 
Inspector General Offices are included.
    (e) Disposition means information disclosing that criminal 
proceedings have been concluded, including information disclosing that 
the police have elected not to refer a matter to a prosecutor or that a 
prosecutor has elected not to commence criminal proceedings and also 
disclosing the nature of the termination in the proceedings; or 
information disclosing that proceedings have been indefinitely postponed 
and also disclosing the reason for such postponement. Dispositions shall 
include, but not be limited to, acquittal, acquittal by reason of 
insanity, acquittal by reason of mental incompetence, case

[[Page 365]]

continued without finding, charge dismissed, charge dismissed due to 
insanity, charge dismissed due to mental incompetency, charge still 
pending due to insanity, charge still pending due to mental 
incompetence, guilty plea, nolle prosequi, no paper, nolo contendere 
plea, convicted, youthful offender determination, deceased, deferred 
disposition, dismissed--civil action, found insane, found mentally 
incompetent, pardoned, probation before conviction, sentence commuted, 
adjudication withheld, mistrial--defendant discharged, executive 
clemency, placed on probation, paroled, or released from correctional 
supervision.
    (f) Statute means an Act of Congress or State legislature of a 
provision of the Constitution of the United States or of a State.
    (g) State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, and any territory or 
possession of the United States.
    (h) An executive order means an order of the President of the United 
States or the Chief Executive of a State which has the force of law and 
which is published in a manner permitting regular public access thereto.
    (i) Act means the Omnibus Crime Control and Safe Streets Act, 42 
U.S.C. 3701, et seq., as amended.
    (j) Department of Justice criminal history record information system 
means the Identification Division and the Computerized Criminal History 
File systems operated by the Federal Bureau of Investigation.
    (k) Nonconviction data means arrest information without disposition 
if an interval of one year has elapsed from the date of arrest and no 
active prosecution of the charge is pending; or information disclosing 
that the police have elected not to refer a matter to a prosecutor, or 
that a prosecutor has elected not to commence criminal proceedings, or 
that proceedings have been indefinitely postponed, as well as all 
acquittals and all dismissals.
    (l) Direct access means having the authority to access the criminal 
history record data base, whether by manual or automated methods.

[41 FR 11714, Mar. 19, 1976, as amended at 45 FR 40114, June 13, 1980; 
Order No. 960-81, 46 FR 52357, Oct. 27, 1981]



 Subpart B--State and Local Criminal History Record Information Systems

    Source: 41 FR 11715, Mar. 19, 1976, unless otherwise noted.



Sec. 20.20   Applicability.

    (a) The regulations in this subpart apply to all State and local 
agencies and individuals collecting, storing, or disseminating criminal 
history record information processed by manual or automated operations 
where such collection, storage, or dissemination has been funded in 
whole or in part with funds made available by the Law Enforcement 
Assistance Administration subsequent to July 1, 1973, pursuant to title 
I of the Act. Use of information obtained from the FBI Identification 
Division or the FBI/NCIC system shall also be subject to limitations 
contained in subpart C.
    (b) The regulations in this subpart shall not apply to criminal 
history record information contained in:
    (1) Posters, announcements, or lists for identifying or apprehending 
fugitives or wanted persons;
    (2) Original records of entry such as police blotters maintained by 
criminal justice agencies, compiled chronologically and required by law 
or long standing custom to be made public, if such records are organized 
on a chronological basis;
    (3) Court records of public judicial proceedings;
    (4) Published court or administrative opinions or public judicial, 
administrative or legislative proceedings;
    (5) Records of traffic offenses maintained by State departments of 
transportation, motor vehicles or the equivalent thereof for the purpose 
of regulating the issuance, suspension, revocation, or renewal of 
driver's, pilot's or other operators' licenses;
    (6) Announcements of executive clemency.

[[Page 366]]

    (c) Nothing in these regulations prevents a criminal justice agency 
from disclosing to the public criminal history record information 
related to the offense for which an individual is currently within the 
criminal justice system. Nor is a criminal justice agency prohibited 
from confirming prior criminal history record information to members of 
the news media or any other person, upon specific inquiry as to whether 
a named individual was arrested, detained, indicted, or whether an 
information or other formal charge was filed, on a specified date, if 
the arrest record information or criminal record information disclosed 
is based on data excluded by paragraph (b) of this section. The 
regulations do not prohibit the dissemination of criminal history record 
information for purposes of international travel, such as issuing visas 
and granting of citizenship.



Sec. 20.21   Preparation and submission of a Criminal History Record Information Plan.

    A plan shall be submitted to OJARS by each State on March 16, 1976, 
to set forth all operational procedures, except those portions relating 
to dissemination and security. A supplemental plan covering these 
portions shall be submitted no later than 90 days after promulgation of 
these amended regulations. The plan shall set forth operational 
procedures to--
    (a) Completeness and accuracy. Insure that criminal history record 
information is complete and accurate.
    (1) Complete records should be maintained at a central State 
repository. To be complete, a record maintained at a central State 
repository which contains information that an individual has been 
arrested, and which is available for dissemination, must contain 
information of any dispositions occurring within the State within 90 
days after the disposition has occurred. The above shall apply to all 
arrests occurring subsequent to the effective date of these regulations. 
Procedures shall be established for criminal justice agencies to query 
the central repository prior to dissemination of any criminal history 
record information unless it can be assured that the most up-to-date 
disposition data is being used. Inquiries of a central State repository 
shall be made prior to any dissemination except in those cases where 
time is of the essence and the repository is technically incapable of 
responding within the necessary time period.
    (2) To be accurate means that no record containing criminal history 
record information shall contain erroneous information. To accomplish 
this end, criminal justice agencies shall institute a process of data 
collection, entry, storage, and systematic audit that will minimize the 
possibility of recording and storing inaccurate information and upon 
finding inaccurate information of a material nature, shall notify all 
criminal justice agencies known to have received such information.
    (b) Limitations on dissemination. Insure that dissemination of 
nonconviction data has been limited, whether directly or through any 
intermediary only to:
    (1) Criminal justice agencies, for purposes of the administration of 
criminal justice and criminal justice agency employment;
    (2) Individuals and agencies for any purpose authorized by statute, 
ordinance, executive order, or court rule, decision, or order, as 
construed by appropriate State or local officials or agencies;
    (3) Individuals and agencies pursuant to a specific agreement with a 
criminal justice agency to provide services required for the 
administration of criminal justice pursuant to that agreement. The 
agreement shall specifically authorize access to data, limit the use of 
data to purposes for which given, insure the security and 
confidentiality of the data consistent with these regulations, and 
provide sanctions for violation thereof;
    (4) Individuals and agencies for the express purpose of research, 
evaluative, or statistical activities pursuant to an agreement with a 
criminal justice agency. The agreement shall specifically authorize 
access to data, limit the use of data to research, evaluative, or 
statistical purposes, insure the confidentiality and security of the 
data consistent with these regulations and with section 524(a) of the 
Act and any regulations implementing section

[[Page 367]]

524(a), and provide sanctions for the violation thereof. These 
dissemination limitations do not apply to conviction data.
    (c) General policies on use and dissemination. (1) Use of criminal 
history record information disseminated to noncriminal justice agencies 
shall be limited to the purpose for which it was given.
    (2) No agency or individual shall confirm the existence or 
nonexistence of criminal history record information to any person or 
agency that would not be eligible to receive the information itself.
    (3) Subsection (b) does not mandate dissemination of criminal 
history record information to any agency or individual. States and local 
governments will determine the purposes for which dissemination of 
criminal history record information is authorized by State law, 
executive order, local ordinance, court rule, decision or order.
    (d) Juvenile records. Insure that dissemination of records 
concerning proceedings relating to the adjudication of a juvenile as 
delinquent or in need or supervision (or the equivalent) to noncriminal 
justice agencies is prohibited, unless a statute, court order, rule or 
court decision specifically authorizes dissemination of juvenile 
records, except to the same extent as criminal history records may be 
disseminated as provided in paragraph (b) (3) and (4) of this section.
    (e) Audit. Insure that annual audits of a representative sample of 
State and local criminal justice agencies chosen on a random basis shall 
be conducted by the State to verify adherence to these regulations and 
that appropriate records shall be retained to facilitate such audits. 
Such records shall include, but are not limited to, the names of all 
persons or agencies to whom information is disseminated and the date 
upon which such information is disseminated. The reporting of a criminal 
justice transaction to a State, local or Federal repository is not a 
dissemination of information.
    (f) Security. Wherever criminal history record information is 
collected, stored, or disseminated, each State shall insure that the 
following requirements are satisfied by security standards established 
by State legislation, or in the absence of such legislation, by 
regulations approved or issued by the Governor of the State.
    (1) Where computerized data processing is employed, effective and 
technologically advanced software and hardware designs are instituted to 
prevent unauthorized access to such information.
    (2) Access to criminal history record information system facilities, 
systems operating environments, data file contents whether while in use 
or when stored in a media library, and system documentation is 
restricted to authorized organizations and personnel.
    (3)(i) Computer operations, whether dedicated or shared, which 
support criminal justice information systems, operate in accordance with 
procedures developed or approved by the participating criminal justice 
agencies that assure that:
    (a) Criminal history record information is stored by the computer in 
such manner that it cannot be modified, destroyed, accessed, changed, 
purged, or overlaid in any fashion by non-criminal justice terminals.
    (b) Operation programs are used that will prohibit inquiry, record 
updates, or destruction of records, from any terminal other than 
criminal justice system terminals which are so designated.
    (c) The destruction of records is limited to designated terminals 
under the direct control of the criminal justice agency responsible for 
creating or storing the criminal history record information.
    (d) Operational programs are used to detect and store for the output 
of designated criminal justice agency employees all unauthorized 
attempts to penetrate any criminal history record information system, 
program or file.
    (e) The programs specified in paragraphs (f)(3)(i) (b) and (d) of 
this section are known only to criminal justice agency employees 
responsible for criminal history record information system control or 
individuals and agencies pursuant to a specific agreement with the 
criminal justice agency to provide such programs and the program(s) are 
kept continuously under maximum security conditions.

[[Page 368]]

    (f) Procedures are instituted to assure that an individual or agency 
authorized direct access is responsible for (1) the physical security of 
criminal history record information under its control or in its custody 
and (2) the protection of such information from unauthorized access, 
disclosure or dissemination.
    (g) Procedures are instituted to protect any central repository of 
criminal history record information from unauthorized access, theft, 
sabotage, fire, flood, wind, or other natural or manmade disasters.
    (ii) A criminal justice agency shall have the right to audit, 
monitor and inspect procedures established above.
    (4) The criminal justice agency will:
    (i) Screen and have the right to reject for employment, based on 
good cause, all personnel to be authorized to have direct access to 
criminal history record information.
    (ii) Have the right to initiate or cause to be initiated 
administrative action leading to the transfer or removal of personnel 
authorized to have direct access to such information where such 
personnel violate the provisions of these regulations or other security 
requirements established for the collection, storage, or dissemination 
of criminal history record information.
    (iii) Institute procedures, where computer processing is not 
utilized, to assure that an individual or agency authorized direct 
access is responsible for
    (a) The physical security of criminal history record information 
under its control or in its custody and
    (b) The protection of such information from unauthorized access, 
disclosure, or dissemination.
    (iv) Institute procedures, where computer processing is not 
utilized, to protect any central repository of criminal history record 
information from unauthorized access, theft, sabotage, fire, flood, 
wind, or other natural or manmade disasters.
    (v) Provide that direct access to criminal history record 
information shall be available only to authorized officers or employees 
of a criminal justice agency and, as necessary, other authorized 
personnel essential to the proper operation of the criminal history 
record information system.
    (5) Each employee working with or having access to criminal history 
record information shall be made familiar with the substance and intent 
of these regulations.
    (g) Access and review. Insure the individual's right to access and 
review of criminal history information for purposes of accuracy and 
completeness by instituting procedures so that--
    (1) Any individual shall, upon satisfactory verification of his 
identity, be entitled to review without undue burden to either the 
criminal justice agency or the individual, any criminal history record 
information maintained about the individual and obtain a copy thereof 
when necessary for the purpose of challenge or correction;
    (2) Administrative review and necessary correction of any claim by 
the individual to whom the information relates that the information is 
inaccurate or incomplete is provided;
    (3) The State shall establish and implement procedures for 
administrative appeal where a criminal justice agency refuses to correct 
challenged information to the satisfaction of the individual to whom the 
information relates;
    (4) Upon request, an individual whose record has been corrected 
shall be given the names of all non-criminal justice agencies to whom 
the data has been given;
    (5) The correcting agency shall notify all criminal justice 
recipients of corrected information; and
    (6) The individual's right to access and review of criminal history 
record information shall not extend to data contained in intelligence, 
investigatory, or other related files and shall not be construed to 
include any other information than that defined by Sec. 20.3(b).

[41 FR 11715, Mar. 19, 1976, as amended at 42 FR 61595, Dec. 6, 1977]



Sec. 20.22   Certification of compliance.

    (a) Each State to which these regulations are applicable shall with 
the submission of its plan provide a certification that to the maximum 
extent feasible action has been taken to comply with the procedures set 
forth in the plan. Maximum extent feasible, in this subsection, means 
actions which can be taken to comply with the procedures

[[Page 369]]

set forth in the plan that do not require additional legislative 
authority or involve unreasonable cost or do not exceed existing 
technical ability.
    (b) The certification shall include--
    (1) An outline of the action which has been instituted. At a 
minimum, the requirements of access and review under Sec. 20.21(g) must 
be completely operational;
    (2) A description of any legislation or executive order, or attempts 
to obtain such authority that has been instituted to comply with these 
regulations;
    (3) A description of the steps taken to overcome any fiscal, 
technical, and administrative barriers to the development of complete 
and accurate criminal history record information;
    (4) A description of existing system capability and steps being 
taken to upgrade such capability to meet the requirements of these 
regulations; and
    (5) A listing setting forth categories of non-criminal justice 
dissemination. See Sec. 20.21(b).



Sec. 20.23   Documentation: Approval by OJARS.

    Within 90 days of the receipt of the plan, OJARS shall approve or 
disapprove the adequacy of the provisions of the plan and certification. 
Evaluation of the plan by OJARS will be based upon whether the 
procedures set forth will accomplish the required objectives. The 
evaluation of the certification(s) will be based upon whether a good 
faith effort has been shown to initiate and/or further compliance with 
the plan and regulations. All procedures in the approved plan must be 
fully operational and implemented by March 1, 1978. A final 
certification shall be submitted on March 1, 1978.

Where a State finds it is unable to provide final certification that all 
required procedures as set forth in Sec. 20.21 will be operational by 
March 1, 1978, a further extension of the deadline will be granted by 
OJARS upon a showing that the State has made a good faith effort to 
implement these regulations to the maximum extent feasible. 
Documentation justifying the request for the extension including a 
proposed timetable for full compliance must be submitted to OJARS by 
March 1, 1978. Where a State submits a request for an extension, the 
implementation date will be extended an additional 90 days while OJARS 
reviews the documentation for approval or disapproval. To be approved, 
such revised schedule must be consistent with the timetable and 
procedures set out below:
    (a) July 31, 1978--Submission of certificate of compliance with:
    (1) Individual access, challenge, and review requirements;
    (2) Administrative security;
    (3) Physical security to the maximum extent feasible.
    (b) Thirty days after the end of a State's next legislative 
session--Submission to OJARS of a description of State policy on 
dissemination of criminal history record information.
    (c) Six months after the end of a State's legislative session--
Submission to OJARS of a brief and concise description of standards and 
operating procedures to be followed by all criminal justice agencies 
covered by OJARS regulations in complying with the State policy on 
dissemination.
    (d) Eighteen months after the end of a State's legislative session--
Submission to OJARS of a certificate attesting to the conduct of an 
audit of the State central repository and of a random number of other 
criminal justice agencies in compliance with OJARS regulations.

[41 FR 11715, Mar. 19, 1976, as amended at 42 FR 61596, Dec. 6, 1977]



Sec. 20.24   State laws on privacy and security.

    Where a State originating criminal history record information 
provides for sealing or purging thereof, nothing in these regulations 
shall be construed to prevent any other State receiving such 
information, upon notification, from complying with the originating 
State's sealing or purging requirements.



Sec. 20.25   Penalties.

    Any agency or individual violating subpart B of these regulations 
shall be subject to a fine not to exceed $10,000. In addition, OJARS may 
initiate fund cut-off procedures against recipients of OJARS assistance.

[[Page 370]]



 Subpart C--Federal System and Interstate Exchange of Criminal History 
                           Record Information



Sec. 20.30   Applicability.

    The provisions of this subpart of the regulations apply to any 
Department of Justice criminal history record information system that 
serves criminal justice agencies in two or more states and to Federal, 
state and local criminal justice agencies to the extent that they 
utilize the services of Department of Justice criminal history record 
information systems. These regulations are applicable to both manual and 
automated systems.



Sec. 20.31   Responsibilities.

    (a) The Federal Bureau of Investigation (FBI) shall operate the 
National Crime Information Center (NCIC), the computerized information 
system which includes telecommunications lines and any message switching 
facilities which are authorized by law or regulation to link local, 
state and Federal criminal justice agencies for the purpose of 
exchanging NCIC-related information. Such information includes 
information in the Computerized Criminal History (CCH) File, a 
cooperative Federal-State program for the interstate exchange of 
criminal history record information. CCH shall provide a central 
repository and index of criminal history record information for the 
purpose of facilitating the interstate exchange of such information 
among criminal justice agencies.
    (b) The FBI shall operate the Identification Division to perform 
identification and criminal history record information functions for 
Federal, state and local criminal justice agencies, and for noncriminal 
justice agencies and other entities where authorized by Federal statute, 
state statute pursuant to Public Law 92-544 (86 Stat. 1115), 
Presidential executive order, or regulation of the Attorney General of 
the United States.
    (c) The FBI Identification Division shall maintain the master 
fingerprint files on all offenders included in the NCIC/CCH File for the 
purposes of determining first offender status and to identify those 
offenders who are unknown in states where they become criminally active 
but known in other states through prior criminal history records.



Sec. 20.32   Includable offenses.

    (a) Criminal history record information maintained in any Department 
of Justice criminal history record information system shall include 
serious and/or significant adult and juvenile offenses.
    (b) Excluded from such a system are arrests and court actions 
limited only to nonserious charges, e.g., drunkenness, vagrancy, 
disturbing the peace, curfew violation, loitering, false fire alarm, 
non-specific charges of suspicion or investigation, traffic violations 
(except data will be included on arrests for manslaughter, driving under 
the influence of drugs or liquor, and hit and run).
    (c) The exclusions enumerated above shall not apply to Federal 
manual criminal history record information collected, maintained and 
compiled by the FBI prior to the effective date of these Regulations.

[Order No. 601-75, 40 FR 22114, May 20, 1975, as amended by Order No. 
1601-92, 57 FR 31318, July 15, 1992]



Sec. 20.33   Dissemination of criminal history record information.

    (a) Criminal history record information contained in any Department 
of Justice criminal history record information system will be made 
available:
    (1) To criminal justice agencies for criminal justice purposes; and
    (2) To Federal agencies authorized to receive it pursuant to Federal 
statute or Executive order.
    (3) Pursuant to Public Law 92-544 (86 Stat. 1115) for use in 
connection with licensing or local/state employment or for other uses 
only if such dissemination is authorized by Federal or state statutes 
and approved by the Attorney General of the United States. Refer to 
Sec. 50.12 of this chapter for dissemination guidelines relating to 
requests processed under this paragraph.
    (4) For issuance of press releases and publicity designed to effect 
the apprehension of wanted persons in connection with serious or 
significant offenses.

[[Page 371]]

    (b) The exchange of criminal history record information authorized 
by paragraph (a) of this section is subject to cancellation if 
dissemination is made outside the receiving departments or related 
agencies.
    (c) Nothing in these regulations prevents a criminal justice agency 
from disclosing to the public factual information concerning the status 
of an investigation, the apprehension, arrest, release, or prosecution 
of an individual, the adjudication of charges, or the correctional 
status of an individual, which is reasonably contemporaneous with the 
event to which the information relates.

[Order No. 601-75, 40 FR 22114, May 20, 1975, as amended by Order No. 
1438-90, 55 FR 32075, Aug. 7, 1990]



Sec. 20.34   Individual's right to access criminal history record information.

    (a) Any individual, upon request, upon satisfactory verification of 
his identity by fingerprint comparison and upon payment of any required 
processing fee, may review criminal history record information 
maintained about him in a Department of Justice criminal history record 
information system.
    (b) If, after reviewing his identification record, the subject 
thereof believes that it is incorrect or incomplete in any respect and 
wishes changes, corrections or updating of the alleged deficiency, he 
should make application directly to the agency which contributed the 
questioned information. The subject of a record may also direct his 
challenge as to the accuracy or completeness of any entry on his record 
to the Assistant Director of the FBI Identification Division, 
Washington, DC 20537. The FBI will then forward the challenge to the 
agency which submitted the data requesting that agency to verify or 
correct the challenged entry. If the contributing agency corrects the 
record, it shall promptly notify the FBI and, upon receipt of such a 
notification, the FBI will make any changes necessary in accordance with 
the correction supplied by the contributor of the original information.

[Order No. 601-75, 40 FR 22114, May 20, 1975, as amended by Order No. 
805-78, 43 FR 50173, Oct. 27, 1978]



Sec. 20.35   National Crime Information Center Advisory Policy Board.

    There is established an NCIC Advisory Policy Board whose purpose is 
to recommend to the Director, FBI, general policies with respect to the 
philosophy, concept and operational principles of NCIC, particularly its 
relationships with local and state systems relating to the collection, 
processing, storage, dissemination and use of criminal history record 
information contained in the CCH File.
    (a)(1) The Board shall be composed of twenty-six members, twenty of 
whom are elected by the NCIC users from across the entire United States 
and six who are appointed by the Director of the FBI. The six appointed 
members, two each from the judicial, the corrections and the prosecutive 
sectors of the criminal justice community, shall serve for an 
indeterminate period of time. The twenty elected members shall serve for 
a term of two years commencing on January 5th of each odd numbered year.
    (2) The Board shall be representative of the entire criminal justice 
community at the state and local levels and shall include representation 
from law enforcement, the courts and corrections segments of this 
community.
    (b) The Board shall review and consider rules, regulations and 
procedures for the operation of the NCIC.
    (c) The Board shall consider operational needs of criminal justice 
agencies in light of public policies, and local, state and Federal 
statutes and these regulations.
    (d) The Board shall review and consider, on a continuing basis, 
security and privacy aspects of the NCIC system and shall, as needed, 
appoint ad hoc subcommittees to provide information and recommendations 
to the Board concerning security and privacy of the NCIC system.
    (e) The Board shall recommend standards for participation by 
criminal justice agencies in the NCIC system.
    (f) The Board shall report directly to the Director of the FBI or 
his designated appointee.
    (g) The Board shall operate within the purview of the Federal 
Advisory Committee Act, Public Law 92-463, 86 Stat. 770.

[[Page 372]]

    (h) The Director, FBI, shall not adopt recommendations of the Board 
which would be in violation of these regulations.

(28 U.S.C. 509, 510, 534; 5 U.S.C. 301)

[Order No. 601-75, 40 FR 22114, May 20, 1975, as amended by Order No. 
819-79, 44 FR 12031, Mar. 5, 1979]



Sec. 20.36   Participation in the Computerized Criminal History Program.

    (a) For the purpose of acquiring and retaining direct access to CCH 
File each criminal justice agency shall execute a signed agreement with 
the Director, FBI, to abide by all present rules, policies and 
procedures of the NCIC, as well as any rules, policies and procedures 
hereinafter approved by the NCIC Advisory Policy Board and adopted by 
the NCIC.
    (b) Entry of criminal history record information into the CCH File 
will be accepted only from an authorized state or Federal criminal 
justice control terminal. Terminal devices in other authorized criminal 
justice agencies will be limited to inquiries.



Sec. 20.37   Responsibility for accuracy, completeness, currency.

    It shall be the responsibility of each criminal justice agency 
contributing data to any Department of Justice criminal history record 
information system to assure that information on individuals is kept 
complete, accurate and current so that all such records shall contain to 
the maximum extent feasible dispositions for all arrest data included 
therein. Dispositions should be submitted by criminal justice agencies 
within 120 days after the disposition has occurred.



Sec. 20.38   Sanction for noncompliance.

    The services of Department of Justice criminal history record 
information systems are subject to cancellation in regard to any agency 
or entity which fails to comply with the provisions of subpart C.

Appendix to Part 20--Commentary on Selected Sections of the Regulations 
             on Criminal History Record Information Systems

    Subpart A--Sec. 20.3(b). The definition of criminal history record 
information is intended to include the basic offender-based transaction 
statistics/computerized criminal history. (OBTS/CCH) data elements. If 
notations of an arrest, disposition, or other formal criminal justice 
transactions occur in records other than the traditional ``rap sheet'' 
such as arrest reports, any criminal history record information 
contained in such reports comes under the definition of this subsection.
    The definition, however, does not extend to other information 
contained in criminal justice agency reports. Intelligence or 
investigative information (e.g., suspected criminal activity, 
associates, hangouts, financial information, ownership of property and 
vehicles) is not included in the definition of criminal history 
information.
    Sec. 20.3(c). The definitions of criminal justice agency and 
administration of criminal justice of Sec. 20.3(c) must be considered 
together. Included as criminal justice agencies would be traditional 
police, courts, and corrections agencies as well as subunits of 
noncriminal justice agencies performing a function of the administration 
of criminal justice pursuant to Federal or State statute or executive 
order. The above subunits of noncriminal justice agencies would include 
for example, the Office of Investigation of the U.S. Department of 
Agriculture which has as its principal function the collection of 
evidence for criminal prosecutions of fraud. Also included under the 
definition of criminal justice agency are umbrella-type administrative 
agencies supplying criminal history information services such as New 
York's Division of Criminal Justice Services.
    Sec. 20.3(e). Disposition is a key concept in section 524(b) of the 
Act and in Sec. 20.21(a)(1) and Sec. 20.21(b). It, therefore is defined 
in some detail. The specific dispositions listed in this subsection are 
examples only and are not to be construed as excluding other unspecified 
transactions concluding criminal proceedings within a particular agency.
    Sec. 20.3(k). The different kinds of acquittals and dismissals as 
delineated in Sec. 20.3(e) are all considered examples of nonconviction 
data.
    Subpart B--Sec. 20.20(a). These regulations apply to criminal 
justice agencies receiving funds under the Omnibus Crime Control and 
Safe Streets Act for manual or automated systems subsequent to July 1, 
1973. In the hearings on the regulations, a number of those testifying 
challenged LEAA's authority to promulgate regulations for manual systems 
by contending that section 524(b) of the Act governs criminal history 
information contained in automated systems.
    The intent of section 524(b), however, would be subverted by only 
regulating automated systems. Any agency that wished to circumvent the 
regulations would be able to create duplicate manual files for purposes

[[Page 373]]

contrary to the letter and spirit of the regulations.
    Regulation of manual systems, therefore, is authorized by section 
524(b) when coupled with section 501 of the Act which authorizes the 
Administration to establish rules and regulations ``necessary to the 
exercise of its functions * * *.''
    The Act clearly applies to all criminal history record information 
collected, stored, or disseminated with LEAA support subsequent to July 
1, 1973.
    Limitations as contained in subpart C also apply to information 
obtained from the FBI Identification Division or the FBI/NCIC System.
    Sec. 20.20 (b) and (c). Section 20.20 (b) and (c) exempts from 
regulations certain types of records vital to the apprehension of 
fugitives, freedom of the press, and the public's right to know. Court 
records of public judicial proceedings are also exempt from the 
provisions of the regulations.
    Section 20.20(b)(2) attempts to deal with the problem of 
computerized police blotters. In some local jursidictions, it is 
apparently possible for private individuals and/or newsmen upon 
submission of a specific name to obtain through a computer search of the 
blotter a history of a person's arrests. Such files create a partial 
criminal history data bank potentially damaging to individual privacy, 
especially since they do not contain final dispositions. By requiring 
that such records be accessed solely on a chronological basis, the 
regulations limit inquiries to specific time periods and discourage 
general fishing expeditions into a person's private life.
    Subsection 20.20(c) recognizes that announcements of ongoing 
developments in the criminal justice process should not be precluded 
from public disclosure. Thus, announcements of arrest, convictions, new 
developments in the course of an investigation may be made. It is also 
permissible for a criminal justice agency to confirm certain matters of 
public record information upon specific inquiry. Thus, if a question is 
raised: ``Was X arrested by your agency on January 3, 1975'' and this 
can be confirmed or denied by looking at one of the records enumerated 
in subsection (b) above, then the criminal justice agency may respond to 
the inquiry. Conviction data as stated in Sec. 20.21(b) may be 
disseminated without limitation.
    Sec. 20.21. The regulations deliberately refrain from specifying who 
within a State should be responsible for preparing the plan. This 
specific determination should be made by the Governor. The State has 90 
days from the publication of these revised regulations to submit the 
portion of the plan covering Secs. 20.21(b) and 20.21(f).
    Sec. 20.21(a)(1). Section 524(b) of the Act requires that LEAA 
insure criminal history information be current and that, to the maximum 
extent feasible, it contain disposition as well as current data.
    It is, however, economically and administratively impractical to 
maintain complete criminal histories at the local level. Arrangements 
for local police departments to keep track of dispositions by agencies 
outside of the local jurisdictions generally do not exist. It would, 
moreover, be bad public policy to encourage such arrangements since it 
would result in an expensive duplication of files.
    The alternatives to locally kept criminal histories are records 
maintained by a central State repository. A central State repository is 
a State agency having the function pursuant to a statute or executive 
order of maintaining comprehensive statewide criminal history record 
information files. Ultimately, through automatic data processing the 
State level will have the capability to handle all requests for in-State 
criminal history information.
    Section 20.20(a)(1) is written with a centralized State criminal 
history repository in mind. The first sentence of the subsection states 
that complete records should be retained at a central State repository. 
The word ``should'' is permissive; it suggests but does not mandate a 
central State repository.
    The regulations do require that States establish procedures for 
State and local criminal justice agencies to query central State 
repositories wherever they exist. Such procedures are intended to insure 
that the most current criminal justice information is used.
    As a minimum, criminal justice agencies subject to these regulations 
must make inquiries of central State repositories whenever the 
repository is capable of meeting the user's request within a reasonable 
time. Presently, comprehensive records of an individual's transactions 
within a State are maintained in manual files at the State level, if at 
all. It is probably unrealistic to expect manual systems to be able 
immediately to meet many rapid-access needs of police and prosecutors. 
On the other hand, queries of the State central repository for most 
noncriminal justice purposes probably can and should be made prior to 
dissemination of criminal history record information.
    Sec. 20.21(b). The limitations on dissemination in this subsection 
are essential to fulfill the mandate of section 524(b) of the Act which 
requires the Administration to assure that the ``privacy of all 
information is adequately provided for and that information shall only 
be used for law enforcement and criminal justice and other lawful 
purposes.'' The categories for dissemination established in this section 
reflect suggestions by hearing witnesses and respondents submitting 
written commentary.

[[Page 374]]

    The regulations distinguish between conviction and nonconviction 
information insofar as dissemination is concerned. Conviction 
information is currently made available without limitation in many 
jurisdictions. Under these regulations, conviction data and pending 
charges could continue to be disseminated routinely. No statute, 
ordinance, executive order, or court rule is necessary in order to 
authorize dissemination of conviction data. However, nothing in the 
regulations shall be construed to negate a State law limiting such 
dissemination.
    After December 31, 1977, dissemination of nonconviction data would 
be allowed, if authorized by a statute, ordinance, executive order, or 
court rule, decision, or order. The December 31, 1977, deadline allows 
the States time to review and determine the kinds of dissemination for 
non-criminal justice purposes to be authorized. When a State enacts 
comprehensive legislation in this area, such legislation will govern 
dissemination by local jurisdictions within the State. It is possible 
for a public record law which has been construed by the State to 
authorize access to the public of all State records, including criminal 
history record information, to be considered as statutory authority 
under this subsection. Federal legislation and executive orders can also 
authorize dissemination and would be relevant authority.
    For example, Civil Service suitablity investigations are conducted 
under Executive Order 10450. This is the authority for most 
investigations conducted by the Commission. Section 3(a) of 10450 
prescribes the minimum scope of investigation and requires a check of 
FBI fingerprint files and written inquiries to appropriate law 
enforcement agencies.
    Sec. 20.21(b)(3). This subsection would permit private agencies such 
as the Vera Institute to receive criminal histories where they perform a 
necessary administration of justice function such as pretrial release. 
Private consulting firms which commonly assist criminal justice agencies 
in information systems development would also be included here.
    Sec. 20.21(b)(4). Under this subsection, any good faith researchers 
including private individuals would be permitted to use criminal history 
record information for research purposes. As with the agencies 
designated in Sec. 20.21(b)(3) researchers would be bound by an 
agreement with the disseminating criminal justice agency and would, of 
course, be subject to the sanctions of the Act.
    The drafters of the regulations expressly rejected a suggestion 
which would have limited access for research purposes to certified 
research organizations. Specifically ``certification'' criteria would 
have been extremely difficult to draft and would have inevitably led to 
unnecessary restrictions on legitimate research.
    Section 524(a) of the Act which forms part of the requirements of 
this section states:

``Except as provided by Federal law other than this title, no officer or 
employee of the Federal Government, nor any recipient of assistance 
under the provisions of this title shall use or reveal any research or 
statistical information furnished under this title by any person and 
identifiable to any specific private person for any purpose other than 
the purpose for which it was obtained in accordance with this title. 
Copies of such information shall be immune from legal process, and shall 
not, without the consent of the person furnishing such information, be 
admitted as evidence or used for any purpose in any action suit, or 
other judicial or administrative proceedings.''

LEAA anticipates issuing regulations, pursuant to section 524(a) as soon 
as possible.
    Sec. 20.21(c)(2). Presently some employers are circumventing State 
and local dissemination restrictions by requesting applicants to obtain 
an official certification of no criminal record. An employer's request 
under the above circumstances gives the applicant the unenviable choice 
of invasion of his privacy or loss of possible job opportunities. Under 
this subsection routine certifications of no record would no longer be 
permitted. In extraordinary circumstances, however, an individual could 
obtain a court order permitting such a certification.
    Sec. 20.21(c)(3). The language of this subsection leaves to the 
States the question of who among the agencies and individuals listed in 
Sec. 20.21(b) shall actually receive criminal records. Under these 
regulations a State could place a total ban on dissemination if it so 
wished. The State could, on the other hand, enact laws authorizing any 
member of the private sector to have access to non-conviction data.
    Sec. 20.21(d). Non-criminal justice agencies will not be able to 
receive records of juveniles unless the language of a statute or court 
order, rule, or court decision specifies that juvenile records shall be 
available for dissemination. Perhaps the most controversial part of this 
subsection is that it denies access to records of juveniles by Federal 
agencies conducting background investigations for eligibility to 
classified information under existing legal authority.
    Sec. 20.21(e) Since it would be too costly to audit each criminal 
justice agency in most States (Wisconsin, for example, has 1075 criminal 
justice agencies) random audits of a ``representative sample'' of 
agencies are the next best alternative. The term ``representative 
sample'' is used to insure that audits do not simply focus on certain 
types of agencies. Although this subsection requires that there be 
records kept with the names of all persons or agencies to whom 
information is disseminated, criminal justice agencies are

[[Page 375]]

not required to maintain dissemination logs for ``no record'' responses.
    Sec. 20.21(f). Requirements are set forth which the States must meet 
in order to assure that criminal history record information is 
adequately protected. Automated systems may operate in shared 
environments and the regulations require certain minimum assurances.
    Sec. 20.21(g)(1). A ``challenge'' under this section is an oral or 
written contention by an individual that his record is inaccurate or 
incomplete; it would require him to give a correct version of his record 
and explain why he believes his version to be correct. While an 
individual should have access to his record for review, a copy of the 
record should ordinarily only be given when it is clearly established 
that it is necessary for the purpose of challenge.
The drafters of the subsection expressly rejected a suggestion that 
would have called for a satisfactory verification of identity by 
fingerprint comparison. It was felt that States ought to be free to 
determine other means of identity verification.
    Sec. 20.21(g)(5). Not every agency will have done this in the past, 
but henceforth adequate records including those required under 20.21(e) 
must be kept so that notification can be made.
    Sec. 20.21(g)(6). This section emphasizes that the right to access 
and review extends only to criminal history record information and does 
not include other information such as intelligence or treatment data.
    Sec. 20.22(a). The purpose for the certification requirement is to 
indicate the extent of compliance with these regulations. The term 
``maximum extent feasible'' acknowledges that there are some areas such 
as the completeness requirement which create complex legislative and 
financial problems.

    Note: In preparing the plans required by these regulations, States 
should look for guidance to the following documents: National Advisory 
Commission on Criminal Justice Standards and Goals, Report on the 
Criminal Justice System; Project SEARCH: Security and Privacy 
Considerations in Criminal History Information Systems, Technical 
Reports No. 2 and No. 13; Project SEARCH: A Model State Act for Criminal 
Offender Record Information, Technical Memorandum No. 3; and Project 
SEARCH: Model Administrative Regulations for Criminal Offender Record 
Information, Technical Memorandum No. 4.
    Subpart C--Sec. 20.31. Defines the criminal history record 
information system operated by the Federal Bureau of Investigation. Each 
state having a record in the Computerized Criminal History (CCH) file 
must have a fingerprint card on file in the FBI Identification Division 
to support the CCH record concerning the individual.
    Paragraph (b) is not intended to limit the identification services 
presently performed by the FBI for Federal, state and local agencies.
    Sec. 20.32. The grandfather clause contained in the third paragraph 
of this section is designed, from a practical standpoint, to eliminate 
the necessity of deleting from the FBI's massive files the non-
includable offenses which were stored prior to February, 1973.
In the event a person is charged in court with a serious or significant 
offense arising out of an arrest involving a non-includable offense, the 
non-includable offense will appear in the arrest segment of the CCH 
record.
    Section 20.33. Incorporates provisions cited in 28 CFR 50.12 
regarding dissemination of identification records outside the Federal 
Government for noncriminal justice purposes.
    Sec. 20.34. The procedures by which an individual may obtain a copy 
of his manual identification record are particularized in 28 CFR 16.30-
34.
The procedures by which an individual may obtain a copy of his 
Computerized Criminal History record are as follows:
If an individual has a criminal record supported by fingerprints and 
that record has been entered in the NCIC CCH File, it is available to 
that individual for review, upon presentation of appropriate 
identification, and in accordance with applicable state and Federal 
administrative and statutory regulations.
Appropriate identification includes being fingerprinted for the purpose 
of insuring that he is the individual that he purports to be. The record 
on file will then be verified as his through comparison of fingerprints.
    Procedure. 1. All requests for review must be made by the subject of 
his record through a law enforcement agency which has access to the NCIC 
CCH File. That agency within statutory or regulatory limits can require 
additional identification to assist in securing a positive 
identification.
    2. If the cooperating law enforcement agency can make an 
identification with fingerprints previously taken which are on file 
locally and if the FBI identification number of the individual's record 
is available to that agency, it can make an on-line inquiry of NCIC to 
obtain his record on-line or, if it does not have suitable equipment to 
obtain an on-line response, obtain the record from Washington, DC, by 
mail. The individual will then be afforded the opportunity to see that 
record.
    3. Should the cooperating law enforcement agency not have the 
individual's fingerprints on file locally, it is necessary for that 
agency to relate his prints to an existing record by having his 
identification prints compared

[[Page 376]]

with those already on file in the FBI, or, possibly, in the State's 
central identification agency.
    4. The subject of the requested record shall request the appropriate 
arresting agency, court, or correctional agency to initiate action 
necessary to correct any stated inaccuracy in his record or provide the 
information needed to make the record complete.
    Sec. 20.36. This section refers to the requirements for obtaining 
direct access to the CCH file.
    Sec. 20.37. The 120-day requirement in this section allows 30 days 
more than the similar provision in subpart B in order to allow for 
processing time which may be needed by the states before forwarding the 
disposition to the FBI.

[Order No. 662-76, 41 FR 34949, Aug. 18, 1976, as amended by Order No. 
1438-90, 55 FR 32075, Aug. 7, 1990]



PART 21--WITNESS FEES--Table of Contents




Sec.
21.1  Definitions.
21.2  Employees of the United States serving as witnesses.
21.3  Aliens.
21.4  Fees and allowances of fact witnesses.
21.5  Use of table of distances.
21.6  Proceedings in forma pauperis.
21.7  Certification of witness attendance.

    Authority: 28 U.S.C. 509, 510, 1821-1825, 5 U.S.C. 301.

    Source: 51 FR 16171, May 1, 1986, unless otherwise noted.



Sec. 21.1  Definitions.

    (a) Agency proceeding. An agency process as defined by 5 U.S.C. 551 
(5), (7) and (9).
    (b) Alien. Any person who is not a citizen or nantional of the 
United States.
    (c) Judicial proceeding. Any action or suit, including any 
condemnation, preliminary, informational or other proceeding of a 
judicial nature. Examples of the latter include, but are not limited to, 
hearings and conferences before a committing court, magistrate, or 
commission, grand jury proceedings, pre-trial conferences, depositions, 
and coroners' inquests. It does not include information or investigative 
proceedings conducted by a prosecuting attorney for the purpose of 
determining whether an information or charge should be made in a 
particular case. The judicial proceeding may be in the District of 
Columbia, a State, or a territory or possession of the United States 
including the Commonwealth of Puerto Rico or the Trust Territory of the 
Pacific Islands.
    (d) Pre-trial conference. A conference between the Government 
Attorney and a witness to discuss the witness' testimony. The conference 
must take place after a trial, hearing or grand jury proceeding has been 
scheduled but prior to the witness' actual appearance at the proceeding.
    (e) Residence. The term residence is not limited to the legal 
residence, but includes any place at which the witness is actually 
residing and at which the subpoena or summons is served. If the 
residence of the witness at the time of appearance is different from the 
place of subpoena or summons, the new place of residence shall be 
considered the witness' residence for computation of the transportation 
allowance; but, if the witness is on a business or vacation trip at the 
time of appearance, the witness shall be paid for travel from the place 
of service if this does not result in the witness being paid for more 
travel than is actually performed.
    (f) Summons. An official request, invitation or call, evidenced by 
an official writing of the court, authority, or party responsible for 
the conduct of the proceeding.



Sec. 21.2  Employees of the United States serving as witnesses.

    (a) Applicability. This section applies to employees of the United 
States as defined by 5 U.S.C. 2105, except those whose pay is disbursed 
by the Secretary of the Senate or the Clerk of the House of 
Representatives.
    (b) Entitlement to travel expenses--(1) Official capacity. An 
employee is entitled to travel expenses (in accordance with 
Sec. 21.2(c)) in connection with any judicial or agency proceeding with 
respect to which the employee is summoned (and is authorized by the 
employee's agency to respond to such summons), or is assigned by his or 
her agency:
    (i) To testify or produce official records on behalf of the United 
States, or
    (ii) To testify in his or her official capacity or produce official 
records on behalf of a party other than the United States.


[[Page 377]]


The witness appropriation of the Department of Justice is not available 
for expenses incurred under these conditions.
    (2) Unofficial capacity, federal involvement. An employee is 
entitled to travel expenses (in accordance with paragraph (c) of this 
section) in connection with any judicial or agency proceeding with 
respect to which the employee is summoned to testify on behalf of the 
United States. If an employee is summoned to testify on behalf of a 
party other than the United States, the employee's travel expenses shall 
be payable by the court, authority, or party which caused the employee 
to be summoned.
    (3) Unofficial capacity, no Federal involvement. An employee who 
appears as a witness in any judicial proceeding in an unofficial 
capacity in which there is no Federal involvement is not authorized 
Government travel expenses and may retain reimbursement for expenses 
which he or she receives from the court, authority or party which caused 
the employee to be summoned.
    (c) Allowable travel expenses. An employee qualifying for payment of 
travel expenses by virtue of being called in an official capacity or on 
behalf of the United States shall be paid at rates and in amounts 
allowable for other purposes under the provisions of 5 U.S.C. 5702-5705 
and applicable regulations prescribed thereunder by the Administrator, 
General Services, and the employing agency. Such payment shall be 
reduced to the extent that the travel expenses are paid to the employee 
for his or her appearance by the court, authority, or party which caused 
the employee to be summoned as a witness in an official capacity on 
behalf of a party other than the United States.
    (d) Payment and reimbursement--(1) Payable by the employing agency. 
If an employee serves as a witness, and the case involves the activity 
in connection with which he or she is employed, the travel expenses are 
payable from the appropriation of the employing agency. The Comptroller 
General has defined the extent to which the case must be related to the 
agency's activity as a condition to the agency's responsibility for 
payment in 23 Comp. Gen. 47, 49 (1943), which states ``the employing 
agency is required to pay . . . the traveling expenses incurred by the 
witness only where the information or facts ascertained by the employee 
as part of his official duties forms the basis of the case, or where the 
proceeding is predicated upon a law that that agency is required to 
administer.'' In 39 Comp. Gen. 1, 2 (1959), the Comptroller General 
determined that if an employee testifies regarding facts and information 
he or she acquires in the course of his or her assigned duties, the 
employing agency is responsible for the payment of the employee's travel 
expenses. In these instances, the witness appropriation of the 
Department of Justice is not available for payment of expenses.
    (2) Payable by the Department of Justice. If an employee appears on 
behalf of the United States in an unofficial capacity in a judicial 
proceeding involving the Department of Justice, the employee's travel 
expenses are payable by the Department of Justice. The employing agency 
may advance or pay the travel expenses of the employee and later obtain 
reimbursement from the Department of Justice by submitting an 
appropriate bill together with a copy of the approved advance or travel 
voucher.
    (e) Leave and attendance fee--(1) Leave. An employee is considered 
to be in official duty status when appearing as a witness in his or her 
official capacity or on behalf of the United States in an unofficial 
capacity. An employee is entitled to court leave when he or she appears 
as a witness in an unofficial capacity not on behalf of the United 
States, and the United States, the District of Columbia, or a State or 
local government is a party to the case. An employee must use annual 
leave or leave without pay to appear as a witness when the United 
States, the District of Columbia, or a State or local government is not 
a party.
    (2) Attendance fee. An employee who appears on behalf of the United 
States is not entitled to receive an attendance fee. An employee who 
appears on behalf of a party other than the United States while in 
official duty status or while on court leave should request an 
attendance fee from the court, authority, or party which caused the 
employee to be summoned. Such fee shall be remitted

[[Page 378]]

to the employing agency. An employee who must use annual leave or leave 
without pay to appear as a witness may retain an attendance fee which he 
or she receives.



Sec. 21.3  Aliens.

    (a) Aliens entitled to payment of $30 per day. The following aliens 
are entitled to witness fees and allowances provided in Sec. 21.4:
    (1) Aliens lawfully admitted for permanent residence (documentary 
evidence: Form I-151 or Form 1-551, Alien Registration Receipt Card);
    (2) Aliens lawfully admitted in one of the nonimmigrant categories 
described in 8 U.S.C. 1101(a)(15) (documentary evidence: unexpired Form 
1-94, Arrival-Departure Record). But see below Sec. 21.3(b);
    (3) Aliens admitted as refugees under 8 U.S.C. 1157 and aliens 
granted asylum under 8 U.S.C. 1158 (documentary evidence: Form I-94, 
Arrival Departure Record, indicating admission as refugee under 8 U.S.C. 
1157 or granting asylum under 8 U.S.C. 1158, employment authorized);
    (4) Aliens who have rendered themselves amenable to deportation 
proceedings, but have not admitted deportability or have not been 
determined to be deportable pursuant to section 242 of the Immigration 
and Nationality Act (8 U.S.C. 1252).
    (b) Aliens entitled to payment of $1 per day. An alien who is 
``excludable'' in accordance with 8 U.S.C. 1226, but whose removal is 
stayed by the Attorney General (in accordance with 8 U.S.C. 1227(d)) 
because:
    (1) The testimony of the alien is necessary on behalf of the United 
States in the prosecution of offenders against the United States, or
    (2) The testimony of the alien is necessary on behalf of an indigent 
criminal defendant in accordance with Rule 17(b) of the Federal Rules of 
Criminal Procedures,

is entitled to a $1 per day witness fee. No other fees and allowances 
are authorized.
    (c) Aliens not entitled to payment. An alien who has been paroled 
into the United States for prosecution pursuant to 8 U.S.C. 1182(d)(5) 
(documentary evidence: Form I-94, Arrival-Departure Record, Parole 
Edition), or an alien who has admitted belonging to a class of aliens 
who are deportable, or an alien who has been determined pursuant to 8 
U.S.C. 1252(b) to be deportable (documentary evidence: decision by a 
Special Inquiry Officer, Board of Immigration Appeals, or court), is 
prohibited from receiving fees and allowances in accordance with 28 
U.S.C. 1821(e).
    (d) Doubtful cases. If the Immigration and Naturalization Service 
advises that the alien has admitted deportability, or that he or she was 
paroled into the United States for prosecution, or that deportation 
proceedings have been completed against the alien with a result 
favorable to the Government, no payment under 28 U.S.C. 1821 may be 
made.



Sec. 21.4  Fees and allowances of fact witnesses.

    The fees and allowances of fact witnesses, other than those covered 
by Sec. 21.2, attending at any judicial proceeding, shall be a follows:
    (a) Fee. A witness shall be paid an attendance fee of $30 per day 
for each day's attendance. A witness shall also be paid the attendance 
fee for the time necessarily occupied in going to and returning from the 
place of attendance. However, if both attendance and travel occur on the 
same day, a witness is entitled to only one fee.
    (b) Allowable transportation expenses. A witness shall be entitled 
to transportation expenses based on the means of transportation 
reasonably utilized (based on the nature, duration, location and 
distance of travel) and the distance necessarily traveled from and to 
such witness' residence by the shortest practical route and the fastest 
means of transportation available in going to and returning from the 
place of attendance. Additional costs incurred (including attendance 
fees and subsistence allowances) because of a slower means of 
transportation must be justified for consideration.
    (1) A witness who travels by regularly scheduled common carrier 
shall be paid for the actual expenses of transportation at the most 
economical rate reasonably available. A receipt or other evidence of 
actual cost shall be furnished.

[[Page 379]]

    (2) A witness who travels by privately owned vehicle shall be paid a 
transportation allowance equal to the mileage allowance paid for 
official travel of employees of the Federal Government under the 
provisions of 5 U.S.C. 5704. However, when two or more witnesses travel 
in the same privately owned vehicle, only the witness incurring the 
expense shall receive the mileage allowance.
    (3) A witness incurring incidental transportation expenses, such as 
taxi fares between the place of attendance, residence or lodging and the 
carrier terminals; bridge, road and tunnel tolls; ferry fares; and 
parking fees shall be paid in full for such expenses. Receipts or other 
evidence of actual payment are required for all parking fees (if 
available) and all other single items costing more than $25.
    (4) First-class travel by witnesses requires the same justification 
and approval required for first-class travel by employees of the Federal 
Government.
    (c) Subsistence allowance. A witness (other than a witness detained 
in custody) who is required to be away from his or her residence 
overnight is entitled to a subsistence allowance. A witness who is not 
required to be away from his or her residence overnight is not entitled 
to a subsistence allowance. The witness' subsistence allowance shall not 
exceed either the per diem rate or the actual subsistence allowance rate 
prescribed for Government employees for the place of attendance. These 
rates are established by the Administrator, General Services, for areas 
within the conterminous United States; the Secretary of Defense for 
areas of the United States other than conterminous; or the Secretary of 
State as published in the Standardized Regulations (Government 
Civilians, Foreign Areas) for foreign areas. The witness' subsistence 
allowance shall consist of a meal and miscellaneous expense portion and 
a lodging portion. When an overnight stay is required, the witness shall 
be entitled to:
    (1) The meal and miscellaneous expense portion for each day (or 
partial day) the witness is required to remain away from his or her 
residence and
    (2) The lodging portion for each night the witness is required to 
incur a lodging expense.

The meal and miscellaneous expense portion shall be 50% of the 
authorized subsistence allowance rate rounded to the next whole dollar 
in an actual subsistence rate area, or 45% of the per diem rate rounded 
to the next whole dollar in a per diem area. The lodging portion shall 
be the difference between the meal and miscellaneous expense portion and 
the authorized rate.
    (d) Detained witness fee. A witness (other than an alien covered by 
Sec. 21.3) detained in custody pursuant to 18 U.S.C. 3149 for want of 
security for his or her appearance shall receive subsistence in kind and 
shall be paid a single daily attendance fee for each day the witness is 
detained. A witness in custody for purposes other than 18 U.S.C. 3149 is 
ineligible to receive the attendance and subsistence fees provided by 
this section.



Sec. 21.5  Use of table of distances.

    Mileage payable to witnesses under 28 U.S.C. 1821 shall be computed 
on the basis of odometer readings or the highway distances as stated in 
the Rand McNally Standard Highway Mileage Guide or in any generally 
accepted highway mileage guide which contains a shortline nationwide 
table of distances. However, with respect to travel in areas for which 
no such highway mileage guide exists, mileage payable under 28 U.S.C. 
1821 shall be based on the lesser of either (a) the route of travel 
actually employed or (b) a usually traveled route.



Sec. 21.6  Proceedings in forma pauperis.

    Title 28 U.S.C. 1915 provides for the commencement, prosecution or 
defense of any suit, action, or proceeding without prepayment of fees 
and costs. Witnesses shall attend as in other cases.
    (a) Civil cases. There are currently no provisions for payment of 
witnesses called by the indigent. If the indigent party prevails, 
witness fees and expenses may be taxed as costs in accordance with 28 
U.S.C. 1920.
    (b) Criminal cases. Rule 17(b), Federal Rules of Criminal Procedure, 
requires that fact witnesses subpoenaed on behalf of an indigent 
defendant be paid in

[[Page 380]]

the same manner as witnesses called on behalf of the Government. The 
attendance must be certified by the presiding officer of the court. The 
expenses of Federal Government employees are treated in the same manner 
as they are treated when the employee is called by a Government 
attorney.



Sec. 21.7  Certification of witness attendance.

    In any case in which the U.S. Department of Justice, or office or 
organization thereof, is a party, the Department of Justice shall pay 
all fees and allowances of witnesses, except for those witnesses as 
defined in Sec. 21.2, paragraph (d)(1), on the certification of the 
following officials: The U.S. Attorney, an Assistant U.S. Attorney, a 
U.S. Trustee, or the U.S. Department of Justice attorney who actually 
conducts the case. In criminal proceedings in forma pauperis or in 
proceedings before a U.S. Commissioner, U.S. Magistrate or U.S. Parole 
Commission Hearing Examiner, the Department of Justice shall pay all 
fees and allowances of witnesses on the certification of the U.S. 
District Judge hearing the case or such Commissioner, Magistrate, or 
Hearing Examiner.



PART 22--CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION--Table of Contents




Sec.
22.1  Purpose.
22.2  Definitions.
22.20  Applicability.
22.21  Use of identifiable data.
22.22  Revelation of identifiable data.
22.23  Privacy certification.
22.24  Information transfer agreement.
22.25  Final disposition of identifiable materials.
22.26  Requests for transfer of information.
22.27  Notification.
22.28  Use of data identifiable to a private person for judicial, 
          legislative or administrative purposes.
22.29  Sanctions.

    Authority: Secs. 801(a), 812(a), Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended (Pub. L. 90-
351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. 
L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473); secs. 
262(b), 262(d), Juvenile Justice and Delinquency Prevention Act of 1974, 
42 U.S.C. 5601, et seq., as amended (Pub. L. 93-415, as amended by Pub. 
L. 94-503, Pub. L. 95-115, Pub. L. 99-509, and Pub. L. 98-473); and 
secs. 1407(a) and 1407(d) of the Victims of Crime Act of 1984, 42 U.S.C. 
10601, et seq., Pub. L. 98-473.

    Source: 41 FR 54846, Dec. 15, 1976, unless otherwise noted.



Sec. 22.1   Purpose.

    The purpose of these regulations is to:
    (a) Protect privacy of individuals by requiring that information 
identifiable to a private person obtained in a research or statistical 
program may only be used and/or revealed for the purpose for which 
obtained;
    (b) Insure that copies of such information shall not, without the 
consent of the person to whom the information pertains, be admitted as 
evidence or used for any purpose in any judicial or administrative 
proceedings;
    (c) Increase the credibility and reliability of federally-supported 
research and statistical findings by minimizing subject concern over 
subsequent uses of identifiable information;
    (d) Provide needed guidance to persons engaged in research and 
statistical activities by clarifying the purposes for which identifiable 
information may be used or revealed; and
    (e) Insure appropriate balance between individual privacy and 
essential needs of the research community for data to advance the state 
of knowledge in the area of criminal justice.
    (f) Insure the confidentiality of information provided by crime 
victims to crisis intervention counselors working for victim services 
programs receiving funds provided under the Crime Control Act, and 
Juvenile Justice Act, and the Victims of Crime Act.

[41 FR 54846, Dec. 15, 1976, as amended at 51 FR 6400, Feb. 24, 1986]



Sec. 22.2   Definitions.

    (a) Person means any individual, partnership, corporation, 
association, public or private organization or governmental entity, or 
combination thereof.
    (b) Private person means any person defined in Sec. 22.2(a) other 
than an agency, or department of Federal, State, or local government, or 
any component or

[[Page 381]]

combination thereof. Included as a private person is an individual 
acting in his or her official capacity.
    (c) Research or statistical project means any program, project, or 
component thereof which is supported in whole or in part with funds 
appropriated under the Act and whose purpose is to develop, measure, 
evaluate, or otherwise advance the state of knowledge in a particular 
area. The term does not include ``intelligence'' or other information-
gathering activities in which information pertaining to specific 
individuals is obtained for purposes directly related to enforcement of 
the criminal laws.
    (d) Research or statistical information means any information which 
is collected during the conduct of a research or statistical project and 
which is intended to be utilized for research or statistical purposes. 
The term includes information which is collected directly from the 
individual or obtained from any agency or individual having possession, 
knowledge, or control thereof.
    (e) Information identifiable to a private person means information 
which either--
    (1) Is labelled by name or other personal identifiers, or
    (2) Can, by virtue of sample size or other factors, be reasonably 
interpreted as referring to a particular private person.
    (f) Recipient of assistance means any recipient of a grant, 
contract, interagency agreement, subgrant, or subcontract under the Act 
and any person, including subcontractors, employed by such recipient in 
connection with performances of the grant, contract, or interagency 
agreement.
    (g) Officer or employee of the Federal Government means any person 
employed as a regular or special employee of the U.S. (including 
experts, consultants, and advisory board members) as of July 1, 1973, or 
at any time thereafter.
    (h) The act means the Omnibus Crime Control and Safe Streets Act of 
1968, as amended.
    (i) Applicant means any person who applies for a grant, contract, or 
subgrant to be funded pursuant to the Act.
    (j) The Juvenile Justice Act means the ``Juvenile Justice and 
Delinquency Prevention Act of 1974, as amended.''
    (k) The Victims of Crime Act means the Victims of Crime Act of 1984.

[41 FR 54846, Dec. 15, 1976, as amended at 43 FR 16974, Apr. 21, 1978; 
51 FR 6400, Feb. 24, 1986]



Sec. 22.20   Applicability.

    (a) These regulations govern use and revelation of research and 
statistical information obtained, collected, or produced either directly 
by BJA, OJJDP, BJS, NIJ, or OJP or under any interagency agreement, 
grant, contract, or subgrant awarded under the Crime Control Act, the 
Juvenile Justice Act, and the Victims of Crime Act.
    (b) The regulations do not apply to any records from which 
identifiable research or statistical information was originally 
obtained; or to any records which are designated under existing statutes 
as public; or to any information extracted from any records designated 
as public.
    (c) The regulations do not apply to information gained regarding 
future criminal conduct.

[41 FR 54846, Dec. 15, 1976, as amended at 43 FR 16974, Apr. 21, 1978; 
51 FR 6400, 6401, Feb. 24, 1986]



Sec. 22.21   Use of identifiable data.

    Research or statistical information identifiable to a private person 
may be used only for research or statistical purposes.



Sec. 22.22   Revelation of identifiable data.

    (a) Except as noted in paragraph (b) of this section, research and 
statistical information relating to a private person may be revealed in 
identifiable form on a need-to-know basis only to--
    (1) Officers, employees, and subcontractors of the recipient of 
assistance;
    (2) Such individuals as needed to implement sections 202(c)(3), 801, 
and 811(b) of the Act; and sections 223(a)(12)(A), 223(a)(13), 
223(a)(14), and 243 of the Juvenile Justice and Delinquency Prevention 
Act.
    (3) Persons or organizations for research or statistical purposes. 
Information may only be transferred for such

[[Page 382]]

purposes upon a clear demonstration that the standards of Sec. 22.26 
have been met and that, except where information is transferred under 
paragraphs (a) (1) and (2) of this section, such transfers shall be 
conditioned on compliance with a Sec. 22.24 agreement.
    (b) Information may be revealed in identifiable form where prior 
consent is obtained from an individual or where the individual has 
agreed to participate in a project with knowledge that the findings 
cannot, by virtue of sample size, or uniqueness of subject, be expected 
to totally conceal subject identity.

[41 FR 54846, Dec. 15, 1976, as amended at 51 FR 6400, Feb. 24, 1986]



Sec. 22.23   Privacy certification.

    (a) Each applicant for BJA, OJJDP, BJS, NIJ, or OJP support either 
directly or under a State plan shall submit a Privacy Certificate as a 
condition of approval of a grant application or contract proposal which 
has a research or statistical project component under which information 
identifiable to a private person will be collected.
    (b) The Privacy Certificate shall briefly describe the project and 
shall contain assurance by the applicant that:
    (1) Data identifiable to a private person will not be used or 
revealed, except as authorized under Secs. 22.21, 22.22.
    (2) Access to data will be limited to those employees having a need 
therefore and that such persons shall be advised of and agree in writing 
to comply with these regulations.
    (3) All subcontracts which require access to identifiable data will 
contain conditions meeting the requirements of Sec. 22.24.
    (4) To the extent required by Sec. 22.27 any private persons from 
whom identifiable data are collected or obtained, either orally or by 
means of written questionnaire, shall be advised that the data will only 
be used or revealed for research or statistical purposes and that 
compliance with requests for information is not mandatory. Where the 
notification requirement is to be waived, pursuant to Sec. 22.27(c), a 
justification must be included in the Privacy Certificate.
    (5) Adequate precautions will be taken to insure administrative and 
physical security of identifiable data.
    (6) A log will be maintained indicating that identifiable data have 
been transmitted to persons other than BJA, OJJDP, BJS, NIJ, or OJP or 
grantee/contractor staff or subcontractors, that such data have been 
returned, or that alternative arrangements have been agreed upon for 
future maintenance of such data.
    (7) Project plans will be designed to preserve anonymity of private 
persons to whom information relates, including, where appropriate, name-
stripping, coding of data, or other similar procedures.
    (8) Project findings and reports prepared for dissemination will not 
contain information which can reasonably be expected to be identifiable 
to a private person except as authorized under Sec. 22.22.
    (c) The applicant shall attach to the Privacy Certification a 
description of physical and/or administrative procedures to be followed 
to insure the security of the data to meet the requirements of 
Sec. 22.25.

[41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986]



Sec. 22.24   Information transfer agreement.

    Prior to the transfer of any identifiable information to persons 
other than BJA, OJJDP, BJS, NIJ, or OJP or project staff, an agreement 
shall be entered into which shall provide, as a minimum, that the 
recipient of data agrees that:
    (a) Information identifiable to a private person will be used only 
for research and statistical purposes.
    (b) Information identifiable to a private person will not be 
revealed to any person for any purpose except where the information has 
already been included in research findings (and/or data bases) and is 
revealed on a need-to-know basis for research or statistical purposes, 
provided that such transfer is approved by the person providing 
information under the agreement, or authorized under Sec. 22.24(e).
    (c) Knowingly and willfully using or disseminating information 
contrary to the provisions of the agreement shall

[[Page 383]]

constitute a violation of these regulations, punishable in accordance 
with the Act.
    (d) Adequate administrative and physical precautions will be taken 
to assure security of information obtained for such purpose.
    (e) Access to information will be limited to those employees or 
subcontractors having a need therefore in connection with performance of 
the activity for which obtained, and that such persons shall be advised 
of, and agree to comply with, these regulations.
    (f) Project plans will be designed to preserve anonymity of private 
persons to whom information relates, including, where appropriate, 
required name-stripping and/or coding of data or other similar 
procedures.
    (g) Project findings and reports prepared for dissemination will not 
contain information which can reasonably be expected to be identifiable 
to a private person.
    (h) Information identifiable to a private person (obtained in 
accordance with this agreement) will, unless otherwise agreed upon, be 
returned upon completion of the project for which obtained and no copies 
of that information retained.

[41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986]



Sec. 22.25   Final disposition of identifiable materials.

    Upon completion of a research or statistical project the security of 
identifiable research or statistical information shall be protected by:
    (a) Complete physical destruction of all copies of the materials or 
the identifiable portion of such materials after a three-year required 
recipient retention period or as soon as authorized by law, or
    (b) Removal of identifiers from data and separate maintenance of a 
name-code index in a secure location.

The Privacy Certificate shall indicate the procedures to be followed and 
shall, in the case of paragraph (b) of this section, describe procedures 
to secure the name index.



Sec. 22.26   Requests for transfer of information.

    (a) Requests for transfer of information identifiable to an 
individual shall be submitted to the person submitting the Privacy 
Certificate pursuant to Sec. 22.23.
    (b) Except where information is requested by BJA, OJJDP, BJS, NIJ, 
or OJP, the request shall describe the general objectives of the project 
for which information is requested, and specifically justify the need 
for such information in identifiable form. The request shall also 
indicate, and provide justification for the conclusion that conduct of 
the project will not, either directly or indirectly, cause legal, 
economic, physical, or social harm to individuals whose identification 
is revealed in the transfer of information.
    (c) Data may not be transferred pursuant to this section where a 
clear showing of the criteria set forth above is not made by the person 
requesting the data.

[41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986]



Sec. 22.27   Notification.

    (a) Any person from whom information identifiable to a private 
person is to be obtained directly, either orally, by questionnaire, or 
other written documents, shall be advised:
    (1) That the information will only be used or revealed for research 
or statistical purposes; and
    (2) That compliance with the request for information is entirely 
voluntary and may be terminated at any time.
    (b) Except as noted in paragraph (c) of this section, where 
information is to be obtained through observation of individual activity 
or performance, such individuals shall be advised:
    (1) Of the particular types of information to be collected;
    (2) That the data will only be utilized or revealed for research or 
statistical purposes; and
    (3) That participation in the project in question is voluntary and 
may be terminated at any time.
    (c) Notification, as described in paragraph (b) of this section, may 
be eliminated where information is obtained through field observation of 
individual activity or performance and in the

[[Page 384]]

judgment of the researcher such notification is impractical or may 
seriously impede the progress of the research.
    (d) Where findings in a project cannot, by virtue of sample size, or 
uniqueness of subject, be expected to totally conceal subject identity, 
an individual shall be so advised.



Sec. 22.28  Use of data identifiable to a private person for judicial, legislative or administrative purposes.

    (a) Research or statistical information identifiable to a private 
person shall be immune from legal process and shall only be admitted as 
evidence or used for any purpose in any action, suit, or other judicial, 
legislative or administrative proceeding with the written consent of the 
individual to whom the data pertains.
    (b) Where consent is obtained, such consent shall:
    (1) Be obtained at the time that information is sought for use in 
judicial, legislative or administrative proceedings;
    (2) Set out specific purposes in connection with which information 
will be used;
    (3) Limit, where appropriate, the scope of the information subject 
to such consent.

[41 FR 54846, Dec. 15, 1976, as amended at 45 FR 62038, Sept. 18, 1980]



Sec. 22.29   Sanctions.

    Where BJA, OJJDP, BJS, NIJ, or OJP believes that a violation has 
occurred of section 812(a) of the Act or section 1407(d) of the Victims 
of Crime Act, these regulations, or any grant or contract conditions 
entered into thereunder, it may initiate administrative actions leading 
to termination of a grant or contract, commence appropriate personnel 
and/or other procedures in cases involving Federal employees, and/or 
initiate appropriate legal actions leading to imposition of a fine of 
not to exceed $10,000 against any person responsible for such 
violations.

[41 FR 54846, Dec. 15, 1976, as amended at 45 FR 62038, Sept. 18, 1980; 
51 FR 6401, Feb. 24, 1986]



PART 23--CRIMINAL INTELLIGENCE SYSTEMS OPERATING POLICIES--Table of Contents




Sec.
23.1  Purpose.
23.2  Background.
23.3  Applicability.
23.20  Operating principles.
23.30  Funding guidelines.
23.40  Monitoring and auditing of grants for the funding of intelligence 
          systems.

    Authority: 42 U.S.C. 3782(a); 42 U.S.C. 3789g(c).

    Source: 58 FR 48452, Sept. 16, 1993, unless otherwise noted.



Sec. 23.1  Purpose.

    The purpose of this regulation is to assure that all criminal 
intelligence systems operating through support under the Omnibus Crime 
Control and Safe Streets Act of 1968, 42 U.S.C. 3711, et seq., as 
amended (Pub. L. 90-351, as amended by Pub. L. 91-644, Pub. L. 93-83, 
Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115, Pub. L. 
96-157, Pub. L. 98-473, Pub. L. 99-570, Pub. L. 100-690, and Pub. L. 
101-647), are utilized in conformance with the privacy and 
constitutional rights of individuals.



Sec. 23.2  Background.

    It is recognized that certain criminal activities including but not 
limited to loan sharking, drug trafficking, trafficking in stolen 
property, gambling, extortion, smuggling, bribery, and corruption of 
public officials often involve some degree of regular coordination and 
permanent organization involving a large number of participants over a 
broad geographical area. The exposure of such ongoing networks of 
criminal activity can be aided by the pooling of information about such 
activities. However, because the collection and exchange of intelligence 
data necessary to support control of serious criminal activity may 
represent potential threats to the privacy of individuals to whom such 
data relates, policy guidelines for Federally funded projects are 
required.



Sec. 23.3  Applicability.

    (a) These policy standards are applicable to all criminal 
intelligence systems operating through support under

[[Page 385]]

the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3711, 
et seq., as amended (Pub. L. 90-351, as amended by Pub. L. 91-644, Pub. 
L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-
115, Pub. L. 96-157, Pub. L. 98-473, Pub. L. 99-570, Pub. L. 100-690, 
and Pub. L. 101-647).
    (b) As used in these policies:
    (1) Criminal Intelligence System or Intelligence System means the 
arrangements, equipment, facilities, and procedures used for the 
receipt, storage, interagency exchange or dissemination, and analysis of 
criminal intelligence information;
    (2) Interjurisdictional Intelligence System means an intelligence 
system which involves two or more participating agencies representing 
different governmental units or jurisdictions;
    (3) Criminal Intelligence Information means data which has been 
evaluated to determine that it:
    (i) Is relevant to the identification of and the criminal activity 
engaged in by an individual who or organization which is reasonably 
suspected of involvement in criminal activity, and
    (ii) Meets criminal intelligence system submission criteria;
    (4) Participating Agency means an agency of local, county, State, 
Federal, or other governmental unit which exercises law enforcement or 
criminal investigation authority and which is authorized to submit and 
receive criminal intelligence information through an interjurisdictional 
intelligence system. A participating agency may be a member or a 
nonmember of an interjurisdictional intelligence system;
    (5) Intelligence Project or Project means the organizational unit 
which operates an intelligence system on behalf of and for the benefit 
of a single agency or the organization which operates an 
interjurisdictional intelligence system on behalf of a group of 
participating agencies; and
    (6) Validation of Information means the procedures governing the 
periodic review of criminal intelligence information to assure its 
continuing compliance with system submission criteria established by 
regulation or program policy.



Sec. 23.20  Operating principles.

    (a) A project shall collect and maintain criminal intelligence 
information concerning an individual only if there is reasonable 
suspicion that the individual is involved in criminal conduct or 
activity and the information is relevant to that criminal conduct or 
activity.
    (b) A project shall not collect or maintain criminal intelligence 
information about the political, religious or social views, 
associations, or activities of any individual or any group, association, 
corporation, business, partnership, or other organization unless such 
information directly relates to criminal conduct or activity and there 
is reasonable suspicion that the subject of the information is or may be 
involved in criminal conduct or activity.
    (c) Reasonable Suspicion or Criminal Predicate is established when 
information exists which establishes sufficient facts to give a trained 
law enforcement or criminal investigative agency officer, investigator, 
or employee a basis to believe that there is a reasonable possibility 
that an individual or organization is involved in a definable criminal 
activity or enterprise. In an interjurisdictional intelligence system, 
the project is responsible for establishing the existence of reasonable 
suspicion of criminal activity either through examination of supporting 
information submitted by a participating agency or by delegation of this 
responsibility to a properly trained participating agency which is 
subject to routine inspection and audit procedures established by the 
project.
    (d) A project shall not include in any criminal intelligence system 
information which has been obtained in violation of any applicable 
Federal, State, or local law or ordinance. In an interjurisdictional 
intelligence system, the project is responsible for establishing that no 
information is entered in violation of Federal, State, or local laws, 
either through examination of supporting information submitted by a 
participating agency or by delegation of this responsibility to a 
properly trained participating agency which is subject to routine 
inspection and audit procedures established by the project.

[[Page 386]]

    (e) A project or authorized recipient shall disseminate criminal 
intelligence information only where there is a need to know and a right 
to know the information in the performance of a law enforcement 
activity.
    (f)(1) Except as noted in paragraph (f)(2) of this section, a 
project shall disseminate criminal intelligence information only to law 
enforcement authorities who shall agree to follow procedures regarding 
information receipt, maintenance, security, and dissemination which are 
consistent with these principles.
    (2) Paragraph (f)(1) of this section shall not limit the 
dissemination of an assessment of criminal intelligence information to a 
government official or to any other individual, when necessary, to avoid 
imminent danger to life or property.
    (g) A project maintaining criminal intelligence information shall 
ensure that administrative, technical, and physical safeguards 
(including audit trails) are adopted to insure against unauthorized 
access and against intentional or unintentional damage. A record 
indicating who has been given information, the reason for release of the 
information, and the date of each dissemination outside the project 
shall be kept. Information shall be labeled to indicate levels of 
sensitivity, levels of confidence, and the identity of submitting 
agencies and control officials. Each project must establish written 
definitions for the need to know and right to know standards for 
dissemination to other agencies as provided in paragraph (e) of this 
section. The project is responsible for establishing the existence of an 
inquirer's need to know and right to know the information being 
requested either through inquiry or by delegation of this responsibility 
to a properly trained participating agency which is subject to routine 
inspection and audit procedures established by the project. Each 
intelligence project shall assure that the following security 
requirements are implemented:
    (1) Where appropriate, projects must adopt effective and 
technologically advanced computer software and hardware designs to 
prevent unauthorized access to the information contained in the system;
    (2) The project must restrict access to its facilities, operating 
environment and documentation to organizations and personnel authorized 
by the project;
    (3) The project must store information in the system in a manner 
such that it cannot be modified, destroyed, accessed, or purged without 
authorization;
    (4) The project must institute procedures to protect criminal 
intelligence information from unauthorized access, theft, sabotage, 
fire, flood, or other natural or manmade disaster;
    (5) The project must promulgate rules and regulations based on good 
cause for implementing its authority to screen, reject for employment, 
transfer, or remove personnel authorized to have direct access to the 
system; and
    (6) A project may authorize and utilize remote (off-premises) system 
data bases to the extent that they comply with these security 
requirements.
    (h) All projects shall adopt procedures to assure that all 
information which is retained by a project has relevancy and importance. 
Such procedures shall provide for the periodic review of information and 
the destruction of any information which is misleading, obsolete or 
otherwise unreliable and shall require that any recipient agencies be 
advised of such changes which involve errors or corrections. All 
information retained as a result of this review must reflect the name of 
the reviewer, date of review and explanation of decision to retain. 
Information retained in the system must be reviewed and validated for 
continuing compliance with system submission criteria before the 
expiration of its retention period, which in no event shall be longer 
than five (5) years.
    (i) If funds awarded under the Act are used to support the operation 
of an intelligence system, then:
    (1) No project shall make direct remote terminal access to 
intelligence information available to system participants, except as 
specifically approved by the Office of Justice Programs (OJP) based on a 
determination that the system has adequate policies

[[Page 387]]

and procedures in place to insure that it is accessible only to 
authorized systems users; and
    (2) A project shall undertake no major modifications to system 
design without prior grantor agency approval.
    (ii) [Reserved]
    (j) A project shall notify the grantor agency prior to initiation of 
formal information exchange procedures with any Federal, State, 
regional, or other information systems not indicated in the grant 
documents as initially approved at time of award.
    (k) A project shall make assurances that there will be no purchase 
or use in the course of the project of any electronic, mechanical, or 
other device for surveillance purposes that is in violation of the 
provisions of the Electronic Communications Privacy Act of 1986, Public 
Law 99-508, 18 U.S.C. 2510-2520, 2701-2709 and 3121-3125, or any 
applicable State statute related to wiretapping and surveillance.
    (l) A project shall make assurances that there will be no harassment 
or interference with any lawful political activities as part of the 
intelligence operation.
    (m) A project shall adopt sanctions for unauthorized access, 
utilization, or disclosure of information contained in the system.
    (n) A participating agency of an interjurisdictional intelligence 
system must maintain in its agency files information which documents 
each submission to the system and supports compliance with project entry 
criteria. Participating agency files supporting system submissions must 
be made available for reasonable audit and inspection by project 
representatives. Project representatives will conduct participating 
agency inspection and audit in such a manner so as to protect the 
confidentiality and sensitivity of participating agency intelligence 
records.
    (o) The Attorney General or designee may waive, in whole or in part, 
the applicability of a particular requirement or requirements contained 
in this part with respect to a criminal intelligence system, or for a 
class of submitters or users of such system, upon a clear and convincing 
showing that such waiver would enhance the collection, maintenance or 
dissemination of information in the criminal intelligence system, while 
ensuring that such system would not be utilized in violation of the 
privacy and constitutional rights of individuals or any applicable state 
or federal law.



Sec. 23.30  Funding guidelines.

    The following funding guidelines shall apply to all Crime Control 
Act funded discretionary assistance awards and Bureau of Justice 
Assistance (BJA) formula grant program subgrants, a purpose of which is 
to support the operation of an intelligence system. Intelligence systems 
shall only be funded where a grantee/subgrantee agrees to adhere to the 
principles set forth above and the project meets the following criteria:
    (a) The proposed collection and exchange of criminal intelligence 
information has been coordinated with and will support ongoing or 
proposed investigatory or prosecutorial activities relating to specific 
areas of criminal activity.
    (b) The areas of criminal activity for which intelligence 
information is to be utilized represent a significant and recognized 
threat to the population and:
    (1) Are either undertaken for the purpose of seeking illegal power 
or profits or pose a threat to the life and property of citizens; and
    (2) Involve a significant degree of permanent criminal organization; 
or
    (3) Are not limited to one jurisdiction.
    (c) The head of a government agency or an individual with general 
policy making authority who has been expressly delegated such control 
and supervision by the head of the agency will retain control and 
supervision of information collection and dissemination for the criminal 
intelligence system. This official shall certify in writing that he or 
she takes full responsibility and will be accountable for the 
information maintained by and disseminated from the system and that the 
operation of the system will be in compliance with the principles set 
forth in Sec. 23.20.
    (d)(1) Where the system is an interjurisdictional criminal 
intelligence system, the governmental agency which exercises control and 
supervision

[[Page 388]]

over the operation of the system shall require that the head of that 
agency or an individual with general policymaking authority who has been 
expressly delegated such control and supervision by the head of the 
agency:
    (i) Assume official responsibility and accountability for actions 
taken in the name of the joint entity, and
    (ii) Certify in writing that the official takes full responsibility 
and will be accountable for insuring that the information transmitted to 
the interjurisdictional system or to participating agencies will be in 
compliance with the principles set forth in Sec. 23.20.
    (2) The principles set forth in Sec. 23.20 shall be made part of the 
by-laws or operating procedures for that system. Each participating 
agency, as a condition of participation, must accept in writing those 
principles which govern the submission, maintenance and dissemination of 
information included as part of the interjurisdictional system.
    (e) Intelligence information will be collected, maintained and 
disseminated primarily for State and local law enforcement efforts, 
including efforts involving Federal participation.



Sec. 23.40  Monitoring and auditing of grants for the funding of intelligence systems.

    (a) Awards for the funding of intelligence systems will receive 
specialized monitoring and audit in accordance with a plan designed to 
insure compliance with operating principles as set forth in Sec. 23.20. 
The plan shall be approved prior to award of funds.
    (b) All such awards shall be subject to a special condition 
requiring compliance with the principles set forth in Sec. 23.20.
    (c) An annual notice will be published by OJP which will indicate 
the existence and the objective of all systems for the continuing 
interjurisdictional exchange of criminal intelligence information which 
are subject to the 28 CFR part 23 Criminal Intelligence Systems 
Policies.



PART 24--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN DEPARTMENT OF JUSTICE ADMINISTRATIVE PROCEEDINGS--Table of Contents




                      Subpart A--General Provisions

Sec.
24.101  Purpose of these rules.
24.102  Definitions.
24.103  Proceedings covered.
24.104  Applicability to Department of Justice proceedings.
24.105  Eligibility of applicants.
24.106  Standards for awards.
24.107  Allowable fees and other expenses.

             Subpart B--Information Required From Applicants

24.201  Contents of application.
24.202  Net worth exhibit.
24.203  Documentation of fees and expenses.
24.204  Time for submission of application.

           Subpart C--Procedures for Considering Applications

24.301  Filing and service of documents.
24.302  Answer to application.
24.303  Comments by other parties.
24.304  Settlement.
24.305  Extensions of time.
24.306  Decision on application.
24.307  Department review.
24.308  Judicial review.
24.309  Payment of award.

    Authority: 5 U.S.C. 504(c)(1).

    Source: Order No. 975-82, 47 FR 15776, Apr. 13, 1982, unless 
otherwise noted.



                      Subpart A--General provisions



Sec. 24.101  Purpose of these rules.

    These rules are adopted by the Department of Justice pursuant to 
section 504 of title 5, U.S. Code, as amended by section 203(a)(1) of 
the Equal Access to Justice Act, Public Law No. 96-481. Under the Act, 
an eligible party may receive an award for attorney fees and other 
expenses when it prevails over the Department in an adversary 
adjudication under 5 U.S.C. 554 before the Department, unless the 
Department's position as a party to the proceeding was substantially 
justified or special circumstances make an award unjust. The purpose of 
these rules is to

[[Page 389]]

establish procedures for the submission and consideration of 
applications for awards against the Department.



Sec. 24.102  Definitions.

    As used in this part:
    (a) The Act means section 504 of title 5, U.S. Code, as amended by 
section 203(a)(1) of the Equal Access to Justice Act, Public Law No. 96-
481.
    (b) Adversary adjudication means an adjudication under 5 U.S.C. 554 
in which the position of the United States is represented by counsel or 
otherwise, but excludes an adjudication for the purpose of establishing 
or fixing a rate or for the purpose of granting or reviewing a license.
    (c) Adjudicative officer means the official, without regard to 
whether the official is designated as an administrative law judge, a 
hearing officer or examiner, or otherwise, who presided at the adversary 
adjudication.
    (d) Department refers to the relevant departmental component which 
is conducting the adversary adjudication (e.g., Drug Enforcement 
Administration or Office of Justice Assistance, Research, and 
Statistics).
    (e) Proceeding means an adversary adjudication as defined in 
Sec. 24.102(b) above.



Sec. 24.103  Proceedings covered.

    (a) These rules apply to adversary adjudications required by statute 
to be conducted by the Department under 5 U.S.C. 554. Specifically, the 
proceedings conducted by the Department to which these rules apply are:
    (1) Hearings conducted by the Drug Enforcement Administration (DEA) 
in connection with suspension or revocation of registration of 
manufacturers, distributors, and dispensers of controlled substances 
under 21 U.S.C. 824(c) and 21 CFR 1301.51; suspension or revocation of 
import and export registrations pursuant to 21 U.S.C. 958 and 21 CFR 
1311.51;
    (2) Hearings conducted by DEA in connection with the scheduling of 
drugs pursuant to 21 U.S.C. 811(a) and 21 CFR 1308.41;
    (3) Handicap discrimination hearings conducted by the Department 
under 29 U.S.C. 794a(a) and 28 CFR 42.109(d);
    (4) Title VI civil rights hearings conducted by the Department under 
42 U.S.C. 2000d-1 and 28 CFR 42.109(d);
    (5) Grant denial and grant termination hearings conducted by the 
Office of Justice Assistance, Research, and Statistics (OJARS), the 
National Institute of Justice (NIJ), the Bureau of Justice Statistics 
(BJS) and the Office of Juvenile Justice and Delinquency Prevention 
(OJJDP), or the Law Enforcement Assistance Administration (LEAA) under 
42 U.S.C. 3783 and 28 CFR part 18; and
    (6) Civil rights hearings conducted by OJARS under 42 U.S.C. 3789d 
and 28 CFR 42.214-15.
    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.



Sec. 24.104  Applicability to Department of Justice proceedings.

    The Act applies to an adversary adjudication pending before the 
Department at any time between October 1, 1981 and September 30, 1984. 
This includes proceedings begun before October 1, 1981 if final 
Department action has not been taken before that date, and proceedings 
pending on September 30, 1984.



Sec. 24.105  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a prevailing party in the adversary 
adjudication for which it seeks an award. The term ``party'' is defined 
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions 
of eligibility set out in this subpart and in subpart B.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $5 million and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;

[[Page 390]]

    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $5 million and 
not more than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
adversary adjudication was initiated.



Sec. 24.106  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding unless (1) the 
position of the Department as a party to the proceeding was 
substantially justified or (2) special circumstances make the award 
sought unjust. No presumption arises that the agency's position was not 
substantially justified simply because the agency did not prevail.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceedings.



Sec. 24.107  Allowable fees and other expenses.

    (a) The following fees and other expenses are allowable under the 
Act:
    (1) Reasonable expenses of expert witnesses;
    (2) Reasonable cost of any study, analysis, engineering report, 
test, or project which the Department finds necessary for the 
preparation of the party's case;
    (3) Reasonable attorney or agent fees;
    (b) The amount of fees awarded will be based upon the prevailing 
market rates for the kind and quality of services furnished, except that
    (1) Compensation for an expert witness will not exceed the highest 
rate paid by the Department for expert witnesses; and
    (2) Attorney or agent fees will not be in excess of $75 per hour.



             Subpart B--Information Required From Applicants



Sec. 24.201  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of the Department in the proceeding that the 
applicant alleges was not substantially justified.
    (b) The application shall include a statement that the applicant's 
net worth as of the time the proceeding was initiated did not exceed $1 
million if the applicant is an individual (other than a sole owner of an 
unincorporated business seeking an award in that capacity) or $5 million 
in the case of all other applicants. An applicant may omit this 
statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) and is exempt 
from taxation under section 501(a) of the Code or, in the case of such 
an organization not required to obtain a ruling from the Internal 
Revenue Service on its exempt status, a statement that describes the 
basis for the applicant's belief that it qualifies under section 
501(c)(3) of the Code; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) If the applicant is a partnership, corporation, association, or 
organization, or a sole owner of an unincorporated business, the 
application shall state that it did not have more than 500 employees at 
the time the proceeding was initiated, giving the number of its 
employees and describing briefly the type and purpose of its 
organization or business.
    (d) The application shall itemize the amount of fees and expenses 
for which an award is sought.

[[Page 391]]

    (e) The application may include any other matters that the applicant 
believes should be considered in determining whether and in what amount 
an award should be made.
    (f) The application shall be signed by the applicant with respect to 
the eligibility of the applicant and by the attorney of the applicant 
with respect to fees and expenses sought. The application shall contain 
or be accompanied by a written verification under oath or affirmation 
under penalty of perjury that the information provided in the 
application and all accompanying material is true and complete to the 
best of the signer's information and belief.



Sec. 24.202  Net worth exhibit.

    (a) Each applicant except a qualified tax exempt organization or a 
qualified cooperative must submit with its application a detailed 
exhibit showing its net worth at the time the proceeding was initiated. 
If any individual, corporation, or other entity directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or if the applicant directly or indirectly owns or 
controls a majority of the voting shares of other interest of any 
corporation or other entity, the exhibit must include a showing of the 
net worth of all such affiliates or of the applicant including the 
affiliates. The exhibit may be in any form convenient to the applicant, 
provided that it makes full disclosure of the applicant's and any 
affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards of 5 U.S.C. 
504(b)(1)(B)(i). The adjudicative officer may require an applicant to 
file additional information to determine the applicant's eligibility for 
an award.
    (b) The net worth exhibit shall describe any transfers of assets 
from, or obligations incurred by, the applicant or any affiliate, 
occurring in the one-year period prior to the date on which the 
proceeding was initiated, that reduced the net worth of the applicant 
and its affiliates below the applicable net worth ceiling. If there were 
no such transactions, the applicant shall so state.
    (c) The net worth exhibit shall be included in the public record of 
the proceeding.



Sec. 24.203  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, engineering 
report, test, or project, for which an award is sought.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing in behalf of the 
party, stating the actual time expended and the rate at which fees and 
other expenses were computed and describing the specific services 
performed.
    (1) The affidavit shall state the services performed. In order to 
establish the hourly rate, the affidavit shall state the hourly rate 
which is billed and paid by the majority of clients during the relevant 
time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide information about 
two attorneys or agents with similar experience, who perform similar 
work, stating their hourly rate.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.



Sec. 24.204  Time for submission of application.

    (a) An application must be filed no later than 30 days after final 
disposition of the proceeding. If review or reconsideration is sought or 
taken of a decision as to which an applicant believes it has prevailed, 
action on the award of fees shall be stayed pending final disposition of 
the underlying controversy.
    (b) Final disposition means the later of:

[[Page 392]]

    (1) The date on which the final agency decision is issued,
    (2) The date on which a petition for rehearing or reconsideration is 
disposed of, or
    (3) The date of final resolution of the proceeding, such as 
settlement or voluntary dismissal, which is not subject to a petition 
for rehearing or reconsideration.



           Subpart C--Procedures for Considering Applications



Sec. 24.301  Filing and service of documents.

    An application for an award and any other pleading or document 
related to the application shall be filed and served on all parties to 
the proceeding in the same manner as other pleadings in the proceeding.



Sec. 24.302  Answer to application.

    (a) Within 30 calendar days after service of the application, 
Department counsel may file an answer. If Department counsel fails to 
answer or otherwise fails to contest or settle the application, the 
adjudicative officer may upon a satisfactory showing of entitlement by 
the applicant make an award for the applicant's fees and other expenses 
under 5 U.S.C. 504.
    (b) If Department counsel and applicant believe that they can reach 
a settlement concerning the award, Department counsel may file a 
statement of intent to negotiate. The filing of such a statement shall 
extend the time for filing an answer an additional 30 days.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on to support the objection. If 
the answer is based on any alleged facts not already reflected in the 
record of the proceeding, Department counsel shall include with the 
answer either a supporting affidavit or a request for further filings or 
other action.



Sec. 24.303  Comments by other parties.

    Any party to a proceeding other than the applicant and Department 
counsel may file comments on an application within 30 calendar days 
after it is served or on an answer within 15 calendar days after it is 
served.



Sec. 24.304  Settlement.

    A prevailing party and Department counsel may agree on a proposed 
settlement of an award before final action on the application, either in 
connection with a settlement of the underlying proceeding or after the 
underlying proceeding has been concluded. If the party and Department 
counsel agree on a proposed settlement of an award before an application 
has been filed, the application shall be filed with the proposed 
settlement.



Sec. 24.305  Extensions of time.

    (a) The adjudicative officer may on motion and for good cause shown 
grant extensions of time other than for filing an application for fees 
and expenses after final disposition in the adversary adjudication.
    (b) Ordinarily, the determination of an award will be made on the 
basis of the written record of the underlying proceeding and the filings 
required or permitted by the foregoing sections of these rules. However, 
the adjudicative officer may sua sponte or on motion of any party to the 
proceedings require or permit further filings or other action, such as 
an informal conference, oral argument, additional written submissions, 
or an evidentiary hearing. Such further action shall occur only when 
necessary for full and fair resolution of the issues arising from the 
application and shall take place as promptly as possible. A motion for 
further filings or other action shall specifically identify the 
information sought on the disputed issues and shall explain why the 
further filings or other action is necessary to resolve the issues.
    (c) In the event that an evidentiary hearing is required or 
permitted by the adjudicative officer, such hearing and any related 
filings or other action required or permitted shall be conducted 
pursuant to the procedural rules governing adversary adjudications 
conducted by the Department component in which the underlying adversary 
adjudication was conducted.



Sec. 24.306  Decision on application.

    The adjudicative officer shall promptly issue a decision on the 
application which shall include proposed written findings and 
conclusions on

[[Page 393]]

such of the following as are relevant to the decision:
    (a) The applicant's status as a prevailing party;
    (b) The applicant's qualification as a ``party'' under 5 U.S.C. 
504(b)(1)(B);
    (c) Whether the Department's position as a party to the proceeding 
was substantially justified;
    (d) Whether special circumstances make an award unjust;
    (e) Whether the applicant during the course of the proceedings 
engaged in conduct that unduly and unreasonably protracted the final 
resolution of the matter in controversy; and
    (f) The amounts, if any, awarded for fees and other expenses, with 
reasons for any difference between the amount requested and the amount 
awarded.



Sec. 24.307  Department review.

    The decision of the adjudicative officer will be reviewed to the 
extent permitted by law by the Department in accordance with the 
Department's procedures for the type of proceeding involved. The 
Department will issue the final decision on the application.



Sec. 24.308  Judicial review.

    Judicial review of final Department decisions on awards may be 
sought as provided in 5 U.S.C. 504(c)(2).



Sec. 24.309  Payment of award.

    An applicant seeking payment of an award shall submit a copy of the 
final decision granting the award to the Department's Accounting Office 
for processing. A statement that review of the underlying decision is 
not being sought in the United States courts, or that the process for 
seeking review of the award has been completed, must also be included.



PART 26--IMPLEMENTATION OF DEATH SENTENCES IN FEDERAL CASES--Table of Contents




Sec.
26.1  Applicability.
26.2  Proposed Judgment and Order.
26.3  Date, time, place, and method of execution.
26.4  Other execution procedures.
26.5  Attendance at or participation in executions by Department of 
          Justice personnel.

    Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C. 509, 
510.

    Source: Order No. 1655-93, 57 FR 4901, Jan. 19, 1993, unless 
otherwise noted.



Sec. 26.1  Applicability.

    The regulations of this part apply whenever a sentencing hearing 
conducted in a United States District Court has resulted in a 
recommendation or determination that a criminal defendant be sentenced 
to death for commission of an offense described in any federal statute.



Sec. 26.2  Proposed Judgment and Order.

    (a) Whenever this part becomes applicable, the attorney for the 
government shall promptly file with the sentencing court a proposed 
Judgment and Order. The proposed Judgment and Order shall state, in 
addition to any other matters required by law or otherwise appropriate, 
that:
    (1) The sentence shall be executed by a United States Marshal 
designated by the Director of the United States Marshals Service;
    (2) The sentence shall be executed by intravenous injection of a 
lethal substance or substances in a quantity sufficient to cause death;
    (3) The sentence shall be executed on a date and at a place 
designated by the Director of the Federal Bureau of Prisons; and
    (4) The prisoner under sentence of death shall be committed to the 
custody of the Attorney General or his authorized representative for 
appropriate detention pending execution of the sentence.
    (b) The attorney for the government shall append to the proposed 
Judgment and Order a Return by which the designated United States 
Marshal may inform the court that the sentence of death has been 
executed.



Sec. 26.3  Date, time, place, and method of execution.

    (a) Except to the extent a court orders otherwise, a sentence of 
death shall be executed:
    (1) On a date and at a time designated by the Director of the 
Federal

[[Page 394]]

Bureau of Prisons, which date shall be no sooner than 60 days from the 
entry of the judgment of death. If the date designated for execution 
passes by reason of a stay of execution, then a new date shall be 
designated promptly by the Director of the Federal Bureau of Prisons 
when the stay is lifted;
    (2) At a federal penal or correctional institution designated by the 
Director of the Federal Bureau of Prisons;
    (3) By a United States Marshal designated by the Director of the 
United States Marshals Service, assisted by additional personnel 
selected by the Marshal and the Warden of the designated institution and 
acting at the direction of the Marshal; and
    (4) By intravenous injection of a lethal substance or substances in 
a quantity sufficient to cause death, such substance or substances to be 
determined by the Director of the Federal Bureau of Prisons and to be 
administered by qualified personnel selected by the Warden and acting at 
the direction of the Marshal.
    (b) Unless the President interposes, the United States Marshal shall 
not stay execution of the sentence on the basis that the prisoner has 
filed a petition for executive clemency.



Sec. 26.4  Other execution procedures.

    Except to the extent a court orders otherwise:
    (a) The Warden of the designated institution shall notify the 
prisoner under sentence of death of the date designated for execution at 
least 20 days in advance, except when the date follows a postponement of 
fewer than 20 days of a previously scheduled and noticed date of 
execution, in which case the Warden shall notify the prisoner as soon as 
possible.
    (b) Beginning seven days before the designated date of execution, 
the prisoner shall have access only to his spiritual advisers (not to 
exceed two), his defense attorneys, members of his family, and the 
officers and employees of the institution. Upon approval of the Director 
of the Federal Bureau of Prisons, the Warden may grant access to such 
other proper persons as the prisoner may request.
    (c) In addition to the Marshal and Warden, the following persons 
shall be present at the execution:
    (1) Necessary personnel selected by the Marshal and Warden;
    (2) Those attorneys of the Department of Justice whom the Deputy 
Attorney General determines are necessary;
    (3) Not more than the following numbers of person selected by the 
prisoner:
    (i) One spiritual adviser;
    (ii) Two defense attorneys; and
    (iii) Three adult friends or relatives; and
    (4) Not more than the following numbers of persons selected by the 
Warden:
    (i) Eight citizens; and
    (ii) Ten representatives of the press.
    (d) No other person shall be present at the execution, unless leave 
for such person's presence is granted by the Director of the Federal 
Bureau of Prisons. No person younger than 18 years of age shall witness 
the execution.
    (e) The Warden should notify those individuals described in 
paragraph (c) of this section as soon as practicable before the 
designated time of execution.
    (f) No photographic or other visual or audio recording of the 
execution shall be permitted.
    (g) After the execution has been carried out, qualified personnel 
selected by the Warden shall conduct an examination of the body of the 
prisoner to determine that death has occurred and shall inform the 
Marshal and Warden of his determination. Upon notification of prisoner's 
death, the Marshal shall complete and sign the Return described in 
Sec. 26.2(b) or any similar document and shall file such document with 
the sentencing court.
    (h) The remains of the prisoner shall be disposed of according to 
procedures established by the Director of the Federal Bureau of Prisons.



Sec. 26.5  Attendance at or participation in executions by Department of Justice personnel.

    No officer or employee of the Department of Justice shall be 
required to be in attendance at or to participate in any execution if 
such attendance or participation is contrary to the moral or religious 
convictions of the officer

[[Page 395]]

or employee, or if the employee is a medical professional who considers 
such participation or attendance contrary to medical ethics. For 
purposes of this section, the term ``participation'' includes personal 
preparation of the condemned individual and the apparatus used for 
execution and supervision of the activities of other personnel in 
carrying out such activities.



PART 29--MOTOR VEHICLE THEFT PREVENTION ACT REGULATIONS--Table of Contents




Sec.
29.1  Purpose.
29.2  Definitions.
29.3  Administration by the Bureau of Justice Assistance.
29.4  Election to participate by states and localities.
29.5  Notification of law enforcement officials.
29.6  Limited participation by states and localities permitted.
29.7  Withdrawal from the program by states and localities.
29.8  Motor vehicle owner participation.
29.9  Motor vehicles for hire.
29.10  Owner withdrawal from the program.
29.11  Sale or other transfer of an enrolled vehicle.
29.12  Specified conditions under which stops may be authorized.
29.13  No new conditions without consent.

    Authority: 28 U.S.C. 509, 510; 42 U.S.C. 14171.

    Source: 61 FR 40725, Aug. 6, 1996, unless otherwise noted.



Sec. 29.1  Purpose.

    (a) The purpose of this part is to implement the Motor Vehicle Theft 
Prevention Act, 42 U.S.C. 14171, which requires the Attorney General to 
develop, in cooperation with the states, a national voluntary motor 
vehicle theft prevention program. The program will be implemented by 
states and localities, at their sole option.
    (b) Under this program, individual motor vehicle owners voluntarily 
sign a consent form in which the owner
    (1) Indicates that the identified vehicle is not normally operated 
under certain specified conditions and
    (2) Agrees to display a program decal or license plate on the 
vehicle and to permit law enforcement officials in any jurisdiction to 
stop the motor vehicle if it is being operated under specified 
conditions and take reasonable steps to determine whether the vehicle is 
being operated by or with the permission of the owner.
    (c) The regulations set forth in this part establish the conditions 
under which an owner may consent to having his or her vehicle stopped 
and the manner in which a State or locality may elect to participate.



Sec. 29.2  Definitions.

    For the purposes of this part:
    (a) The Act or the MVTPA means the Motor Vehicle Theft Prevention 
Act.
    (b) Owner means the person or persons whose name(s) appear(s) on the 
certificate of title or to whom the car is registered. In the instance 
of a new vehicle awaiting sale or lease or in the instance of a used 
vehicle where the title has been assigned to a dealership, the term 
``owner'' shall be construed to mean new and used automobile 
dealerships.
    (c) The Program refers to the National Voluntary Motor Vehicle Theft 
Prevention Program implemented pursuant to the Motor Vehicle Prevention 
Act.



Sec. 29.3  Administration by the Bureau of Justice Assistance.

    The Director of the Bureau of Justice Assistance shall administer 
this Program and shall issue guidelines governing the operational 
aspects of it, including the design and production of a standardized, 
universally recognizable MVTPA reflective decal, as well as model 
consent and registration forms.



Sec. 29.4  Election to participate by states and localities.

    (a) Any State or locality that wishes to participate in the program 
shall register with the BJA and request program enrollment materials. 
Registration forms will be available upon request. Participation in the 
program is wholly voluntary on the part of the State or locality.
    (b) By electing to participate in the program, a State or locality 
agrees to do the following:
    (1) Make program enrollment materials, including consent forms, 
available to interested motor vehicle owners;
    (2) Collect completed consent forms;

[[Page 396]]

    (3) Provide enrolled motor vehicle owners with the decal(s), and 
license plate(s) applicable to their program condition or conditions and 
instructions governing program participation;
    (4) Take the necessary steps to authorize law enforcement officials 
to stop motor vehicles enrolled in the program; and
    (5) Comply with any other regulation(s) or guideline(s) governing 
participation in this program.



Sec. 29.5  Notification of law enforcement officials.

    In addition to the actions enumerated in Sec. 29.4(b), as a 
condition of participating in the program, a State or locality must 
agree to take reasonable steps to ensure that law enforcement officials 
under its jurisdiction are familiar with the program and with the 
conditions under which motor vehicles may be stopped.



Sec. 29.6  Limited participation by states and localities permitted.

    A State or locality need not authorize the stopping of motor 
vehicles under all sets of conditions specified under the program in 
order to participate in the program.



Sec. 29.7  Withdrawal from the program by states and localities.

    Any participating State or locality may withdraw from the program at 
any time by sending written notification to BJA and by notifying 
participating owners individually by mail of the decision to withdraw.



Sec. 29.8  Motor vehicle owner participation.

    In order to participate in this program, the owner(s) of a motor 
vehicle must sign a program consent form and register with a 
participating State or locality. If the vehicle is registered to more 
than one person, both owners must sign the consent form. By enrolling in 
the federal program, the owner(s) of the motor vehicle--
    (a) State(s) that the vehicle is not normally operated under the 
specified conditions; and
    (b) Agree(s) to:
    (1) Display the program decals or devices on the owner's vehicle;
    (2) Permit law enforcement officials in any State or locality to 
stop the motor vehicle if the vehicle is being operated under the 
specified conditions and take reasonable steps to determine whether the 
vehicle is being operated by or with the permission of the owner;
    (3) Expressly advise any borrower of the vehicle of the existence of 
this agreement, and that such user will be subject to being stopped by 
law enforcement officials if the vehicle is being operated under the 
specified condition(s) even if the officials have no other basis for 
believing the vehicle is being operated unlawfully; and
    (4) Comply with any other regulation(s) or guideline(s) governing 
participation in this program.



Sec. 29.9  Motor vehicles for hire.

    (a) Any person who is in the business of renting or leasing motor 
vehicles and who rents or leases a motor vehicle on which a program 
decal or device is affixed shall notify the person to whom the motor 
vehicle is rented or leased about the program, prior to transferring 
possession of the vehicle.
    (b) The notice required by this section shall be printed in bold 
type in the rental or lease agreement, and on the envelope in which the 
rental agreement is placed. The notice provision in the rental or lease 
agreement must utilize a larger font than the standard type in the 
agreement. The notice must state that the motor vehicle may be stopped 
by law enforcement officials if it is operated under the conditions 
specified by the program in which the car is enrolled even if the 
officials have no other basis for believing that the vehicle is being 
operated unlawfully.
    (c) Failure to provide the notice required by this section to a 
renter or lessee may result in the assessment of a civil penalty by the 
Assistant Attorney General, Civil Division, or his or her designee, of 
an amount not to exceed $5,000. No penalty shall be assessed unless the 
person charged has been given notice and an opportunity for a hearing of 
such charge.

[[Page 397]]



Sec. 29.10  Owner withdrawal from the program.

    An owner may withdraw from the program at any time by completely 
removing the program decal and changing the license plate if necessary. 
The owner is also encouraged to notify the participating agency in 
writing of such withdrawal.



Sec. 29.11  Sale or other transfer of an enrolled vehicle.

    Upon the transferral of ownership of an enrolled vehicle, the 
transferring owner must completely remove the program decals, change the 
license plate(s) if necessary, and is encouraged to notify the 
participating agency in writing of the transfer of ownership of the 
vehicle.



Sec. 29.12  Specified conditions under which stops may be authorized.

    A motor vehicle owner may voluntarily enroll his or her vehicle(s) 
and give written consent to law enforcement official to stop the vehicle 
if it is being operated under any or all the conditions set forth in 
this section. For each condition, the owner(s) must grant consent and 
affix a separate decal, device, or license plate.
    (a) Time. A motor vehicle owner may authorize law enforcement 
officers to stop the enrolled vehicle if it is being operated between 
the hours of 1:00 AM and 5:00 AM. By enrolling in a program with this 
condition, the owner must state that the vehicle is not normally 
operated between the specified hours, and that the owner understands 
that the operation of the vehicle between those hours provides 
sufficient grounds for a law enforcement officer to reasonably believe 
that the vehicle is not being operated by or with the consent of the 
owner, even if the law enforcement official has no other basis for 
believing that the vehicle is being operated unlawfully.
    (b) Border crossing or port entry. A motor vehicle owner may 
authorize law enforcement officers to stop the enrolled vehicle if it 
crosses, is about to cross or is about to be transported across a United 
States land border, or if it enters a United States port. For purposes 
of this section, the phrase ``about to cross a United States land 
border'' means the vehicle is operated or transported within one mile of 
a United States land border. Participating States or localities may 
implement this provision in accordance with local conditions, provided 
that a participating State or locality may not extend the applicable 
geographic area beyond one mile from the United States land border. By 
enrolling in a program with this condition, the owner must state that 
the vehicle is not normally driven across a border or into a port, and 
that the owner understands that the operation or transport of the 
vehicle within a mile of a United States land border or into a port 
provides sufficient grounds for a law enforcement officer to believe 
that the vehicle is not being operated by or with the consent of the 
owner even if the law enforcement officer has no other basis for 
believing that the vehicle is being operated unlawfully.



Sec. 29.13  No new conditions without consent.

    After the program has begun, new conditions under which a vehicle 
may be stopped may only be added to an existing program if the owner 
consents to the new condition or conditions.



PART 30--INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF JUSTICE PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
30.1  What is the purpose of these regulations?
30.2  What definitions apply to these regulations?
30.3  What programs and activities of the Department are subject to 
          these regulations?
30.4  What are the Attorney General's general responsibilities under the 
          Order?
30.5  What is the Attorney General's obligation with respect to Federal 
          interagency coordination?
30.6  What procedures apply to the selection of programs and activities 
          under these regulations?
30.7  How does the Attorney General communicate with state and local 
          officials concerning the Department's programs and activities?
30.8  How does the Attorney General provide an opportunity to comment on 
          proposed Federal financial assistance and direct Federal 
          development?

[[Page 398]]

30.9  How does the Attorney General receive and respond to comments?
30.10  How does the Attorney General make efforts to accommodate 
          intergovernmental concerns?
30.11  What are the Attorney General's obligations in interstate 
          situations?
30.12  How may a state simplify, consolidate, or substitute federally 
          required state plans?
30.13  May the Attorney General waive any provision of these 
          regulations?

    Authority: Executive Order 12372, July 14, 1982 (47 FR 30959), as 
amended April 8, 1983 (48 FR 15887); Sec. 401 of the Intergovernmental 
Cooperation Act of 1968 as amended (31 U.S.C. 6506); Sec. 204 of the 
Demonstration Cities and Metropolitan Development Act of 1966 as amended 
(42 U.S.C. 3334).

    Source: Order No. 1018-83, 48 FR 29246, June 24, 1983, unless 
otherwise noted.



Sec. 30.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968 and section 204 of the Demonstration Cities and 
Metropolitan Development Act of 1966.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional, and local coordination for review of 
proposed federal financial assistance and direct federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 30.2  What definitions apply to these regulations?

    Department means the U.S. Department of Justice.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Attorney General means the Attorney General or an official or 
employee of the Department acting for the Attorney General under a 
delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 30.3  What programs and activities of the Department are subject to these regulations?

    The Attorney General publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and identifies which of these are subject to the 
requirements of section 204 of the Demonstration Cities and Metropolitan 
Development Act.



Sec. 30.4  What are the Attorney General's general responsibilities under the Order?

    (a) The Attorney General provides opportunities for consultation by 
elected officials of those state and local governments that would 
provide the non-federal funds for, or that would be directly affected 
by, proposed federal financial assistance from, or direct federal 
development by, the Department.
    (b) If a state adopts a process under the Order to review and 
coordinate proposed federal financial assistance and direct federal 
development, the Attorney General, to the extent permitted by law:
    (1) Uses the state process to determine official views of state and 
local elected officials;
    (2) Communicates with state and local elected officials as early in 
a program planing cycle as is reasonably feasible to explain specific 
plans and actions;
    (3) Makes efforts to accommodate state and local elected officials' 
concerns with proposed federal financial assistance and direct federal 
development that are communicated through the state process;
    (4) Allows the states to simplify and consolidate existing federally 
required state plan submissions;
    (5) Where state planning and budgeting systems are sufficient and 
where

[[Page 399]]

permitted by law, encourages the substitution of state plans for 
federally required state plans;
    (6) Seeks the coordination of views of affected state and local 
elected officials in one state with those of another state when proposed 
federal financial assistance or direct federal development has an impact 
on interstate metropolitan urban centers or other interstate areas; and
    (7) Support state and local governments by discouraging the 
reauthorization or creations of any planning organization which is 
federally-funded, which has a limited purpose, and which is not 
adequately representative of, or accountable to, state or local elected 
officials.
    (c) In considering comments received under these regulations, the 
Attorney General considers the objectives set forth in 31 U.S.C. 
6506(b).



Sec. 30.5  What is the Attorney General's obligation with respect to Federal interagency coordination?

    The Attorney General, to the extent practicable, consults with and 
seeks advice from all other substantially affected federal departments 
and agencies in an effort to assure full coordination between such 
agencies and the Department regarding programs and activities covered 
under these regulations.



Sec. 30.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 30.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Attorney 
General of the Department's programs and activities selected for that 
process.
    (c) A state may notify the Attorney General of changes in its 
selections at any time. For each change, the state shall submit to the 
Attorney General an assurance that the state has consulted with local 
elected officials regarding the change. The Department may establish 
deadlines by which states are required to inform the Attorney General of 
changes in their program selections.
    (d) The Attorney General uses a State's process as soon as feasible, 
depending on individual programs and activities, after the Attorney 
General is notified of its selections.



Sec. 30.7  How does the Attorney General communicate with state and local officials concerning the Department's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 30.6, the Attorney General, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Attorney General provides notice to directly affected state, 
areawide, regional, and local entities in a state or proposed federal 
financial assistance or direct federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process.

This notice may be made by publication in the Federal Register or other 
means which the Department in its discretion deems appropriate.



Sec. 30.8  How does the Attorney General provide an opportunity to comment on proposed Federal financial assistance and direct Federal development?

    (a) Except in unusual circumstances, the Attorney General gives 
state processes or directly affected state, areawide, regional, and 
local officials and entities:
    (1) At least 30 days from the date established by the Attorney 
General to comment on proposed federal financial assistance in the form 
of noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Attorney 
General to

[[Page 400]]

comment on proposed direct federal development or federal financial 
assistance other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.
    (c) Applicants for programs and activities subject to section 204 of 
the Demonstration Cities and Metropolitan Act shall allow areawide 
agencies a 60-day opportunity for review and comments.



Sec. 30.9  How does the Attorney General receive and respond to comments?

    (a) The Attorney General follows the procedures in Sec. 30.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies; and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 30.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional, or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional, and local 
officials and entities may submit comments either to the applicant or to 
the Department.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional, and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by the single point of contact, the 
Attorney General follows the procedures of Sec. 30.10 of this part.
    (e) The Attorney General considers comments which do not constitute 
a state process recommendation submitted under these regulations and for 
which the Attorney General is not required to apply the procedures of 
Sec. 30.10 of this part, when such comments are provided by a single 
point of contact, by the applicant, or directly to the Department by a 
commenting party.



Sec. 30.10  How does the Attorney General make efforts to accommodate intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Attorney General 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with a written explanation 
of the decision, in such form as the Attorney General in his or her 
discretion deems appropriate. The Attorney General may also supplement 
the written explanation by providing the explanation to the single point 
of contact by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Attorney General informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Attorney General has reviewed the decision and determined 
that, because of unusual circumstances, the waiting period of at least 
ten days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification five days after the date of mailing of 
such notification.



Sec. 30.11  What are the Attorney General's obligations in interstate situations?

    (a) The Attorney General is responsible for:
    (1) Identifying proposed federal financial assistance and direct 
federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activity;

[[Page 401]]

    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity; and
    (4) Responding pursuant to Sec. 30.10 if the Attorney General 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact in cases in which the review, coordination, 
and communication with the Department have been delegated.
    (b) The Attorney General uses the procedures in Sec. 30.10 if a 
state process provides a state process recommendation to the Department 
through a single point of contact.



Sec. 30.12  How may a state simplify, consolidate, or substitute federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute federally required state plans 
without prior approval by the Attorney General.
    (c) The Attorney General reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet federal requirements.



Sec. 30.13  May the Attorney General waive any provision of these regulations?

    In an emergency, the Attorney General may waive any provision of 
these regulations.



PART 31--FORMULA GRANTS--Table of Contents




                      Subpart A--General Provisions

Sec.
31.1  General.
31.2  Statutory authority.
31.3  Formula grant plan and applications.

                     Subpart B--Eligible Applicants

31.100  Eligibility.
31.101  Designation of State agency.
31.102  State agency structure.
31.103  Membership of supervisory board.

                     Subpart C--General Requirements

31.200  General.
31.201  Audit.
31.202  Civil rights.
31.203  Open meetings and public access to records.

              Subpart D--Juvenile Justice Act Requirements

31.300  General.
31.301  Funding.
31.302  Applicant State agency.
31.303  Substantive requirements.
31.304  Definitions.

              Subpart E--General Conditions and Assurances

31.400  Compliance with statute.
31.401  Compliance with other Federal laws, orders, circulars.
31.402  Application on file.
31.403  Civil rights requirements.

    Authority: 42 U.S.C. 5601 et seq.

    Source: 60 FR 28440, May 31, 1995, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 31.1  General.

    This part defines eligibility and sets forth requirements for 
application for and administration of formula grants to State 
governments authorized by part B, subpart I, of the Juvenile Justice and 
Delinquency Prevention Act.



Sec. 31.2  Statutory authority.

    The Statute establishing the Office of Juvenile Justice and 
Delinquency Prevention and giving authority to make

[[Page 402]]

grants for juvenile justice and delinquency prevention improvement 
programs is the Juvenile Justice and Delinquency Prevention Act of 1974, 
as amended (42 U.S.C. 5601 et seq.).



Sec. 31.3  Formula grant plan and applications.

    Formula Grant Applications for each Fiscal Year should be submitted 
to OJJDP by August 1st (60 days prior to the beginning of the fiscal 
year) or within 60 days after the States are officially notified of the 
fiscal year formula grant allocations. Beginning with FY 1995 and each 
subsequent fiscal year, all Formula Grant Applications are due no later 
than March 31 of the fiscal year for which the funds are allocated.



                     Subpart B--Eligible Applicants



Sec. 31.100  Eligibility.

    All States as defined by section 103(7) of the JJDP Act.



Sec. 31.101  Designation of State agency.

    The Chief Executive of each State which chooses to apply for a 
formula grant shall establish or designate a State agency as the sole 
agency for supervising the preparation and administration of the plan. 
The plan must demonstrate compliance with administrative and supervisory 
board membership requirements established by the OJJDP Administrator 
pursuant to section 299 (c) of the JJDP Act. States must have available 
for review a copy of the State law or executive order establishing the 
State agency and its authority.



Sec. 31.102  State agency structure.

    The State agency may be a discrete unit of State government or a 
division or other component of an existing State crime commission, 
planning agency or other appropriate unit of State government. Details 
of organization and structure are matters of State discretion, provided 
that the agency:
    (a) Is a definable entity in the executive branch with the requisite 
authority to carry out the responsibilities imposed by the JJDP Act;
    (b) Has a supervisory board (i.e., a board of directors, commission, 
committee, council, or other policy board) which has responsibility for 
supervising the preparation and administration of the plan and its 
implementation; and
    (c) Has sufficient staff and staff capability to carry out the 
board's policies and the agency's duties and responsibilities to 
administer the program, develop the plan, process applications, 
administer grants awarded under the plan, monitor and evaluate programs 
and projects, provide administration/support services, and perform such 
accountability functions as are necessary to the administration of 
Federal funds, such as grant close-out and audit of subgrant and 
contract funds. At a minimum, one full-time Juvenile Justice Specialist 
must be assigned to the Formula Grants Program by the State agency. 
Where the State does not currently provide or maintain a full-time 
Juvenile Justice Specialist, the plan must clearly establish and 
document that the program and administrative support staff resources 
currently assigned to the program will temporarily meet the adequate 
staff requirement, and provide an assurance that at least one full-time 
Juvenile Justice Specialist will be assigned to the Formula Grants 
Program by the end of FY 1995 (September 30, 1995).



Sec. 31.103  Membership of supervisory board.

    The State advisory group appointed under section 223(a)(3) may 
operate as the supervisory board for the State agency, at the discretion 
of the Governor. Where, however, a State has continuously maintained a 
broad-based law enforcement and criminal justice supervisory board 
(council) meeting all the requirements of section 402(b)(2) of the 
Justice System Improvement Act of 1979, and wishes to maintain such a 
board, such composition shall continue to be acceptable provided that 
the board's membership includes the chairman and at least two additional 
citizen members of the State advisory group. For purposes of this 
requirement a citizen member is defined as any person who is not a full-
time government employee or elected official. Any executive committee of 
such a board must include the same proportion of juvenile

[[Page 403]]

justice advisory group members as are included in the total board 
membership. Any other proposed supervisory board membership is subject 
to case by case review and approval of the OJJDP Administrator and will 
require, at a minimum, ``balanced representation'' of juvenile justice 
interests.



                     Subpart C--General Requirements



Sec. 31.200  General.

    This subpart sets forth general requirements applicable to formula 
grant recipients under the JJDP Act of 1974, as amended. Applicants must 
assure compliance or submit necessary information on these requirements.



Sec. 31.201  Audit.

    The State must assure that it adheres to the audit requirements 
enumerated in the ``Financial and Administrative Guide for Grants, Guide 
Manual 7100.1 (current edition). Chapter 8 of the Manual contains a 
comprehensive statement of audit policies and requirements relative to 
grantees and subgrantees.



Sec. 31.202  Civil rights.

    (a) To carry out the State's Federal civil rights responsibilities 
the plan must:
    (1) Designate a civil rights contact person who has lead 
responsibility in insuring that all applicable civil rights 
requirements, assurances, and conditions are met and who shall act as 
liaison in all civil rights matters with OJJDP and the OJP Office of 
Civil Rights Compliance (OCRC); and
    (2) Provide the Council's Equal Employment Opportunity Program 
(EEOP), if required to maintain one under 28 CFR 42.301, et seq., where 
the application is for $500,000 or more.
    (b) The application must provide assurance that the State will:
    (1) Require that every applicant required to formulate an EEOP in 
accordance with 28 CFR 42.201 et seq., submit a certification to the 
State that it has a current EEOP on file, which meets the requirement 
therein;
    (2) Require that every criminal or juvenile justice agency applying 
for a grant of $500,000 or more submit a copy of its EEOP (if required 
to maintain one under 28 CFR 42.301, et seq.) to OCRC at the time it 
submits its application to the State;
    (3) Inform the public and subgrantees of affected persons' rights to 
file a complaint of discrimination with OCRC for investigation;
    (4) Cooperate with OCRC during compliance reviews of recipients 
located within the State; and
    (5) Comply, and that its subgrantees and contractors will comply 
with the requirement that, in the event that a Federal or State court or 
administrative agency makes a finding of discrimination of the basis of 
race, color, religion, national origin, or sex (after a due process 
hearing) against a State or a subgrantee or contractor, the affected 
recipient or contractor will forward a copy of the finding to OCRC.



Sec. 31.203  Open meetings and public access to records.

    The State must assure that the State agency, its supervisory board 
established pursuant to section 299(c) and the State advisory group 
established pursuant to section 223(a)(3) will follow applicable State 
open meeting and public access laws and regulations in the conduct of 
meetings and the maintenance of records relating to their functions.



              Subpart D--Juvenile Justice Act Requirements



Sec. 31.300  General.

    This subpart sets forth specific JJDP Act requirements for 
application and receipt of formula grants.



Sec. 31.301  Funding.

    (a) Allocation to States. Funds shall be allocated annually among 
the States on the basis of relative population of persons under age 
eighteen. If the amount allocated for Title II (other than parts D and 
E) of the JJDP Act is less than $75 million, the amount allocated to 
each State will not be less than $325,000, nor more than $400,000, 
provided that no State receives less than its allocation for FY 1992. 
The territories will receive not less than $75,000 or more than 
$100,000. If the amount appropriated for Title II (other than parts D 
and E) is $75 million or

[[Page 404]]

more, the amount allocated for each State will be not less than 
$400,000, nor more than $600,000, provided that parts D and E have been 
funded in the full amounts authorized. For the Territories, the amount 
is fixed at $100,000. For each of FY's 1994 and 1995, the minimum 
allocation is established at $600,000 for States and $100,000 for 
Territories.
    (b) Funds for local use. At least two-thirds of the formula grant 
application to the state (other than the section 222(d) State Advisory 
Group set aside) must be used for programs by local government, local 
private agencies, and eligible Indian tribes, unless the State applies 
for and is granted a waiver by the OJJDP. The proportion of pass-through 
funds to be made available to eligible Indian tribes shall be based upon 
that proportion of the state youth population under 18 years of age who 
reside in geographical areas where the tribes perform law enforcement 
functions. Pursuant to section 223(a)(5)(C) of the JJDP Act, each of the 
standards set forth in paragraphs (b)(1)(i) through (iii) of this 
section must be met in order to establish the eligibility of Indian 
tribes to receive pass through funds:
    (1)(i) The tribal entity must be recognized by the Secretary of the 
Interior as an Indian tribe that performs law enforcement functions as 
defined in paragraph (b) (2) of this section.
    (ii) The tribal entity must agree to attempt to comply with the 
requirements of section 223(a)(12)(A), (13), and (14) of the JJDP Act; 
and
    (iii) The tribal entity must identify the juvenile justice needs to 
be served by these funds within the geographical area where the tribe 
performs law enforcement functions.
    (2) Law enforcement functions are deemed to include those activities 
pertaining to the custody of children, including, but not limited to, 
police efforts to prevent, control, or reduce crime and delinquency or 
to apprehend criminal and delinquent offenders, and/or activities of 
adult and juvenile corrections, probation, or parole authorities.
    (3) To carry out this requirement, OJJDP will annually provide each 
state with the most recent Bureau of Census statistics on the number of 
persons under age 18 living within the state, and the number of persons 
under age 18 who reside in geographical areas where Indian tribes 
perform law enforcement functions.
    (4) Pass-through funds available to tribal entities under section 
223(a)(5)(C) shall be made available within states to Indian tribes, 
combinations of Indian tribes, or to an organization or organizations 
designated by such tribe(s), that meet the standards set forth in 
paragraphs (b)(1)(i)-(iii) of this section. Where the relative number of 
persons under age 18 within a geographic area where an Indian tribe 
performs law enforcement functions is too small to warrant an individual 
subgrant or subgrants, the state may, after consultation with the 
eligible tribe(s), make pass-through funds available to a combination of 
eligible tribes within the state, or to an organization or organizations 
designated by and representing a group of qualifying tribes, or target 
the funds on the larger tribal jurisdictions within the state.
    (5) Consistent with section 223(a)(4) of the JJDP Act, the state 
must provide for consultation with Indian tribes or a combination of 
eligible tribes within the state, or an organization or organizations 
designated by qualifying tribes, in the development of a state plan 
which adequately takes into account the juvenile justice needs and 
requests of those Indian tribes within the state.
    (c) Match. Formula grants under the JJDP Act shall be 100% of 
approved costs, with the exception of planning and administration funds, 
which require a 100 percent cash match (dollar for dollar), and 
construction projects funded under section 299C(a)(2) which also require 
a 100 percent cash match.
    (d) Funds for administration. Not more than ten percent of the total 
annual Formula Grant award may be utilized to develop the annual 
juvenile justice plan and pay for administrative expenses, including 
project monitoring. These funds are to be matched on a dollar for dollar 
basis. The State shall make available needed funds for planning and 
administration to units of local government on an equitable basis. Each 
annual application must identify uses of such funds.

[[Page 405]]

    (e) Nonparticipating States. Pursuant to section 223(d), the OJJDP 
Administrator shall endeavor to make the fund allotment under section 
222(a), of a State which chooses not to participate or loses its 
eligibility to participate in the formula grant program, directly 
available to local public and private nonprofit agencies within the 
nonparticipating State. The funds may be used only for the purpose(s) of 
achieving deinstitutionalization of status offenders and nonoffenders, 
separation of juveniles from incarcerated adults, removal of juveniles 
from adult jails and lockups, and reducing the disproportionate 
confinement of minority youth in secure facilities. Absent a request for 
extension which demonstrates compelling circumstances justifying the 
reallocation of formula grant funds back to the State to which the funds 
were initially allocated, or the proceedings under section 223(d), 
formula grant funds allocated to a State which has failed to submit an 
application, plan, or monitoring data establishing its eligibility for 
the funds will, beginning with FY 1995 be reallocated to the 
nonparticipating State program on September 30 of the fiscal year for 
which the funds were appropriated. Reallocated funds will be 
competitively awarded to eligible recipients pursuant to program 
announcements published in the Federal Register.



Sec. 31.302  Applicant State agency.

    (a) Pursuant to section 223(a)(1), section 223(a)(2) and section 
299(c) of the JJDP Act, the State must assure that the State agency 
approved under section 299(c) has been designated as the sole agency for 
supervising the preparation and administration of the plan and has the 
authority to implement the plan.
    (b) Advisory group. Pursuant to section 223(a)(3) of the JJDP Act, 
the Chief Executive:
    (1) Shall establish an advisory group pursuant to section 223(a)(3) 
of the JJDP Act. The State shall provide a list of all current advisory 
group members, indicating their respective dates of appointment and how 
each member meets the membership requirements specified in this section 
of the Act.
    (2) Should consider, in meeting the statutory membership 
requirements of section 223(A)(3) (A)-(E), appointing at least one 
member who represents each of the following: A locally elected official 
representing general purpose local government; a law enforcement 
officer; representatives of juvenile justice agencies, including a 
juvenile or family court judge, a probation officer, a prosecutor, and a 
person who routinely provides legal representation to youth in juvenile 
court; a public agency representative concerned with delinquency 
prevention and treatment; a representative from a private, non-profit 
organization, such as a parents group, concerned with teenage drug and 
alcohol abuse; a high school principal; a recreation director; a 
volunteer who works with delinquent or at risk youth; a person with a 
special focus on the family; a youth worker experienced with programs 
that offer alternatives to incarceration; persons with special 
competence in addressing programs of school violence and vandalism and 
alternatives to expulsion and suspension; and persons with knowledge 
concerning learning disabilities, child abuse, neglect, and youth 
violence.
    (c) The State shall assure that it complies with the Advisory Group 
financial support requirement of section 222(d) and the composition and 
function requirements of section 223(a)(3) of the JJDP Act.



Sec. 31.303  Substantive requirements.

    (a) Assurances. The State must certify through the provision of 
assurances that it has complied and will comply (as appropriate) with 
sections 223(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), 
(16), (17), (18), (19), (20), (21), (22), and (25), and sections 229 and 
261(d), in formulating and implementing the State plan. The Formula 
Grant Application kit provides a form and guidance for the provision of 
assurances. OJJDP interprets the section 223(a)(16) assurance as 
satisfied by an affirmation that State law and/or policy clearly require 
equitable treatment on the required bases; or by providing in the State 
plan that the State agency will require an assurance of equitable 
treatment by all Formula Grant subgrant and contract recipients, and

[[Page 406]]

establish as a program goal, in conjunction with the State Advisory 
Group, the adoption and implementation of a statewide juvenile justice 
policy that all youth in the juvenile justice system will be treated 
equitably without regard to gender, race, family income, and mentally, 
emotionally, or physically handicapping conditions. OJJDP interprets the 
section 223(a)(25) assurance as satisfied by a provision in the State 
plan for the State agency and the State Advisory Group to promulgate 
policies and budget priorities that require the funding of programs that 
are part of a comprehensive and coordinated community system of services 
as set forth in section 103(19) of the JJDP Act. This requirement is 
applicable when a State's formula grant for any fiscal year exceeds 105 
percent of the State's formula grant for FY 1992.
    (b) Serious juvenile offender emphasis. Pursuant to sections 
101(a)(10) and 223(a)(10) of the JJDP Act, OJJDP encourages States that 
have identified serious and violent juvenile offenders as a priority 
problem to allocate formula grant funds to programs designed for serious 
and violent juvenile offenders at a level consistent with the extent of 
the problem as identified through the State planning process. Particular 
attention should be given to improving prosecution, sentencing 
procedures, providing resources necessary for effective rehabilitation, 
and facilitating the coordination of services between the juvenile 
justice and criminal justice systems.
    (c) Deinstitutionalization of status offenders and non-offenders. 
Pursuant to section 223(a)(12)(A) of the JJDP Act, the State shall:
    (1) Describe its plan, procedure, and timetable covering the three-
year planning cycle, for assuring that the requirements of this section 
are met. Refer to Sec. 31.303(f)(3) for the rules related to the valid 
court order exception to this Act requirement.
    (2) Describe the barriers the State faces in achieving full 
compliance with the provisions of this requirement.
    (3) Federal wards. Apply this requirement to alien juveniles under 
Federal jurisdiction who are held in State or local facilities.
    (4) DSO compliance. Those States which, based upon the most recently 
submitted monitoring report, have been found to be in full compliance 
with section 223(a)(12)(A) may, in lieu of addressing paragraphs (c)(1) 
and (2) of this section, provide an assurance that adequate plans and 
resources are available to maintain full compliance.
    (5) Submit the report required under section 223(a)(12)(B) of the 
Act as part of the annual monitoring report required by section 
223(a)(15) of the Act.
    (d) Contact with incarcerated adults. (1) Pursuant to section 
223(a)(13) of the JJDP Act the State shall:
    (i) Separation. Describe its plan and procedure, covering the three-
year planning cycle, for assuring that the requirements of this section 
are met. The term contact includes any physical or sustained sight or 
sound contact between juvenile offenders in a secure custody status and 
incarcerated adults, including inmate trustees. A juvenile offender in a 
secure custody status is one who is physically detained or confined in a 
locked room or other area set aside or used for the specific purpose of 
securely detaining persons who are in law enforcement custody. Secure 
detention or confinement may result either from being placed in such a 
room or area and/or from being physically secured to a cuffing rail or 
other stationary object. Sight contact is defined as clear visual 
contact between incarcerated adults and juveniles within close proximity 
to each other. Sound contact is defined as direct oral communication 
between incarcerated adults and juvenile offenders. Separation must be 
accomplished architecturally or through policies and procedures in all 
secure areas of the facility which include, but are not limited to, such 
areas as admissions, sleeping, and shower and toilet areas. Brief and 
inadvertent or accidental contact between juvenile offenders in a secure 
custody status and incarcerated adults in secure areas of a facility 
that are not dedicated to use by juvenile offenders and which are 
nonresidential, which may include dining, recreational, educational, 
vocational, health care, sally ports or other entry areas, and 
passageways (hallways), would not require a facility or the State to 
document or

[[Page 407]]

report such contact as a violation. However, any contact in a dedicated 
juvenile area, including any residential area of a secure facility, 
between juveniles in a secure custody status and incarcerated adults 
would be a reportable violation.
    (ii) In those instances where accused juvenile criminal-type 
offenders are authorized to be temporarily detained in facilities where 
adults are confined, the State must set forth the procedures for 
assuring no sight or sound contact between such juveniles and confined 
adults.
    (iii) Describe the barriers which may hinder the separation of 
alleged or adjudicated criminal type offenders, status offenders and 
non-offenders from incarcerated adults in any particular jail, lockup, 
detention or correctional facility.
    (iv) Those States which, based upon the most recently submitted 
monitoring report, have been found to be in compliance with section 
223(a)(13) may, in lieu of addressing paragraphs (d)(1)(i), (ii), and 
(iii) of this section, provide an assurance that adequate plans and 
resources are available to maintain compliance.
    (v) Assure that adjudicated delinquents are not reclassified 
administratively and transferred to an adult (criminal) correctional 
authority to avoid the intent of separating juveniles from adult 
criminals in jails or correctional facilities. A State is not prohibited 
from placing or transferring an alleged or adjudicated delinquent who 
reaches the State's age of full criminal responsibility to an adult 
facility when required or authorized by State law. However, the 
administrative transfer, without statutory direction or authorization, 
of a juvenile offender to an adult correctional authority, or a transfer 
within a mixed juvenile and adult facility for placement with adult 
criminals, either before or after a juvenile reaches the age of full 
criminal responsibility, is prohibited. A State is also precluded from 
transferring adult offenders to a juvenile correctional authority for 
placement in a juvenile facility. This neither prohibits nor restricts 
the waiver or transfer of a juvenile to criminal court for prosecution, 
in accordance with State law, for a criminal felony violation, nor the 
detention or confinement of a waived or transferred criminal felony 
violator in an adult facility.
    (2) Implementation. The requirement of this provision is to be 
planned and implemented immediately by each State.
    (e) Removal of juveniles from adult jails and lockups. Pursuant to 
section 223(a)(14)of the JJDP Act, the State shall:
    (1) Describe its plan, procedure, and timetable for assuring that 
requirements of this section will be met beginning after December 8, 
1985. Refer to Sec. 31.303(f)(4) to determine the regulatory exception 
to this requirement.
    (2) Describe the barriers that a State faces in removing all 
juveniles from adult jails and lockups. This requirement excepts only 
those alleged or adjudicated juvenile delinquents placed in a jail or a 
lockup for up to six hours from the time they enter a secure custody 
status or immediately before or after a court appearance, those 
juveniles formally waived or transferred to criminal court and against 
whom criminal felony charges have been filed, or juveniles over whom a 
criminal court has original or concurrent jurisdiction and such court's 
jurisdiction has been invoked through the filing of criminal felony 
charges.
    (3) Collocated facilities. (i) Determine whether or not a facility 
in which juveniles are detained or confined is an adult jail or lockup. 
The JJDP Act prohibits the secure custody of juveniles in adult jails 
and lockups, except as otherwise provided under the Act and implementing 
OJJDP regulations. Juvenile facilities collocated with adult facilities 
are considered adult jails or lockups absent compliance with criteria 
established in paragraphs (e)(3)(i)(C)(1) through (4) of this section.
    (A) A collocated facility is a juvenile facility located in the same 
building as an adult jail or lockup, or is part of a related complex of 
buildings located on the same grounds as an adult jail or lockup. A 
complex of buildings is considered ``related'' when it shares physical 
features such as walls and fences, or services beyond mechanical 
services (heating, air conditioning, water and

[[Page 408]]

sewer), or the specialized services that are allowable under paragraph 
(e)(3)(i)(C)(3) of this section.
    (B) The State must determine whether a collocated facility qualifies 
as a separate juvenile detention facility under the four criteria set 
forth in paragraphs (e)(3)(i)(C) (1) through (4) of this section for the 
purpose of monitoring compliance with section 223(a) (12)(A), (13) and 
(14) of the JJDP Act.
    (C) Each of the following four criteria must be met in order to 
ensure the requisite separateness of a juvenile detention facility that 
is collocated with an adult jail or lockup:
    (1) Separation between juveniles and adults such that there could be 
no sustained sight or sound contact between juveniles and incarcerated 
adults in the facility. Separation can be achieved architecturally or 
through time-phasing of common use nonresidential areas; and
    (2) Separate juvenile and adult programs, including recreation, 
education, vocation, counseling, dining, sleeping, and general living 
activities. There must be an independent and comprehensive operational 
plan for the juvenile detention facility which provides for a full range 
of separate program services. No program activities may be shared by 
juveniles and incarcerated adults. Time-phasing of common use 
nonresidential areas is permissible to conduct program activities. 
Equipment and other resources may be used by both populations subject to 
security concerns; and
    (3) Separate staff for the juvenile and adult populations, including 
management, security, and direct care staff. Staff providing specialized 
services (medical care, food service, laundry, maintenance and 
engineering, etc.) who are not normally in contact with detainees, or 
whose infrequent contacts occur under conditions of separation of 
juveniles and adults, can serve both populations (subject to State 
standards or licensing requirements). The day to day management, 
security and direct care functions of the juvenile detention center must 
be vested in a totally separate staff, dedicated solely to the juvenile 
population within the collocated facilities; and
    (4) In States that have established standards or licensing 
requirements for juvenile detention facilities, the juvenile facility 
must meet the standards (on the same basis as a free-standing juvenile 
detention center) and be licensed as appropriate. If there are no State 
standards or licensing requirements, OJJDP encourages States to 
establish administrative requirements that authorize the State to review 
the facility's physical plant, staffing patterns, and programs in order 
to approve the collocated facility based on prevailing national juvenile 
detention standards.
    (ii) The State must determine that the four criteria are fully met. 
It is incumbent upon the State to make the determination through an on-
site facility (or full construction and operations plan) review and, 
through the exercise of its oversight responsibility, to ensure that the 
separate character of the juvenile detention facility is maintained by 
continuing to fully meet the four criteria set forth in paragraphs 
(e)(3)(i)(C) (1) through (4) of this section.
    (iii) Collocated juvenile detention facilities approved by the State 
and concurred with by OJJDP before December 10, 1996 may be reviewed by 
the State against the regulatory criteria and OJJDP policies in effect 
at the time of the initial approval and concurrence or against the 
regulatory criteria set forth herein, as the State determines. 
Facilities approved on or after the effective date of this regulation 
shall be reviewed against the regulatory criteria set forth herein. All 
collocated facilities are subject to the separate staff requirement 
established by the 1992 Amendments to the JJDP Act, and set forth in 
paragraph (e)(3)(i)(C)(3) of this section.
    (iv) An annual on-site review of the facility must be conducted by 
the compliance monitoring staff person(s) representing or employed by 
the State agency administering the JJDP Act Formula Grants Program. The 
purpose of the annual review is to determine if compliance with the 
criteria set forth in paragraphs (e)(3)(i)(C) (1) through (4) of this 
section is being maintained.

[[Page 409]]

    (4) Those States which, based upon the most recently submitted 
monitoring report, have been found to be in full compliance with section 
223(a)(14) may, in lieu of addressing paragraphs (e) (1) and (2) of this 
section, provide an assurance that adequate plans and resources are 
available to maintain full compliance.
    (f) Monitoring of jails, detention facilities and correctional 
facilities. (1) Pursuant to section 223(a)(15) of the JJDP Act, and 
except as provided by paragraph (f)(7) of this section, the State shall:
    (i) Describe its plan, procedure, and timetable for annually 
monitoring jails, lockups, detention facilities, correctional facilities 
and non-secure facilities. The plan must at a minimum describe in detail 
each of the following tasks including the identification of the specific 
agency(s) responsible for each task.
    (A) Identification of monitoring universe: This refers to the 
identification of all residential facilities which might hold juveniles 
pursuant to public authority and thus must be classified to determine if 
it should be included in the monitoring effort. This includes those 
facilities owned or operated by public and private agencies.
    (B) Classification of the monitoring universe: This is the 
classification of all facilities to determine which ones should be 
considered as a secure detention or correctional facility, adult 
correctional institution, jail, lockup, or other type of secure or 
nonsecure facility.
    (C) Inspection of facilities: Inspection of facilities is necessary 
to ensure an accurate assessment of each facility's classification and 
record keeping. The inspection must include:
    (1) A review of the physical accommodations to determine whether it 
is a secure or non-secure facility or whether adequate sight and sound 
separation between juvenile and adult offenders exists and
    (2) A review of the record keeping system to determine whether 
sufficient data are maintained to determine compliance with section 
223(a) (12), (13) and/or (14).
    (D) Data collection and data verification: This is the actual 
collection and reporting of data to determine whether the facility is in 
compliance with the applicable requirement(s) of section 223(a) (12), 
(13) and/or (14). The length of the reporting period should be 12 months 
of data, but in no case less than 6 months. If the data is self-reported 
by the facility or is collected and reported by an agency other than the 
State agency designated pursuant to section 223(a)(1) of the JJDP Act, 
the plan must describe a statistically valid procedure used to verify 
the reported data.
    (ii) Provide a description of the barriers which the State faces in 
implementing and maintaining a monitoring system to report the level of 
compliance with section 223(a) (12), (13), and (14) and how it plans to 
overcome such barriers.
    (iii) Describe procedures established for receiving, investigating, 
and reporting complaints of violation of section 223(a) (12), (13), and 
(14). This should include both legislative and administrative procedures 
and sanctions.
    (2) For the purpose of monitoring for compliance with section 
223(a)(12)(A) of the Act, a secure detention or correctional facility is 
any secure public or private facility used for the lawful custody of 
accused or adjudicated juvenile offenders or nonoffenders, or used for 
the lawful custody of accused or convicted adult criminal offenders. 
Accused status offenders or nonoffenders in lawful custody can be held 
in a secure juvenile detention facility for up to twenty-four hours, 
exclusive of weekends and holidays, prior to an initial court appearance 
and for an additional twenty-four hours, exclusive of weekends and 
holidays, following an initial court appearance.
    (3) Valid court order. For the purpose of determining whether a 
valid court order exists and a juvenile has been found to be in 
violation of that valid order all of the following conditions must be 
present prior to secure incarceration:
    (i) The juvenile must have been brought into a court of competent 
jurisdiction and made subject to an order issued pursuant to proper 
authority. The order must be one which regulates future conduct of the 
juvenile. Prior to issuance of the order, the juvenile must

[[Page 410]]

have received the full due process rights guaranteed by the Constitution 
of the United States.
    (ii) The court must have entered a judgment and/or remedy in accord 
with established legal principles based on the facts after a hearing 
which observes proper procedures.
    (iii) The juvenile in question must have received adequate and fair 
warning of the consequences of violation of the order at the time it was 
issued and such warning must be provided to the juvenile and to the 
juvenile's attorney and/or legal guardian in writing and be reflected In 
the court record and proceedings.
    (iv) All judicial proceedings related to an alleged violation of a 
valid court order must be held before a court of competent jurisdiction. 
A juvenile accused of violating a valid court order may be held in 
secure detention beyond the 24-hour grace period permitted for a 
noncriminal juvenile offender under OJJDP monitoring policy, for 
protective purposes as prescribed by State law, or to assure the 
juvenile's appearance at the violation hearing, as provided by State 
law, if there has been a judicial determination based on a hearing 
during the 24-hour grace period that there is probable cause to believe 
the juvenile violated the court order. In such case the juveniles may be 
held pending a violation hearing for such period of time as is provided 
by State law, but in no event should detention prior to a violation 
hearing exceed 72 hours exclusive of nonjudicial days. A juvenile 
alleged or found in a violation hearing to have violated a Valid Court 
Order may be held only in a secure juvenile detention or correctional 
facility, and not in an adult jail or lockup.
    (v) Prior to and during the violation hearing the following full due 
process rights must be provided:
    (A) The right to have the charges against the juvenile in writing 
served upon him a reasonable time before the hearing;
    (B) The right to a hearing before a court;
    (C) The right to an explanation of the nature and consequences of 
the proceeding;
    (D) The right to legal counsel, and the right to have such counsel 
appointed by the court if indigent;
    (E) The right to confront witnesses;
    (F) The right to present witnesses;
    (G) The right to have a transcript or record of the proceedings; and
    (H) The right of appeal to an appropriate court.
    (vi) In entering any order that directs or authorizes the placement 
of a status offender in a secure facility, the judge presiding over an 
initial probable cause hearing or violation hearing must determine that 
all the elements of a valid court order (paragraphs (f)(3) (i), (ii) and 
(iii) of this section) and the applicable due process rights (paragraph 
(f)(3)(v) of this section) were afforded the juvenile and, in the case 
of a violation hearing, the judge must obtain and review a written 
report that: reviews the behavior of the juvenile and the circumstances 
under which the juvenile was brought before the court and made subject 
to such order; determines the reasons for the juvenile's behavior; and 
determines whether all dispositions other than secure confinement have 
been exhausted or are clearly inappropriate. This report must be 
prepared and submitted by an appropriate public agency (other than a 
court or law enforcement agency).
    (vii) A non-offender such as a dependent or neglected child cannot 
be placed in secure detention or correctional facilities for violating a 
valid court order.
    (4) Removal exception (section 223(a)(14)). The following conditions 
must be met in order for an accused juvenile criminal-type offender, 
awaiting an initial court appearance, to be detained up to 24 hours 
(excluding weekends and holidays) in an adult jail or lockup:
    (i) The State must have an enforceable State law requiring an 
initial court appearance within 24 hours after being taken into custody 
(excluding weekends and holidays);
    (ii) The geographic area having jurisdiction over the juvenile is 
outside a metropolitan statistical area pursuant to the Bureau of 
Census' current designation;

[[Page 411]]

    (iii) A determination must be made that there is no existing 
acceptable alternative placement for the juvenile pursuant to criteria 
developed by the State and approved by OJJDP;
    (iv) The adult jail or lockup must have been certified by the State 
to provide for the sight and sound separation of juveniles and 
incarcerated adults;
    (v) The State must provide documentation that the conditions in 
paragraphs(f)(4)(i) through (iv) of this section have been met and 
received prior approval from OJJDP. OJJDP strongly recommends that jails 
and lockups that incarcerate juveniles be required to provide youth 
specific admissions screening and continuous visual supervision of 
juveniles incarcerated pursuant to this exception; and
    (vi) Pursuant to section 223(a)(14) of the JJDP Act, the nonMSA (low 
population density) exception to the jail and lockup removal requirement 
as described in paragraphs (f)(4) (i) through (v) of this section shall 
remain in effect through 1997, and shall allow for secure custody beyond 
the twenty-four hour period described in paragraph (f)(4)(i) of this 
section when the facility is located where conditions of distance to be 
traveled or the lack of highway, road, or other ground transportation do 
not allow for court appearances within twenty-four hours, so that a 
brief (not to exceed an additional forty-eight hours) delay is 
excusable; or the facility is located where conditions of safety exist 
(such as severely adverse, life-threatening weather conditions that do 
not allow for reasonably safe travel), in which case the time for an 
appearance may be delayed until twenty-four hours after the time that 
such conditions allow for reasonably safe travel. States may use these 
additional statutory allowances only where the precedent requirements 
set forth in paragraphs (f)(4) (i) through (v) of this section have been 
complied with. This may necessitate statutory or judicial (court rule or 
opinion) relief within the State from the twenty-four hour initial court 
appearance standard required by paragraph (f)(4)(i) of this section.
    (5) Reporting requirement. The State shall report annually to the 
Administrator of OJJDP on the results of monitoring for section 
223(a)(12),(13), and (14) of the JJDP Act. The reporting period should 
provide 12 months of data, but shall not be less than six months. The 
report shall be submitted to the Administrator of OJJDP by December 31 
of each year.
    (i) To demonstrate the extent of compliance with section 
223(a)(12)(A) of the JJDP Act, the report must include, at a minimum, 
the following information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) Total number of public and private secure detention and 
correctional facilities, the total number reporting, and the number 
inspected on-site;
    (C) The total number of accused status offenders and nonoffenders, 
including out-of-State runaways and Federal wards, held in any secure 
detention or correctional facility for longer than twenty-four hours 
(not including weekends or holidays), excluding those held pursuant to 
the valid court order provision as set forth in paragraph (f)(3) of this 
section or pursuant to section 922(x) of title 18, United States Code 
(which prohibits the possession of a handgun by a juvenile), or a 
similar State law. A juvenile who violates this statute, or a similar 
state law, is excepted from the deinstitutionalization of status 
offenders requirement;
    (D) The total number of accused status offenders (including valid 
court order violators, out of state runaways, and Federal wards, but 
excluding Title 18 922(x) violators) and nonoffenders securely detained 
in any adult jail, lockup, or nonapproved collocated facility for any 
length of time;
    (E) The total number of adjudicated status offenders and 
nonoffenders, including out-of-state runaways and Federal wards, held 
for any length of time in a secure detention or correctional facility, 
excluding those held pursuant to the valid court order provision or 
pursuant to title 18 U.S.C. section 922(x);
    (F) The total number of status offenders held in any secure 
detention or correctional facility pursuant to the valid court order 
provision set forth in paragraph (f)(3) of this section; and
    (G) The total number of juvenile offenders held pursuant to title 18 
U.S.C. section 922(x).

[[Page 412]]

    (ii) To demonstrate the extent to which the provisions of section 
223(a)(12)(B) of the JJDP Act are being met, the report must include the 
total number of accused and adjudicated status offenders and 
nonoffenders placed in facilities that are:
    (A) Not near their home community;
    (B) Not the least restrictive appropriate alternative; and
    (C) Not community-based.
    (iii) To demonstrate the extent of compliance with section 
223(a)(13) of the JJDP Act, the report must include, at a minimum, the 
following information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) The total number of facilities used to detain or confine both 
juvenile offenders and adult criminal offenders during the past 12 
months and the number inspected on-site;
    (C) The total number of facilities used for secure detention and 
confinement of both juvenile offenders and adult criminal offenders 
which did not provide sight and sound separation;
    (D) The total number of juvenile offenders and nonoffenders not 
separated from adult criminal offenders in facilities used for the 
secure detention and confinement of both juveniles and adults;
    (E) The total number of State approved juvenile detention centers 
located within the same building or on the same grounds as an adult jail 
or lockup, including a list of such facilities;
    (F) The total number of juveniles detained in State approved 
collocated facilities that were not separated from the management, 
security or direct care staff of the adult jail or lockup;
    (G) The total number of juvenile detention centers located within 
the same building or on the same grounds as an adult jail or lockup that 
have not been approved by the State, including a list of such 
facilities; and
    (H) The total number of juveniles detained in collocated facilities 
not approved by the State that were not sight and sound separated from 
adult criminal offenders.
    (iv) To demonstrate the extent of compliance with section 223(a)(14) 
of the JJDP Act, the report must include, at a minimum, the following 
information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) The total number of adult jails in the State AND the number 
inspected on-site;
    (C) The total number of adult lockups in the State AND the number 
inspected on-site;
    (D) The total number of adult jails holding juveniles during the 
past twelve months;
    (E) The total number of adult lockups holding juveniles during the 
past twelve months;
    (F) The total number of accused juvenile criminal-type offenders 
held securely in adult jails, lockups, and unapproved collocated 
facilities in excess of six hours, including those held pursuant to the 
``removal exception'' as set forth in paragraph (f)(4) of this section;
    (G) The total number of accused juvenile criminal-type offenders 
held securely in adult jails, lockups and unapproved collocated 
facilities for less than six hours for purposes other than 
identification, investigations, processing, release to parent(s), 
transfer to court, or transfer to a juvenile facility following initial 
custody;
    (H) The total number of adjudicated juvenile criminal-type offenders 
held securely in adult jails or lockups and unapproved collocated 
facilities in excess of six hours prior to or following a court 
appearance or for any length of time not related to a court appearance;
    (I) The total number of accused and adjudicated status offenders 
(including valid court order violators) and nonoffenders held securely 
in adult jails, lockups and unapproved collocated facilities for any 
length of time;
    (J) The total number of adult jails, lockups, and unapproved 
collocated facilities in areas meeting the ``removal exception'' as 
noted in paragraph (f)(4) of this section, including a list of such 
facilities and the county or jurisdiction in which each is located;
    (K) The total number of juveniles accused of a criminal-type offense 
who were held in excess of six hours but less than 24 hours in adult 
jails, lockups and unapproved collocated facilities pursuant to the 
``removal exception''

[[Page 413]]

as set forth in paragraph (f)(4) of this section;
    (L) The total number of juveniles accused of a criminal-type offense 
who were held in excess of 24 hours, but not more than an additional 48 
hours, in adult jails, lockups and unapproved collocated facilities 
pursuant to the ``removal exception'' as noted in paragraph (f)(4) of 
this section, due to conditions of distance or lack of ground 
transportation; and
    (M) The total number of juveniles accused of a criminal-type offense 
who were held in excess of 24 hours, but not more than an additional 24 
hours after the time such conditions as adverse weather allow for 
reasonably safe travel, in adult jails, lockups and unapproved 
collocated facilities, in areas meeting the ``removal exception'' as 
noted in paragraph (f)(4) of this section.
    (6) Compliance. The State must demonstrate the extent to which the 
requirements of sections 223(a)(12)(A), (13), (14), and (23) of the Act 
are met. If the State fails to demonstrate full compliance with sections 
223(a)(12)(A) and (14), and compliance with sections 223(a)(13) and (23) 
by the end of the fiscal year for any fiscal year beginning with fiscal 
year 1994, the State's allotment under section 222 will be reduced by 
twenty five percent for each such failure, provided that the State will 
lose its eligibility for any allotment unless: the State agrees to 
expend all remaining funds (except planning and administration, State 
advisory group set-aside funds and Indian tribe pass-through funds) for 
the purpose of achieving compliance with the mandate(s) for which the 
State is in noncompliance; or the Administrator makes discretionary 
determination that the State has substantially complied with the 
mandate(s) for which there is noncompliance and that the State has made 
through appropriate executive or legislative action, an unequivocal 
commitment to achieving full compliance within a reasonable time. In 
order for a determination to be made that a State has substantially 
complied with the mandate(s), the State must demonstrate that it has: 
Diligently carried out the plan approved by OJJDP; demonstrated 
significant progress toward full compliance; submitted a plan based on 
an assessment of current barriers to DMC; and provided an assurance that 
added resources will be expended, be it formula grants or other funds, 
to achieve compliance. Where a State's allocation is reduced, the amount 
available for planning and administration and the required pass-through 
allocation, other than State advisory group set-aside, will be reduced 
because they are based on the reduced allocation.
    (i) Full compliance with section 223(a)(12)(A) is achieved when a 
State has removed 100 percent of status offenders and nonoffenders from 
secure detention and correctional facilities or can demonstrate full 
compliance with de minimis exceptions pursuant to the policy criteria 
contained in the Federal Register of January 9, 1981 (copies are 
available from the Office of General Counsel, Office of Justice 
Programs, 633 Indiana Ave. NW., Washington, DC 20531).
    (ii) Compliance with section 223(a)(13) has been achieved when a 
State can demonstrate that:
    (A) The last submitted monitoring report, covering a full 12 months 
of data, demonstrates that no juveniles were incarcerated in 
circumstances that were in violation of section 223(a)(13); or
    (B)(1) The instances of noncompliance reported in the last submitted 
monthly report do not indicate a pattern or practice but rather 
constitute isolated instances; and
    (2)(i) Where all instances of noncompliance reported were in 
violation of or departure from State law, rule, or policy that clearly 
prohibits the incarceration of all juvenile offenders in circumstances 
that would be in violation of section 223(a)(13), existing enforcement 
mechanisms are such that the instances of noncompliance are unlikely to 
recur in the future; or
    (ii) An acceptable plan has been developed to eliminate the 
noncompliant incidents.
    (iii)(A) Full compliance is achieved when a state demonstrates that 
the last submitted monitoring report, covering 12 months of actual data, 
demonstrates that no juveniles were held

[[Page 414]]

in adult jails or lockups in circumstances that were in violation of 
section 223(a)(14).
    (B) Full compliance with de minimis exceptions is achieved when a 
State demonstrates that it has met the standard set forth in either of 
paragraphs (f)(6)(iii)(B) (1) or (2) of this section:
    (1) Substantive de minimis standard. To comply with this standard 
the State must demonstrate that each of the following requirements have 
been met:
    (i) State law, court rule, or other statewide executive or judicial 
policy clearly prohibits the detention or confinement of all juveniles 
in circumstances that would be in violation of section 223(a)(14);
    (ii) All instances of noncompliance reported in the last submitted 
monitoring reported were in violation of or departures from, the State 
law, rule, or policy referred to in paragraph (f)(6)(iii)(B)(1)(i) of 
this section;
    (iii) The instances of noncompliance do not indicate a pattern or 
practice but rather constitute isolated instances;
    (iv) Existing mechanisms for the enforcement of the State law, rule 
or policy referred to in paragraph (f)(6)(iii)(B)(1)(i) of this section 
are such that the instances of noncompliance are unlikely to recur in 
the future; and
    (v) An acceptable plan has been developed to eliminate the 
noncompliant incidents and to monitor the existing mechanism referred to 
in paragraph (f)(6)(iii)(B)(1)(iv) of this section.
    (2) Numerical de minimis standard. To comply with this standard the 
State must demonstrate that each of the following requirements under 
paragraphs (f)(6)(iii)(B)(2) (i) and (ii) of this section have been met:
    (i) The incidents of noncompliance reported in the State's last 
submitted monitoring report do not exceed an annual rate of 9 per 
100,000 juvenile population of the State; and
    (ii) An acceptable plan has been developed to eliminate the 
noncompliant incidents through the enactment or enforcement of State 
law, rule, or statewide executive or judicial policy, education, the 
provision of alternatives, or other effective means.
    (iii) Exception. When the annual rate for a State exceeds 9 
incidents of noncompliance per 100,000 juvenile population, the State 
will be considered ineligible for a finding of full compliance with de 
minimis exceptions under the numerical de minimis standard unless the 
State has recently enacted changes in State law which have gone into 
effect and which the State demonstrates can reasonably be expected to 
have a substantial, significant and positive impact on the state's 
achieving full (100%) compliance or full compliance with de minimis 
exceptions by the end of the monitoring period immediately following the 
monitoring period under consideration.
    (iv) Progress. Beginning with the monitoring report due by December 
31, 1990, any State whose prior full compliance status is based on 
having met the numerical de minimis standard set forth in paragraph 
(f)(6)(iii)(B)(2)(i) of this Sec. 31.303, must annually demonstrate, in 
its request for a finding of full compliance with de minimis exceptions, 
continued and meaningful progress toward achieving full (100%) 
compliance in order to maintain eligibility for a continued finding of 
full compliance with de minimis exceptions.
    (v) Request submission. Determinations of full compliance and full 
compliance with de minimis exceptions are made annually by OJJDP 
following submission of the monitoring report due by December 31 of each 
calendar year. Any State reporting less than full (100%) compliance in 
any annual monitoring report may request a finding of full compliance 
with de minimis exceptions under paragraph (f)(6)(iii)(B) (1) or (2) of 
this section. The request may be submitted in conjunction with the 
monitoring report, as soon thereafter as all information required for a 
determination is available, or be included in the annual State plan and 
application for the State's formula grant award.
    (C) Waiver. Failure to achieve full compliance as defined in this 
section shall terminate any State's eligibility for FY 1993 and prior 
year formula grant funds unless the Administrator of OJJDP waives 
termination of the State's eligibility. ln order to be eligible for this 
waiver of termination, a

[[Page 415]]

State must request a waiver and demonstrate that it meets the standards 
set forth in paragraphs (f)(6)(iii)(C) (1)-(7) of this section:
    (1) Agrees to expend all of its formula grant award except planning 
and administration, advisory group set-aside, and Indian tribe pass-
through funds, to achieve compliance with section 223(a)(14); and
    (2) Removed all status and nonoffender juveniles from adult jails 
and lockups. Compliance with this standard requires that the last 
submitted monitoring report demonstrate that no status offender 
(including those accused of or adjudicated for violating a valid court 
order) or nonoffender juveniles were securely detained in adult jails or 
lock-ups for any length of time; or that all status offenders and 
nonoffenders securely detained in adult jails and lock-ups for any 
length of time were held in violation of an enforceable State law and 
did not constitute a pattern or practice within the State; and
    (3) Made meaningful progress in removing juvenile criminal-type 
offenders from adult jails and lockups. Compliance with this standard 
requires the State to document a significant reduction in the number of 
jurisdictions securely detaining juvenile criminal-type offenders in 
violation of section 223 (a)(14) of the JJDP Act; or a significant 
reduction in the number of facilities securely detaining such juveniles; 
or a significant reduction in the average length of time each juvenile 
criminal-type offender is securely detained in an adult jail or lock-up; 
or State legislation has recently been enacted and taken effect and 
which the State demonstrates will significantly impact the secure 
detention of juvenile criminal-type offenders in adult jails and lock-
ups; and
    (4) Diligently carried out the State's jail and lockup removal plan 
approved by OJJDP. Compliance with this standard requires that actions 
have been undertaken to achieve the State's jail and lock-up removal 
goals and objectives within approved time lines, and that the State 
Advisory Group, required by section 223 (a)(3) of the JJDP Act, has 
maintained an appropriate involvement in developing and/or implementing 
the State's plan; and
    (5) Submitted an acceptable plan, based on a assessment of current 
jail and lockup removal barriers within the State, to eliminate 
noncompliant incidents; and
    (6) Achieved compliance with section 223(a)(15) of the JJDP Act; and
    (7) Demonstrates an unequivocal commitment, through appropriate 
executive or legislative action, to achieving full compliance.
    (D) Waiver maximum. A State may receive a waiver of termination of 
eligibility from the Administrator under paragraph (f)(6)(iii)(C) of 
this section for a combined maximum of four Formula Grant Awards through 
Fiscal Year 1993. No additional waivers will be granted.
    (7) Monitoring report exemption. States which have been determined 
by the OJJDP Administrator to have achieved full compliance with 
sections 223(a)(12)(A), (a)(14), and compliance with section 223(a)(13) 
of the JJDP and wish to be exempted from the annual monitoring report 
requirements must submit a written request to the OJJDP Administrator 
which demonstrates that:
    (i) The State provides for an adequate system of monitoring jails, 
law enforcement lockup, detention facilities, to enable an annual 
determination of State compliance with sections 223(a)(12)(A), (13), and 
(14) of the JJDP Act;
    (ii) State legislation has been enacted which conforms to the 
requirements of Sections 223(a)(12)(A), (13), and (14) of the JJDP Act; 
and
    (iii) The enforcement of the legislation is statutorily or 
administratively prescribed, specifically providing that:
    (A) Authority for enforcement of the statute is assigned;
    (B) Time frames for monitoring compliance with the statute are 
specified; and
    (C) Adequate procedures are set forth for enforcement of the statute 
and the imposition of sanctions for violations.
    (g) Juvenile crime analysis. Pursuant to section 223(a)(8), the 
State must conduct an analysis of juvenile crime problems, including 
juvenile gangs that commit crimes, and juvenile justice

[[Page 416]]

and delinquency prevention needs within the State, including those 
geographical areas in which an Indian tribe performs law enforcement 
functions. The analysis and needs assessment must include educational 
needs, gender specific services, delinquency prevention and treatment 
services in rural areas, and mental health services available to 
juveniles in the juvenile justice system. The analysis should discuss 
barriers to accessing services and provide a plan to provide such 
services where needed.
    (1) Analysis. The analysis must be provided in the multiyear 
application. A suggested format for the analysis is provided in the 
Formula Grant Application Kit.
    (2) Product. The product of the analysis is a series of brief 
written problem statements set forth in the application that define and 
describe the priority problems.
    (3) Programs. Applications are to include descriptions of programs 
to be supported with JJDP Act formula grant funds. A suggested format 
for these programs is included in the application kit.
    (4) Performance indicators. A list of performance indicators must be 
developed and set forth for each program. These indicators show what 
data will be collected at the program level to measure whether 
objectives and performance goals have been achieved and should relate to 
the measures used in the problem statement and statement of program 
objectives.
    (h) Annual performance report. Pursuant to section 223(a) and 
section 223(a)(22) the State plan shall provide for submission of an 
annual performance report. The State shall report on its progress in the 
implementation of the approved programs, described in the three-year 
plan. The performance indicators will serve as the objective criteria 
for a meaningful assessment of progress toward achievement of measurable 
goals. The annual performance report shall describe progress made in 
addressing the problem of serious juvenile crime, as documented in the 
juvenile crime analysis pursuant to section 223(a)(8)(A). The annual 
performance report must be submitted to OJJDP no later than June 30 and 
address all formula grant activities carried out during the previous 
complete calendar year, federal fiscal year, or State fiscal year for 
which information is available, regardless of which year's formula grant 
funds were used to support the activities being reported on, e.g., 
during a reporting period, activities may have been funded from two or 
more formula grant awards.
    (i) Technical assistance. States shall include, within their plan, a 
description of technical assistance needs. Specific direction regarding 
the development and inclusion of all technical assistance needs and 
priorities will be provided in the ``Application Kit for Formula Grants 
under the JJDPA.''
    (j) Minority detention and confinement. Pursuant to section 
223(a)(23) of the JJDP Act, States must demonstrate specific efforts to 
reduce the proportion of juveniles detained or confined in secure 
detention facilities, secure correctional facilities, jails and lockups 
who are members of minority groups if such proportion exceeds the 
proportion such groups represent in the general population, viz., in 
most States, youth between ages ten-seventeen are subject to secure 
custody. It is essential that States approach this statutory mandate in 
a comprehensive manner. The purpose of the statute and the regulation in 
this part is to encourage States to address, programmatically, any 
features of its justice system, and related laws and policies, that may 
account for the disproportionate detention or confinement of minority 
juveniles in secure detention facilities, secure correctional 
facilities, jails, and lockups. The disproportionate minority 
confinement core requirement neither establishes nor requires numerical 
standards or quotas in order for a State to achieve or maintain 
compliance. Compliance with this provision is achieved when a State 
meets the requirements set forth in paragraphs (j)(1) through (3) of 
this section:
    (1) Identification. Provide quantifiable documentation (State, 
county and local level) in the State's FY 1994 Formula Grant Plan (and 
all subsequent Multi-Year Plans) Juvenile Crime Analysis and Needs 
Assessment to determine whether minority juveniles are

[[Page 417]]

disproportionately detained or confined in secure detention and 
correctional facilities, jails and lockups in relation to their 
proportion of the State juvenile population. Guidelines are provided in 
the OJJDP Disproportionate Minority Confinement Technical Assistance 
Manual (see Phase I Matrix). Where quantifiable documentation is not 
available to determine if disproportionate minority confinement exists 
in secure detention and correctional facilities, jails and lockups, the 
State must provide a time-limited plan of action, not to exceed six 
months, for developing and implementing a system for the ongoing 
collection, analysis and dissemination of information regarding 
minorities for those facilities where documentation does not exist.
    (2) Assessment. Each State's FY 1994 Formula Grant Plan must provide 
a completed assessment of disproportionate minority confinement. 
Assessments must, at minimum, identify and explain differences in 
arrest, diversion and adjudication rates, court dispositions other than 
incarceration, the rates and periods of prehearing detention in and 
dispositional commitments to secure facilities of minority youth in the 
juvenile justice system, and transfers to adult court (see Phase II 
Matrix). If a completed assessment is not available, the State must 
submit a time-limited plan (not to exceed twelve months from submission 
of the Formula Grant Application) for completing the assessment.
    (3) Intervention. Each State's FY 1995 Formula Grant Plan must, 
where disproportionate confinement has been demonstrated, provide a 
time-limited plan of action for reducing the disproportionate 
confinement of minority juveniles in secure facilities. The intervention 
plan shall be based on the results of the assessment, and must include, 
but not be limited to the following:
    (i) Diversion. Increasing the availability and improving the quality 
of diversion programs for minorities who come in contact with the 
juvenile justice system, such as police diversion programs;
    (ii) Prevention. Providing developmental, operational, and 
assessment assistance (financial and/or technical) for prevention 
programs in communities with a high percentage of minority residents 
with emphasis upon support for community-based organizations (including 
non-traditional organizations) that serve minority youth;
    (iii) Reintegration. Providing developmental, operational, and 
assessment assistance (financial and/or technical) for programs designed 
to reduce recidivism by facilitating the reintegration of minority youth 
in the community following release from dispositional commitments to 
reduce recidivism;
    (iv) Policies and procedures. Providing financial and/or technical 
assistance that addresses necessary changes in statewide and local, 
executive, judicial, and legal representation policies and procedures; 
and
    (v) Staffing and training. Providing financial and/or technical 
assistance that addresses staffing and training needs that will 
positively impact the disproportionate confinement of minority youth in 
secure facilities.
    (4) The time-limited plans of action set forth in paragraphs (j) 
(1), (2) and (3) of this section must include a clear indication of 
current and future barriers; which agencies, organizations, or 
individual(s) will be responsible for taking what specific actions; 
when; and what the anticipated outcomes are. The interim and final 
outcomes from implementation of the time-limited plan of action must be 
reported in each State's Multi-Year Plans and Annual Plan Updates. Final 
outcomes for individual project awards are to be included with each 
State's annual performance report (See paragraph (h) of this section).
    (5) Technical assistance is available through the OJJDP Technical 
Assistance Contract to help guide States with the data collection and 
analysis, and with programmatic elements of this requirement. 
Information from the OJJDP Special Emphasis Initiative on 
Disproportionate Minority Confinement pilot sites will be disseminated 
as it becomes available.
    (6) For purposes of this statutory mandate, minority populations are 
defined as: African-Americans, American Indians, Asians, Pacific 
Islanders, and Hispanics.

[[Page 418]]

    (k) Pursuant to section 223(a)(24) of the JJDP Act, states shall 
agree to other terms and conditions as the Administrator may reasonably 
prescribe to assure the effectiveness of programs assisted under the 
Formula Grant.

[60 FR 28440, May 31, 1995, as amended at 61 FR 65138, Dec. 10, 1996]



Sec. 31.304  Definitions.

    (a) Private agency. A private non-profit agency, organization or 
institution is:
    (1) Any corporation, foundation, trust, association, cooperative, or 
accredited institution of higher education not under public supervision 
or control; and
    (2) Any other agency, organization or institution which operates 
primarily for scientific, education, service, charitable, or similar 
public purposes, but which is not under public supervision or control, 
and no part of the net earnings of which inures or may lawfully inure to 
the benefit of any private shareholder or individual, and which has been 
held by IRS to be tax-exempt under the provisions of section 501(c)(3) 
of the 1954 Internal Revenue Code.
    (b) Secure. As used to define a detention or correctional facility 
this term includes residential facilities which include construction 
features designed to physically restrict the movements and activities of 
persons in custody such as locked rooms and buildings, fences, or other 
physical structures. It does not include facilities where physical 
restriction of movement or activity is provided solely through facility 
staff.
    (c) Facility. A place, an institution, a building or part thereof, 
set of buildings or an area whether or not enclosing a building or set 
of buildings which is used for the lawful custody and treatment of 
juveniles and may be owned and/or operated by public and private 
agencies.
    (d) Juvenile who is accused of having committed an offense. A 
juvenile with respect to whom a petition has been filed In the juvenile 
court or other action has occurred alleging that such juvenile is a 
juvenile offender, i.e., a criminal-type offender or a status offender, 
and no final adjudication has been made by the juvenile court.
    (e) Juvenile who has been adjudicated as having committed an 
offense. A juvenile with respect to whom the juvenile court has 
determined that such juvenile is a juvenile offender, i.e., a criminal-
type offender or a status offender.
    (f) Juvenile offender. An individual subject to the exercise of 
juvenile court jurisdiction for purposes of adjudication and treatment 
based on age and offense limitations by defined as State law, i.e., a 
criminal-type offender or a status offender.
    (g) Criminal-type offender. A juvenile offender who has been charged 
with or adjudicated for conduct which would, under the law of the 
jurisdiction in which the offense was committed, be a crime if committed 
by an adult.
    (h) Status offender. A juvenile offender who has been charged with 
or adjudicated for conduct which would not, under the law of the 
jurisdiction in which the offense was committed, be a crime if committed 
by an adult.
    (i) Non-offender. A juvenile who is subject to the jurisdiction of 
the juvenile court, usually under abuse, dependency, or neglect statutes 
for reasons other than legally prohibited conduct of the juvenile.
    (j) Lawful custody. The exercise of care, supervision and control 
over a juvenile offender or non-offender pursuant to the provisions of 
the law or of a judicial order or decree.
    (k) Other individual accused of having committed a criminal offense. 
An individual, adult or juvenile, who has been charged with committing a 
criminal offense in a court exercising criminal jurisdiction.
    (l) Other individual convicted of a criminal offense. An individual, 
adult or juvenile, who has been convicted of a criminal offense in court 
exercising criminal jurisdiction.
    (m) Adult jail. A locked facility, administered by State, county or 
local law enforcement and correctional agencies, the purpose of which is 
to detain adults charged with violating criminal law, pending trial. 
Also considered as adult jails are those facilities used to hold 
convicted adult criminal offenders sentenced for less than one year.

[[Page 419]]

    (n) Adult lockup. Similar to an adult jail except that an adult 
lockup is generally a municipal or police facility of a temporary nature 
which does not hold persons after they have been formally charged.
    (o) Valid court order. The term means a court order given by a 
juvenile court judge to a juvenile who has been brought before the court 
and made subject to a court order. The use of the word ``valid'' permits 
the incarceration of juveniles for violation of a valid court order only 
if they received their full due process rights as guaranteed by the 
Constitution of the United States.
    (p) Local private agency. For the purposes of the pass-through 
requirement of section 223(a)(5), a local private agency is defined as a 
private non-profit agency or organization that provides program services 
within an identifiable unit or a combination of units of general local 
government.



              Subpart E--General Conditions and Assurances



Sec. 31.400  Compliance with statute.

    The applicant State must assure and certify that the State and its 
subgrantees and contractors will comply with applicable provisions of 
the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 
as amended, and with the provisions of the Juvenile Justice and 
Delinquency Prevention Act of 1974, Pub. L. 93-415, as amended, and the 
provisions of the current edition of OJP Financial and Administrative 
Guide for Grants, M7100.1.



Sec. 31.401  Compliance with other Federal laws, orders, circulars.

    The applicant State must further assure and certify that the State 
and its subgrantees and contractors will adhere to other applicable 
Federal laws, orders and OMB circulars. These general Federal laws and 
regulations are described in greater detail in the Financial and 
Administrative Guide for Grants, M7100.1, and the Formula Grant 
Application Kit.



Sec. 31.402  Application on file.

    Any Federal funds awarded pursuant to an application must be 
distributed and expended pursuant to and in accordance with the programs 
contained in the applicant State's current approved application. Any 
departures therefrom, other than to the extent permitted by current 
program and fiscal regulations and guidelines, must be submitted for 
advance approval by the Administrator of OJJDP.



Sec. 31.403  Civil rights requirements.

    The State assures that it will comply, and that subgrantees and 
contractors will comply, with all applicable Federal non-discrimination 
requirements, including:
    (a) Section 809(c) of the Omnibus Crime Control and Safe Streets Act 
as 1968, as amended, and made applicable by section 299(A) of the 
Juvenile Justice and Delinquency Prevention Act of 1974, as amended;
    (b) Title VI of the Civil Rights Act of 1964, as amended;
    (c) Section 504 of the Rehabilitation Act of 1973, as amended;
    (d) Title IX of the Education Amendments of 1972;
    (e) The Age Discrimination Act of 1975;
    (f) The Department of Justice NonDiscrimination regulations, 28 CFR 
part 42, subparts C, D, E, and G;
    (g) The Department of Justice regulations on disability 
discrimination, 28 CFR parts 35 and 39; and
    (h) Subtitle A, title II of the Americans with Disabilities Act 
(ADA) of 1990.



PART 32--PUBLIC SAFETY OFFICERS' DEATH AND DISABILITY BENEFITS--Table of Contents




                         Subpart A--Introduction

Sec.
32.1  Purpose and OMB control number.
32.2  Definitions.

                       Subpart B--Officers Covered

32.3  Coverage.
32.4  Reasonable doubt of coverage.
32.5  Findings of State, local, and Federal agencies.
32.6  Conditions on payment.
32.7  Intentional misconduct of the officer.
32.8  Intention to bring about death or permanent and total disability.
32.9  Voluntary intoxication.

[[Page 420]]

                        Subpart C--Beneficiaries

32.10  Order of priority.
32.11  Contributing factor to death.
32.12  Determination of relationship of spouse.
32.13  Determination of relationship of child.
32.14  Determination of relationship of parent.
32.15  Determination of dependency.

              Subpart D--Interim and Reduced Death Payments

32.16  Interim payment in general.
32.17  Repayment and waiver of repayment.
32.18  Reduction of payment.

               Subpart E--Filing and Processing of Claims

32.19  Persons executing claims.
32.20  Claims.
32.21  Evidence.
32.22  Representation.

              Subpart F--Determination, Hearing, and Review

32.23  Finding of eligibility or ineligibility.
32.24  Request for a hearing.

Subpart G--National Programs for Families of Public Safety Officers Who 
                      Have Died in the Line of Duty

32.25  National programs.

Appendix to Part 32--PSOB Hearing and Appeal Procedures

    Authority: Part L of title I of the Omnibus Crime Control and Safe 
Streets Act of 1968, as amended (42 U.S.C. 3711 et seq.).

    Source: 57 FR 24913, June 11, 1992, unless otherwise noted.



                         Subpart A--Introduction



Sec. 32.1  Purpose and OMB control number.

    (a) The purpose of this part is to implement the Public Safety 
Officers' Benefits Act of 1976, as amended, which authorizes the Bureau 
of Justice Assistance, Office of Justice Programs, to pay a benefit of 
$100,000, adjusted in accordance with Sec. 32.3(b), to specified 
survivors or public safety officers found to have died as the direct and 
proximate result of a personal injury sustained in the line of duty, and 
to claimant public safety officers found to have been permanently and 
totally disabled as the direct result of a catastrophic injury sustained 
in the line of duty. The Act also authorizes funds to establish national 
programs to assist the families of public safety officers who have died 
in the line of duty. (The Act is part L of title I of the Omnibus Crime 
Control and Safe Streets Act of 1968, as amended, 42 U.S.C. 3711 et 
seq.)
    (b) The information collection requirements in this part have been 
approved by the Office of Management and Budget and have been assigned 
OMB control number 1121-0166.



Sec. 32.2  Definitions.

    (a) The Act means the Public Safety Officers' Benefits Act of 1976, 
42 U.S.C. 3796, et seq., Public Law 94-430, 90 Stat. 1346 (September 29, 
1976), as amended.
    (b)(1) Bureau or BJA means the Bureau of Justice Assistance of the 
Office of Justice Programs;
    (2) PSOB means the Public Safety Officers' Benefits Program of the 
Bureau of Justice Assistance.
    (c) Line of duty means:
    (1) Any action which an officer whose primary function is crime 
control or reduction, enforcement of the criminal law, or suppression of 
fires is obligated or authorized by rule, regulations, condition of 
employment or service, or law to perform, including those social, 
ceremonial, or athletic functions to which the officer is assigned, or 
for which the officer is compensated, by the public agency he serves. 
For other officers, ``line of duty'' means any action the officer is so 
obligated or authorized to perform in the course of controlling or 
reducing crime, enforcing the criminal law, or suppressing fires; and
    (2) Any action which an officially recognized or designated public 
employee member of a rescue squad or ambulance crew is obligated or 
authorized by rule, regulation, condition of employment or service, or 
law to perform.
    (d) Direct and proximate, direct, or proximate means that the 
antecedent event is a substantial factor in the result.
    (e) Personal injury or injury means any traumatic injury, as well as 
diseases which are caused by or result from such an injury, but not 
occupational diseases.

[[Page 421]]

    (f) Catastrophic injury means consequences of an injury that 
permanently prevent an individual from performing any gainful work.
    (g) Traumatic injury means a wound or a condition of the body caused 
by external force, including injuries inflicted by bullets, explosives, 
sharp instruments, blunt objects or other physical blows, chemicals, 
electricity, climatic conditions, infectious diseases, radiation, and 
bacteria, but excluding stress and strain.
    (h) Permanent and total disability means medically determinable 
consequences of a catastrophic, line-of-duty injury that permanently 
prevent a former pubic safety officer from performing any gainful work.
    (i) Occupational disease means a disease which routinely constitutes 
a special hazard in, or is commonly regarded as a concomitant of the 
officer's occupation.
    (j) Public safety officer means any individual serving a public 
agency in an official capacity, with or without compensation, as a law 
enforcement officer, firefighter, rescue squad member or ambulance crew 
member.
    (k) Public agency means the United States, any State of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands of the United States, Guam, American Samoa, the Trust 
Territories of the Pacific Islands, the Commonwealth of the Northern 
Mariana Islands, and any territory or possession of the United States, 
or any unit of local government, department, agency, or instrumentality 
of any of the foregoing.
    (l) Public employee means an employee of a public agency.
    (m) Law enforcement officer means any individual involved in crime 
and juvenile delinquency control or reduction, or enforcement of the 
criminal law, including but not limited to police, corrections, 
probation, parole, and judicial officers.
    (n) Firefighter includes any individual serving as an officially-
recognized or designated member of a legally-organized volunteer fire 
department.
    (o) Rescue squad or ambulance crew member means an officially 
recognized or designated employee or member of a rescue squad or 
ambulance crew.
    (p) Prerequisite disability certification means:
    (1)(i) The employing agency's official, certified award to the 
claimant public safety officer of its maximum disability finding and 
compensation, including the officer's permanent and complete separation 
from the employing public safety agency as the direct result of an 
injury sustained in the line of duty; or
    (ii) If the employing agency does not itself make such disability 
awards, then an official, certified award to the claimant public safety 
officer by the cognizant judicial, political or administrative agency or 
body of its maximum disability finding and compensation, including the 
officer's permanent and complete separation from the employing public 
safety agency as the direct result of an injury sustained in the line of 
duty.
    (2) Nothing in this paragraph (p) shall be construed to affect 
State, municipal, or local laws, regulations, policies, or agencies, 
which have been or will be established for the purpose of granting 
public safety officer disability pensions, including heart and lung laws 
and similar benefits, nor is any standard for the granting of such 
benefits implied in any way by this part.
    (q) Gainful work means work activity that is both substantial and 
gainful.
    (1) Substantial work activity means work activity that involves 
doing significant physical or mental activities. Work may be substantial 
even if it is done on a part-time basis or if the public safety officer 
does less, gets paid less, or has less responsibility than when he or 
she was a member of the former employing public safety agency.
    (2) Gainful work activity means work activity that is done for pay 
or profit. Work activity is gainful if it is the kind of work usually 
done for pay or profit, whether or not a profit is realized or pay is 
received.
    (r) Residual functional capacity means that which a former public 
safety officer can still do despite limitations imposed by a disability. 
Residual functional capacity is a medical assessment, a determination to 
be made by

[[Page 422]]

the Office's medical experts. Such medical determination will be based 
on examination of prerequisite disability certifications as specified in 
28 CFR 32.2(p), and by examination of any additional case specific 
medical and other relevant documentation necessary to a medical 
assessment and determination of residual functional capacity.
    (s) Age means a former public safety officer's chronological age, 
and the extent to which that individual's age affects his or her ability 
to adapt to a new work situation or to do work in competition with 
others. PSOB will evaluate age in the context of residual functional 
capacity within the following general parameters:
    (1) Youthful means that a former public safety officer under age 50 
will generally be considered able to adapt to a new work activity and 
environment.
    (2) Early middle age means that a former public safety officer, 
between age 50 and age 59, will generally be considered to experience 
significant difficulty in adapting to a new work activity and 
environment.
    (3) Middle and advanced age means that a former public safety 
officer age 60 or over will generally be considered to experience 
substantial difficulty in adapting to a new work activity or 
environment.
    (t) Education means primarily the level and content of a former 
public safety officer's formal schooling, including vocational training. 
Education also includes completion of in-service training seminars and 
educational programs while a member of the former employing public 
safety agency or while formerly employed.
    (u) Work experience means the skills and abilities acquired by the 
former public safety officer before, during and following service in the 
former public safety agency, suitable to use in adapting to a new work 
activity and environment.
    (v) Child means any natural, illegitimate, adopted, or posthumous 
child or stepchild of a deceased public safety officer who, at the time 
of the public safety officer's death, is:
    (1) Eighteen years of age or under;
    (2) Over eighteen years of age and a student, as defined in section 
8101 of title 5, United States Code; or
    (3) Over eighteen years of age and incapable of self-support because 
of physical or mental disability.
    (w) Stepchild means a child of the officer's spouse who was living 
with, dependent for support on, or otherwise in a parent-child 
relationship, as set forth in Sec. 32.13(b), with the officer at the 
time of the officer's death. The relationship of stepchild is not 
terminated by the divorce, remarriage, or death of the stepchild's 
natural or adoptive parent.
    (x) Student means:
    (1) An individual under 23 years of age who has not completed four 
years of education beyond the high school level and who is regularly 
pursuing a full-time course of study or training at an institution which 
is:
    (i) A school or college or university operated or directly supported 
by the United States, or by a State or local government or political 
subdivision thereof;
    (ii) A school or college or university which has been accredited by 
a State or by a State recognized or nationally recognized accrediting 
agency or body;
    (iii) A school or college or university not so accredited but whose 
credits are accepted, on transfer, by at least three institutions which 
are so accredited for credit on the same basis as if transferred from an 
institution so accredited; or
    (iv) An additional type of educational or training institution as 
defined by the Secretary of Labor.
    (2) An individual is deemed to be a student during an interim 
between school years if the interim is not more than 4 months and if the 
student shows to the satisfaction of the Bureau, that the student 
intends to pursue a full-time course of study or training during the 
semester or other enrollment period immediately after the interim or 
during periods of reasonable duration during which, in the judgment of 
the Bureau, the student is prevented by factors beyond the student's 
control from pursuing the student's education. A student whose 23rd 
birthday occurs during a semester or other enrollment period is deemed a 
student until the end of the semester or other enrollment period.
    (y) Spouse means the husband or wife of the deceased officer at the 
time of

[[Page 423]]

the officer's death, and includes a spouse living apart from the officer 
at the time of the officer's death for any reason.
    (z) Dependent means any individual who was substantially reliant for 
support upon the income of the deceased public safety officer.
    (aa) Intoxication means a disturbance of mental or physical 
faculties:
    (1) Resulting from the introduction of alcohol into the body as 
evidenced by--
    (i) A blood alcohol level of .20 per centum or greater; or
    (ii) A blood alcohol level of at least .10 per centum unless the 
Bureau receives convincing evidence that the public safety officer was 
not acting in an intoxicated manner immediately prior to the officer's 
death or catastrophic personal injury which resulted in permanent and 
total disability; or
    (2) Resulting from drugs or other substances in the body.
    (bb) Rescue means the provision of first response emergency medical 
treatment, transportation of persons in medical distress and under 
emergency conditions to medical care facilities, or search and rescue 
assistance in locating and extracting from danger persons lost, missing, 
or in imminent danger of bodily harm.
    (cc) Support means food, shelter, clothing, ordinary medical 
expenses, and other ordinary and customary items for maintenance of the 
person supported.

[57 FR 24913, June 11, 1992, as amended at 61 FR 33657, June 28, 1996]



                       Subpart B--Officers Covered



Sec. 32.3  Coverage.

    (a) When the Bureau determines under this part, that a public safety 
officer, as defined in Sec. 32.2(h) has died or become permanently and 
totally disabled as the direct and proximate result of an injury 
sustained in the line of duty, the Bureau shall pay a benefit of 
$100,000, adjusted in accordance with Sec. 32.3 (b) or (c), subject to 
the conditions set forth in Sec. 32.6. Payment of death benefits shall 
be made in the order specified in Sec. 32.10.
    (b) For the death benefit program, on October 1 of each fiscal year 
after October 15, 1988, the Bureau shall adjust the level of the death 
benefit payable immediately before such October 1 under paragraph (a) of 
this section, to reflect the annual percentage change in the Consumer 
Price Index for All Urban Consumers, published by the Bureau of Labor 
Statistics, occurring in the 1-year period ending on June 1 immediately 
preceding such October 1.
    (c) For the disability benefit program, the annual cost of living 
adjustment shall be made in accordance with the effective date of the 
enactment of this program, viz. November 29, 1990.
    (d) The amount payable under paragraph (a) of this section with 
respect to the death or permanent and total disability of a public 
safety officer shall be the amount payable under paragraphs (b) or (c) 
of this section as of the date of death or permanent and total 
disability of such officer, as the case may be.



Sec. 32.4  Reasonable doubt of coverage.

    The Bureau shall resolve any reasonable doubt arising from the 
circumstances of the officer's death or permanent and total disability 
in favor of payment of the death or disability benefit.



Sec. 32.5  Findings of State, local, and Federal agencies.

    The Bureau will give substantial weight to the evidence and findings 
of fact presented by State, local, and Federal administrative and 
investigative agencies. The Bureau will request additional assistance or 
conduct its own investigation when it believes that the existing 
evidence does not provide the Bureau with a rational basis for a 
decision on a material element of eligibility.



Sec. 32.6  Conditions on payment.

    (a) No benefit shall be paid--
    (1) If the death or permanent and total disability was caused by the 
intentional misconduct of the public safety officer or by such officer's 
intention to bring about the officer's death or injury;
    (2) If the public safety officer was voluntarily intoxicated at the 
time of the officer's death or catastrophic personal injury;

[[Page 424]]

    (3) If the public safety officer was performing the officer's duties 
in a grossly negligent manner at the time of the officer's death or 
catastrophic personal injury;
    (4) To any individual who would otherwise be entitled to a benefit 
under this part if such individual's actions were a substantial 
contributing factor to the death of the public safety officer; or
    (5) To any individual employed in a capacity other than a civilian 
capacity.
    (b) The Act applies to State and local public safety officers killed 
in the line of duty on or after September 29, 1976; federal public 
safety officers killed on or after October 12, 1984; rescue squad or 
public emergency employees killed in the line of duty on or after 
October 15, 1986; and to each of these classes of officers permanently 
and totally disabled as a result of a catastrophic personal injury 
received in the line of duty on or after November 29, 1990.



Sec. 32.7  Intentional misconduct of the officer.

    The Bureau will consider at least the following factors in 
determining whether death or permanent and total disability was caused 
by the intentional misconduct of the officer:
    (a) Whether the conduct was in violation of rules and regulations of 
the employer, or ordinances and laws, and--
    (1) Whether the officer knew the conduct was prohibited and 
understood its import;
    (2) Whether there was a reasonable excuse for the violation; or
    (3) Whether the rule violated is habitually observed and enforced;
    (b) Whether the officer had previously engaged in similar 
misconduct;
    (c) Whether the officer's intentional misconduct was a substantial 
factor in the officer's death or permanent and total disability; and
    (d) Whether there was an intervening force which would have 
independently caused the officer's death or permanent and total 
disability and which would not otherwise prohibit payment of a benefit 
pursuant to this part.



Sec. 32.8  Intention to bring about death or permanent and total disability.

    The Bureau will consider at least the following factors in 
determining whether the officer intended to bring about the officer's 
own death or injury:
    (a) Whether the death or permanent and total disability was caused 
by insanity, through an uncontrollable impulse or without conscious 
volition to produce death or injury;
    (b) Whether the officer had a prior history of attempted suicide or 
attempts to cause physical incapacitation;
    (c) Whether the officer's intent to bring about the officer's death 
or injury was a substantial factor in the officer's death or permanent 
and total disability; and
    (d) The existence of an intervening force or action which would have 
independently caused the officer's death or permanent and total 
disability and which would not otherwise prohibit payment of a benefit 
pursuant to this part.



Sec. 32.9  Voluntary intoxication.

    The Bureau will apply the following evidentiary factors in cases in 
which voluntary intoxication is at issue in an officer's death or 
permanent and total disability.
    (a) The primary factor in determining intoxication at the time the 
injury occurred, from which death or permanent and total disability 
resulted, is the blood alcohol level, including a post-mortem blood 
alcohol level in the case of a death.
    (1) Benefits will be denied if a deceased or permanently and totally 
disabled public safety officer had a blood alcohol level of .20 per 
centum or greater; or
    (2) Benefits will be denied if a deceased or permanently and totally 
disabled public safety officer had a blood alcohol level of at least .10 
per centum but less than .20 per centum unless the Bureau receives 
convincing evidence that the public safety officer was not acting in an 
intoxicated manner immediately prior to death or the receipt of a 
catastrophic personal injury.
    (b) Convincing evidence includes, but is not limited to: Affidavits 
or investigative reports demonstrating that

[[Page 425]]

the deceased or permanently and totally disabled public safety officer's 
speech, movement, language, emotion, and judgment were normal (for the 
officer) immediately prior to the injury which caused the death or the 
permanent and total disability.
    (c) In determining whether an officer's intoxication was voluntary, 
the Bureau will consider:
    (1) Whether, and to what extent, the officer had a prior history of 
voluntary intoxication while in the line of duty;
    (2) Whether and to what degree the officer had previously used the 
intoxicant in question; and
    (3) Whether the intoxicant was prescribed medically and was taken 
within the prescribed dosage.



                        Subpart C--Beneficiaries



Sec. 32.10  Order of priority.

    (a) When the Bureau had determined that a death benefit may be paid 
according to the provisions of subpart B of this part and Sec. 32.11 of 
subpart C of this part, a benefit of $100,000, adjusted in accordance 
with Sec. 32.3(b), shall be paid in the following order of precedence:
    (1) If there is no surviving child of such officer, to the surviving 
spouse of such officer;
    (2) If there are a surviving child or children and a surviving 
spouse, one-half to the surviving child or children of such officer in 
equal shares, and one-half to the surviving spouse;
    (3) If there is no surviving spouse, to the surviving child or 
children of such officer in equal shares; or
    (4) If none of the above in paragraphs (a)(1) through (3) of this 
section to the surviving parent, or to the surviving parents in equal 
shares.
    (b) If no one qualifies as provided in paragraph (a) of this 
section, no benefit shall be paid.



Sec. 32.11  Contributing factor to death.

    (a) No death benefit shall be paid to any person who would otherwise 
be entitled to a death benefit under this part if such person's 
intentional actions were a substantial contributing factor to the death 
of the public safety officer.
    (b) When a potential beneficiary is denied death benefits under 
paragraph (a) of this section, the benefits shall be paid to the 
remaining eligible survivors, if any, of the officer as if the potential 
beneficiary denied death benefits did not survive the officer.



Sec. 32.12  Determination of relationship of spouse.

    (a) Marriage should be established by one (or more) of the following 
types of evidence in the following order of preference:
    (1) Copy of the public record of marriage, certified or attested, or 
by an abstract of the public record, containing sufficient data to 
identify the parties, the date and place of the marriage, and the number 
of prior marriages by either party if shown on the official record, 
issued by the officer having custody of the record or other public 
official authorized to certify the record, or a certified copy of the 
religious record of marriage;
    (2) Official report from a public agency as to a marriage which 
occurred while the officer was employed with such agency;
    (3) The affidavit of the clergyman or magistrate who officiated;
    (4) The original certificate of marriage accompanied by proof of its 
genuineness and the authority of the person to perform the marriage;
    (5) The affidavits or sworn statements of two or more eyewitnesses 
to the ceremony;
    (6) In jurisdictions where ``common law'' marriages are recognized, 
the affidavits or certified statements of the spouse setting forth all 
of the facts and circumstances concerning the alleged marriage, such as 
the agreement between the parties at the beginning of their 
cohabitation, the period of cohabitation, places and dates of 
residences, and whether children were born as the result of the 
relationship. This evidence should be supplemented by affidavits or 
certified statements from two or more persons who know as the result of 
personal observation the reputed relationship which existed between the 
parties to the alleged marriage including the period of cohabitation, 
places of residences, whether the parties held themselves out as husband

[[Page 426]]

and wife and whether they were generally accepted as such in the 
communities in which they lived; or
    (7) Any other evidence which would reasonably support a belief by 
the Bureau that a valid marriage actually existed.
    (b) BJA will not recognize a claimant as a ``common law'' spouse 
under Sec. 32.12(a)(6) unless the State of domicile recognizes him or 
her as the spouse of the officer.
    (c) If applicable, certified copies of divorce decrees of previous 
marriages or death certificates of the former spouses of either party 
must be submitted.



Sec. 32.13  Determination of relationship of child.

    (a) In general. A claimant is the child of a public safety officer 
if the individual's birth certificate shows the officer as the 
individual's parent.
    (b) Alternative. If the birth certificate does not show the public 
safety officer as the claimant's parent, the sufficiency of the evidence 
will be determined in accordance with the facts of a particular case. 
Proof of the relationship may consist of--
    (1) An acknowledgement in writing signed by the public safety 
officer; or
    (2) Evidence that the officer has been identified as the child's 
parent by a judicial decree ordering the officer to contribute to the 
child's support or for other purposes; or
    (3) Any other evidence which reasonably supports a finding of a 
parent-child relationship, such as--
    (i) A certified copy of the public record of birth or a religious 
record showing that the officer was the informant and was named as the 
parent of the child; or
    (ii) Affidavits or sworn statements of persons who know that the 
officer accepted the child as his or her own; or
    (iii) Information obtained from a public agency or public records, 
such as school or welfare agencies, which shows that with the officer's 
knowledge the officer was named as the parent of the child.
    (c) Adopted child. Except as may be provided in paragraph (b) of 
this section, evidence of relationship must be shown by a certified copy 
of the decree of adoption and such evidence as may be necessary. In 
jurisdictions where petition must be made to the court for release of 
adoption documents or information, or where the release of such 
documents or information is prohibited, a revised birth certificate will 
be sufficient to establish the fact of adoption.
    (d) Stepchild. The relationship of a stepchild to the deceased 
officer shall be demonstrated by--
    (1)(i) Evidence of birth to the spouse of the officer as required by 
paragraphs (a) and (b) of this section; or
    (ii) If adopted by the spouse, evidence of adoption as required by 
paragraph (c) of this section; or
    (iii) Other evidence, such as that specified in Sec. 32.13(b), which 
reasonably supports the existence of a parent-child relationship between 
the child and the spouse;
    (2) Evidence that the stepchild was either--
    (i) Living with; or
    (ii) Dependent for support, as set forth in Sec. 32.15; or
    (iii) In a parent-child relationship, as set forth in Sec. 32.13(b), 
with the officer at the time of the officer's death; and
    (3) Evidence of the marriage of the officer and the spouse, as 
required by Sec. 32.12.



Sec. 32.14  Determination of relationship of parent.

    (a) In general. A claimant is the parent of a public safety officer 
if the officer's birth certificate shows the claimant as the officer's 
parent.
    (b) Alternative. If the birth certificate does not show the claimant 
as the officer's parent, proof of the relationship may be shown by--
    (1) An acknowledgement in writing signed by the claimant before the 
officer's death; or
    (2) Evidence that the claimant has been identified as the officer's 
parent by judicial decree ordering the claimant to contribute to the 
officer's support or for other purposes; or
    (3) Any other evidence which reasonably supports a finding of a 
parent-child relationship, such as:
    (i) A certified copy of the public record of birth or a religious 
record

[[Page 427]]

showing that the claimant was the informant and was named as the parent 
of the officer; or
    (ii) Affidavits or sworn statements of persons who know the claimant 
had accepted the officer as the claimant's child; or
    (iii) Information obtained from a public agency or public records, 
such as school or welfare agencies, which shows that with the officer's 
knowledge the claimant had been named as the parent of the child.
    (c) Adoptive parent. Except as provided in paragraph (b) of this 
section, evidence of relationship must be shown by a certified copy of 
the decree of adoption and such other evidence as may be necessary. In 
jurisdictions where petition must be made to the court for release of 
adoption documents or information, or where release of such documents or 
information is prohibited, a revised birth certificate showing the 
claimant as the officer's parent will suffice.
    (d) Step-parent. The relationship of a step-parent to the deceased 
officer shall be demonstrated by--
    (1)(i) Evidence of the officer's birth to the spouse of the step-
parent as required by Sec. 32.13 (a) and (b); or
    (ii) If adopted by the spouse or the step-parent, proof of adoption 
as required by Sec. 32.13(c); or
    (iii) Other evidence, such as that specified in paragraph (b) of 
this section, which reasonably supports a parent-child relationship 
between the spouse and the officer; and
    (2) Evidence of the marriage of the spouse and the step-parent, as 
required by Sec. 32.12.



Sec. 32.15  Determination of dependency.

    (a) To be eligible for a death benefit under the Act, a stepchild 
not living with the deceased officer at the time of the officer's death 
shall demonstrate that he or she was substantially reliant for support 
upon the income of the officer.
    (b) The claimant stepchild shall demonstrate that he or she was 
dependent upon the decedent at either the time of the officer's death or 
of the personal injury that was the substantial factor in the officer's 
death.
    (c) The claimant stepchild shall demonstrate dependency by 
submitting a signed statement of dependency within a year of the 
officer's death. This statement shall include the following 
information--
    (1) A list of all sources of income or support for the twelve months 
preceding the officer's injury or death;
    (2) The amount of income or value of support derived from each 
source listed; and
    (3) The nature of support provided by the each source.
    (d) Generally, the Bureau will consider a stepchild ``dependent'' if 
he or she was reliant on the income of the deceased officer for over 
one-third of his or her support.



              Subpart D--Interim and Reduced Death Payments



Sec. 32.16  Interim payment in general.

    (a) Whenever the Bureau determines upon a showing of need and prior 
to final action that the death of a public safety officer is one with 
respect to which a benefit will probably be paid, the Bureau may make an 
interim benefit payment not exceeding $3,000 to the individual entitled 
to receive a benefit under subpart C of this part.
    (b) The amount of an interim payment under this subpart shall be 
deducted from the amount of any final benefit paid to such individual.



Sec. 32.17  Repayment and waiver of repayment.

    Where there is no final benefit paid, the recipient of any interim 
benefit paid under Sec. 32.16 shall be liable for repayment of such 
amount. The Bureau may waive all or part of such repayment considering 
for this purpose the hardship which would result from such repayment.



Sec. 32.18  Reduction of payment.

    (a) The benefit payable under this part shall be in addition to any 
other benefit that may be due from any other source, except--
    (1) Payments authorized by section 12(k) of the Act of September 1, 
1916, as amended (D.C. Code, Sec. 4-622);

[[Page 428]]

    (2) Benefits authorized by section 8191 of title 5, United States 
Code, providing compensation for law enforcement officers not employed 
by the United States killed in connection with the commission of a crime 
against the United States. Such beneficiaries shall only receive 
benefits under such section 8191 that are in excess of the benefits 
received under this part; and
    (3) The amount of the interim benefit payment made to the claimant 
pursuant to Sec. 32.16.
    (b) No benefit paid under this part shall be subject to execution or 
attachment.
    (c) No benefit is payable under this part:
    (1) With respect to the death of a public safety officer if a 
benefit is paid under this part with respect to the disability of such 
public safety officer; or
    (2) With respect to the disability of a public safety officer if a 
benefit is payable under this part with respect to the death of such 
public safety officer.



               Subpart E--Filing and Processing of Claims



Sec. 32.19  Persons executing claims.

    (a) The Bureau shall determine who is the proper party to execute a 
claim in accordance with paragraphs (a) (1) through (3) of this 
section--
    (1) The claim shall be executed by the claimant or the claimant's 
legally designated representative if the claimant is mentally competent 
and physically able to execute the claim.
    (2) If the claimant is mentally incompetent or physically unable to 
execute the claim and--
    (i) Has a legally appointed guardian, committee, or other 
representative, the claim may be executed by such guardian, committee, 
or other representative; or
    (ii) Is in the care of an institution, the claim may be executed by 
the manager or principal officer of such institution.
    (3) For good cause shown, such as the age or prolonged absence of 
the claimant, the Bureau may accept a claim executed by a person other 
than one described in paragraphs (a)(1) and (a)(2) of this section.
    (b) Where the claim is executed by a person other than the claimant, 
such person shall, at the time of filing the claim or within a 
reasonable time thereafter, file evidence of such person's authority to 
execute the claim on behalf of such claimant in accordance with 
paragraph (b) (1) and (2) of this section--
    (1) If the person executing the claim is the legally-appointed 
guardian, committee, or other legally-designated representative of such 
claimant, the evidence shall be a certificate executed by the proper 
official of the court of appointment.
    (2) If the person executing the claim is not such a legally 
designated representative, the evidence shall be a statement describing 
such person's relationship to the claimant or the extent to which such 
person has the care of such claimant or such person's position as an 
officer of the institution of which the claimant is an inmate or 
patient. The Bureau may, at any time, require additional evidence to 
establish the authority of any such person to file or withdraw a claim.



Sec. 32.20  Claims.

    (a) Claimants are encouraged to submit their claims on OJP Form 
3650/5 for death benefits, or the disability benefits claim form, which 
can be obtained from: Public Safety Officers' Benefits Program, Bureau 
of Justice Assistance, Washington, DC 20531.
    (b) Where an individual files OJP Form 3650/5 for death benefits, or 
the disability benefits claim form, or other written statement with the 
Bureau which indicates an intention to claim benefits, the filing of 
such written statement shall be considered to be the filing of a claim 
for benefits.
    (c) A claim by a permanently and totally disabled public safety 
officer or on behalf of survivor of a deceased public safety officer 
shall be filed within 1 year after the date of death or prerequisite 
disability certification unless the time for filing is extended by the 
Director for good cause shown.
    (d) Except as otherwise provided in this part, the withdrawal of a 
claim, the cancellation of a request for such withdrawal, or any notice 
provided for pursuant to the regulations in this

[[Page 429]]

part, shall be in writing and shall be signed by the claimant or the 
person legally designated to execute a claim under Sec. 32.19.



Sec. 32.21  Evidence.

    (a) A claimant for any benefit or fee under the Act and this part 
shall submit such evidence of eligibility or other material facts as is 
specified by this part. The Bureau may require at any time additional 
evidence to be submitted with regard to entitlement, the right to 
receive payment, the amount to be paid, or any other material issue.
    (b) Whenever a claimant for any benefit or fee under the Act and 
this part has submitted no evidence or insufficient evidence of any 
material issue or fact, the Bureau shall inform the claimant what 
evidence is necessary for a determination as to such issue or fact and 
shall request the claimant to submit such evidence within a reasonably 
specified time. The claimant's failure to submit evidence on a material 
issue or fact as requested by the Bureau shall be a basis for 
determining that the claimant fails to satisfy the conditions required 
to award a benefit or fee or any part thereof.
    (c) In cases where a copy of a record, document, or other evidence, 
or an excerpt of information therefrom, is acceptable as evidence in 
lieu of the original, such copy or excerpt shall, except as may 
otherwise clearly be indicated thereon, be certified as a true and exact 
copy or excerpt by the official custodian of such record, or other 
public official authorized to certify the copy.



Sec. 32.22  Representation.

    (a) A claimant may be represented in any proceeding before the 
Bureau by an attorney or other person authorized to act on behalf of the 
claimant pursuant to Sec. 32.19.
    (b) No contract for a stipulated fee or for a fee on a contingent 
basis will be recognized. Any agreement between a representative and a 
claimant in violation of this subsection is void.
    (c) Any individual who desires to charge or receive a fee for 
services rendered for an individual in any application or proceeding 
before the Bureau must file a written petition therefore in accordance 
with paragraph (e) of this section. The amount of the fee the petitioner 
may charge or receive, if any, shall be determined by the Bureau on the 
basis of the factors described in paragraphs (e) and (g) of this 
section.
    (d) Written notice of a fee determination made under this section 
shall be mailed to the representative and the claimant at their last 
known addresses. Such notice shall inform the parties of the amount of 
the fee authorized, the basis of the determination, and the fact that 
the Bureau assumes no responsibility for payment.
    (e) To obtain approval of a fee for services performed before the 
Bureau, a representative, upon completion of the proceedings in which 
the representative rendered services, must file with the Bureau a 
written petition containing the following information--
    (1) The dates the representative's services began and ended;
    (2) An itemization of services rendered with the amount of time 
spent in hours, or parts thereof;
    (3) The amount of the fee the representative desires to charge for 
services performed;
    (4) The amount of fee requested or charged for services rendered on 
behalf of the claimant in connection with other claims or causes of 
action arising from the officer's death or permanent and total 
disability before any State or Federal court or agency;
    (5) The amount and itemization of expenses incurred for which 
reimbursement has been made or is expected;
    (6) The special qualifications which enabled the representative to 
render valuable services to the claimant (this requirement does not 
apply where the representative is an attorney); and
    (7) A statement showing that a copy of the petition was sent to the 
claimant and that the claimant was advised of the claimant's opportunity 
to submit his or her comments on the petition to BJA within 20 days.
    (f) No fee determination will be made by the Bureau until 20 days 
after the date the petition was sent to the claimant. The Bureau 
encourages the claimant to submit comments on the petition to the Bureau 
during the 20-day period.

[[Page 430]]

    (g) In evaluating a request for approval of a fee, the purpose of 
the public safety officers' benefits program--to provide a measure of 
economic security for the beneficiaries thereof--will be considered, 
together with the following factors:
    (1) The services performed (including type of service);
    (2) The complexity of the case;
    (3) The level of skill and competence required to render the 
services;
    (4) The amount of time spent on the case;
    (5) The results achieved;
    (6) The level of administrative review to which the claim was 
carried within the Bureau and the level of such review at which the 
representative entered the proceedings;
    (7) The amount of the fee requested for services rendered, excluding 
the amount of any expenses incurred, but including any amount previously 
authorized or requested;
    (8) The customary fee for this kind of service; and
    (9) Other awards in similar cases.
    (h) In determining the fee, the Bureau shall consider and add 
thereto the amount of reasonable and unreimbursed expenses incurred in 
establishing the claimant's case. No amount of reimbursement shall be 
permitted for expenses incurred in obtaining medical or documentary 
evidence in support of the claim which had previously been obtained by 
the Bureau, and no reimbursement shall be allowed for expenses incurred 
in establishing or pursuing the representative's application for 
approval of the fee.



              Subpart F--Determination, Hearing, and Review



Sec. 32.23  Finding of eligibility or ineligibility.

    Upon making a finding of eligibility, the Bureau shall notify each 
claimant of its disposition of his or her claim. In those cases where 
the Bureau has found the claimant to be ineligible for a benefit, the 
Bureau shall specify the reasons for the finding. The finding shall set 
forth the findings of fact and conclusions of law supporting the 
decision. A copy of the decision, together with information as to the 
right to a hearing and review shall be mailed to the claimant at his or 
her last known address.



Sec. 32.24  Request for a hearing.

    (a) A claimant may, within thirty (30) days after notification of 
ineligibility by the Bureau, request the Bureau to reconsider its 
finding of ineligibility. The Bureau shall provide the claimant the 
opportunity for an oral hearing which shall be held within 60 days after 
the request for reconsideration. The claimant may waive the oral hearing 
and present written evidence to the Bureau within 60 days after the 
request. The request for hearing shall be made to the Director, Public 
Safety Officers' Benefits Program, BJA, Washington, DC 20531.
    (b) If requested, the oral hearing shall be conducted before a 
hearing officer authorized by the Bureau to conduct the hearing in any 
location agreeable to the claimant and the hearing officer.
    (c) In conducting the hearing, the hearing officer shall not be 
bound by common law or statutory rules of evidence, by technical or 
formal rules of procedure, or by chapter 5 of the Administrative 
Procedure Act (5 U.S.C. 551 et seq.), but must conduct the hearing in 
such manner as to best ascertain the rights of the claimant. For this 
purpose, the hearing officer shall receive such relevant evidence as may 
be introduced by the claimant and shall, in addition, receive such other 
evidence as the hearing officer may determine to be necessary or useful 
in evaluating the claim. Evidence may be presented orally or in the form 
of written statements and exhibits. The hearing shall be recorded, and 
the original of the complete transcript shall be made a part of the 
claims record.
    (d) Pursuant to sections 805, 806 and 1205(a) of the Omnibus Crime 
Control and Safe Streets Act of 1968, as amended, 42 U.S.C. 3786, 3787 
and 3796c, the hearing officer may, whenever necessary:
    (1) Issue subpoenas;
    (2) Administer oaths;
    (3) Examine witnesses; and
    (4) Receive evidence at any place in the United States.

[[Page 431]]

    (e) If the hearing officer believes that there is relevant and 
material evidence available which has not been presented at the hearing, 
the hearing officer may adjourn the hearing and, at any time prior to 
mailing the decision, reopen the hearing for the receipt of such 
evidence.
    (f) A claimant may withdraw his or her request for a hearing at any 
time prior to the mailing of the decision by written notice to the 
hearing officer so stating, or by orally so stating at the hearing. A 
claimant shall be deemed to have abandoned his or her request for a 
hearing if he or she fails to appear at the time and place set for the 
hearing, and does not, within 10 days after the time set for the 
hearing, show good cause for such failure to appear.
    (g) The hearing officer shall, within 30 days after receipt of the 
last piece of evidence relevant to the proceeding, make a determination 
of eligibility. The determination shall set forth the findings of fact 
and conclusions of law supporting the determination. The hearing 
officer's determination shall be the final agency decision, except when 
it is reviewed by the Director under paragraphs (h) or (i) of this 
section.
    (h)(1) The Director may, on his or her own motion, review a 
determination made by a hearing officer. If the BJA Director decides to 
review the determination, he or she shall:
    (i) Inform the claimant of the hearing officer's determination and 
the BJA Director's decision to review that determination; and
    (ii) Give the claimant 30 days to comment on the record and offer 
new evidence or argument on the issues in controversy.
    (2) The BJA Director, in accordance with the facts found on review, 
may affirm or reverse the hearing officer's determination. The BJA 
Director's determination shall set forth the findings of fact and 
conclusions of law supporting the determination. The BJA Director's 
determination shall be the final agency decision.
    (i)(1) A claimant determined ineligible by a hearing officer under 
paragraph (g) of this section may, within 30 days after notification of 
the hearing officer's determination:
    (i) Request the BJA Director to review the record and the hearing 
officer's determination; and
    (ii) Comment on the record and offer new evidence or argument on the 
issues in controversy.
    (2) The BJA Director shall make the final agency determination of 
eligibility within 30 days after expiration of the comment period. The 
notice of final determination shall set forth the findings of fact and 
conclusions of law supporting the determination. The BJA Director's 
determination shall be the final agency decision.
    (j) No payment of any portion of a death or permanent and total 
disability benefit, except interim death benefits payable under 
Sec. 32.16, shall be made until all hearings and reviews which may 
affect that payment have been completed.



Subpart G--National Programs for Families of Public Safety Officers Who 
                      Have Died in the Line of Duty



Sec. 32.25  National programs.

    The Director is authorized and directed to use up to $150,000 of the 
funds appropriated for this part to establish national programs to 
assist the families of public safety officers who have died in the line 
of duty.

         Appendix To Part 32--PSOB Hearing and Appeal Procedures

                  a. Notification to Claimant of Denial

    These appeal procedures apply to a claimant's \1\ request for 
reconsideration of a denial made by the Public Safety Officers' Benefits 
(PSOB) Office. The denial letter will advise the claimant of the 
findings of fact and conclusions of law supporting the PSOB Office's 
determination, and of the appeal procedures available under Sec. 32.24 
of the PSOB regulations. A copy of every document in the case file that 
(1) contributed to the determination, and (2) was not provided by the 
claimant shall also be attached to the denial letter, except where 
disclosure of the material would result in a clearly unwarranted 
invasion of a third party's privacy. The attached material might 
typically include medical

[[Page 432]]

opinions offered by the Armed Forces Institute of Pathology or other 
medical experts, legal memoranda from the Office of General Counsel of 
the Office of Justice Programs, or memoranda to the file prepared by 
PSOB Office staff. A copy of the PSOB regulations (28 CFR part 32) shall 
also be enclosed.
---------------------------------------------------------------------------

    \1\ As used in this procedure, the word, ``claimant'' means a 
claimant for benefits or, where appropriate, the claimant's designated 
representative.
---------------------------------------------------------------------------

                          b. Receipt of Appeal

    1. When an appeal has been received, the PSOB Office will assign the 
case and will transmit the complete case file to a hearing officer. 
Assignments will be made in turn, from a standing roster, except in 
those cases where a case is particularly suitable to a specific hearing 
officer's experience.
    2. The PSOB Office will inform the claimant of the name of the 
hearing officer, request submission of all evidence to the hearing 
officer, and send a copy of this appeals procedure. If an oral hearing 
is requested, the PSOB Office will be responsible for scheduling the 
hearing and making the required travel arrangements.
    3. The PSOB Office will be responsible for providing all 
administrative support to the hearing officer. An attorney from the 
Office of General Counsel (OGC) who has not participated in the 
consideration of the claim will provide legal advice to the hearing 
officer. The hearing officer is encouraged to solicit the advice of the 
assigned OGC attorney on all questions of law.
    4. Prior to the hearing, the hearing officer shall request the 
claimant to provide a list of expected witnesses and a brief summary of 
their anticipated testimony.

                   c. Designation of Hearing Officers

    A. In an internal instruction the BJA Director designated a roster 
of hearing officers to hear PSOB appeals.
    1. The hearing officers are specifically delegated the Director's 
authority to:
    (i) Issue subpoenas;
    (ii) Administer oaths;
    (iii) Examine witnesses; and
    (iv) Receive evidence at any place in the United States the officer 
may designate.

                     d. Conduct of the Oral Hearing

    A. If requested, an oral hearing shall be conducted before the 
hearing officer in any location agreeable to the officer and the 
claimant.
    1. The hearing officer shall call the hearing to order and advise 
the claimant of (1) the findings of fact and conclusions of law 
supporting the initial determination; (2) the nature of the hearing 
officer's authority; and (3) the manner in which the hearing will be 
conducted and a determination reached.
    2. In conducting the hearing, the hearing officer shall not be bound 
by common law or statutory rules of evidence, by technical or formal 
rules or procedures, or by Chapter 5 of the Administrative Procedure 
Act, but must conduct the hearing in such a manner as best to ascertain 
the rights of the claimant.
    3. The hearing officer shall receive such relevant evidence as may 
be introduced by the claimant and shall, in addition, receive such other 
evidence as the hearing officer may determine to be necessary or useful 
in evaluating the claim.
    4. Evidence may be presented orally or in the form of written 
statements and exhibits. All witnesses shall be sworn by oath or 
affirmation.
    5. If the hearing officer believes that there is relevant and 
material evidence available which has not been presented at the hearing, 
the hearing may be adjourned and, at any time prior to the mailing of 
notice of the decision, reopened for the receipt of such evidence. The 
officer should, in any event, seek to conclude the hearing within 30 
days from the first day of the hearing.
    6. All hearings shall be attended by the claimant, his or her 
representative, and such other persons as the hearing officer deems 
necessary and proper. The wishes of the claimant should always be 
solicited before any other persons are admitted to the hearing.
    7. The hearing shall be recorded, and the original of the complete 
transcript shall be made a part of the claims record.
    8. The hearing will be deemed closed on the day the hearing officer 
receives the last piece of evidence relevant to the proceeding.
    9. If the claimant waives the oral hearing, the hearing officer 
shall receive all relevant written evidence the claimant wishes to 
submit. The hearing officer may ask the claimant to clarify or explain 
the evidence submitted, when appropriate. The hearing officer should 
seek to close the record no later than 60 days after the claimant's 
request for reconsideration.

                            e. Determination

    1. A copy of the transcript shall be provided to the hearing 
officer, to the claimant, to the PSOB Office, and to the OGC after the 
conclusion of the hearing.
    2. The hearing officer shall make his, or her, determination no 
later than the 30th day after the last evidence has been received. 
Copies of the determination shall be made available to the PSOB Office 
and the OGC for their review.
    3. If either the PSOB Office or the OGC disagrees with the hearing 
officer's final determination, that office may request the BJA Director 
to review the record. If the BJA Director agrees to review the record, 
he or she will send the hearing officer's determination, all comments 
received from the PSOB Office, the OGC, or other sources (except where 
disclosure of the material would result in an unwarranted invasion of 
privacy), and notice

[[Page 433]]

of his or her intent to review the record to the claimant. The BJA 
Director will also advise the claimant of his or her opportunity to 
offer comments, new evidence, and argument within 30 days after the 
receipt of notification. The BJA Director shall seek to advise all 
parties of the final agency decision within 30 days after the expiration 
of the comment period.
    4. If the PSOB Office and the OGC agree with the hearing officer's 
determination or the BJA Director declines to review the record, the 
hearing officer's determination will be the final agency decision and 
will be sent to the claimant by the PSOB Office immediately.
    5. If the hearing officer's determination is a denial, all material 
that (1) contributed to the determination and (2) was not provided by 
the claimant shall be attached to the denial letter, except where 
disclosure of the material would result in a clearly unwarranted 
invasion of a third party's privacy. The claimant will be given an 
opportunity to request the BJA Director to review the record and the 
hearing officer's decision, and to offer comments, new evidence, or 
argument within 30 days. The BJA Director shall advise all parties of 
the final agency decision within 30 days after the expiration of the 
comment period.
    6. The PSOB Office will provide administrative support to the 
hearing officer and the BJA Director throughout the appeal process.



PART 33--CRIMINAL JUSTICE BLOCK GRANTS--Table of Contents




                      Subpart A--General Provisions

Sec.
33.1  General.
33.2  Statutory authority.
33.3  OMB approval of information collection requirements.

                     Subpart B--Eligible Applicants

33.10  State government.
33.11  Units of local government.
33.12  Establishment of State Office.

                     Subpart C--Allocation of Funds

33.20  Fund availability.
33.21  Match.
33.22  Title to personal property.
33.23  Limitations on fund use.

                Subpart D--Purposes of Block Grant Funds

33.30  Program criteria.
33.31  Eligible purposes and programs.
33.32  Certified programs.

                   Subpart E--Application Requirements

33.40  General.
33.41  Application content.

                   Subpart F--Additional Requirements

33.50  General financial requirements.
33.51  Audit.
33.52  Civil rights.

            Subpart G--Submission and Review of Applications

33.60  General.
33.61  Review of State applications.

                           Subpart H--Reports

33.70  Annual performance reports.
33.71  Initial project report.

                    Subpart I--Suspension of Funding

33.80  Suspension of funding.

    Authority: Omnibus Crime Control and Safe Streets Act of 1968, 42 
U.S.C. 3701, et. seq., as amended (Pub. L. 90-351, as amended by Pub. L. 
93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115, 
Pub. L. 96-157, and Pub. L. 98-473) (the Justice Assistance Act of 
1984).

    Source: 50 FR 22990, May 30, 1985, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 33.1  General.

    This part defines eligibility criteria and sets forth requirements 
for application for and administration of block grants by state and 
local governments.



Sec. 33.2  Statutory authority.

    The statutory authority for the regulations is the Omnibus Crime 
Control and Safe Streets Act of 1968, 42 U.S.C. 3701, et. seq., as 
amended (Pub. L. 90-351, as amended by Pub. L. 93-83, Pub. L. 93-415, 
Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and Pub. 
L. 98-473) (hereinafter referred to as the Justice Assistance Act of 
1984 or the Act).



Sec. 33.3  OMB approval of information collection requirements.

    The information collection requirements in this part 33 have been 
approved by the Office of Management and Budget under control no. 1121-
0113.

[[Page 434]]



                     Subpart B--Eligible Applicants



Sec. 33.10  State government.

    All states are eligible to apply for and receive block grants. 
Section 404 of the Act. State, as defined in the statute, means any 
state of the United States and includes the District of Columbia, the 
Commonwealth of Puerto Rico, and the Virgin Islands. Section 901(a)(2) 
of the Act.



Sec. 33.11  Units of local government.

    (a) Units of local government are eligible to receive subgrants from 
a participating state. Unit of local government means any city, county, 
township, borough, parish, village, or other general purpose political 
subdivision of a state and includes Indian tribes which perform law 
enforcement functions as determined by the Secretary of the Interior. 
Section 901(a)(3) of the Act.
    (b) If the Bureau determines, during any fiscal year, that a portion 
of the funds allocated to a state will not be required, or that a state 
will be unable to qualify and receive funds, or that a state chooses not 
to participate in the program, then the Bureau shall award the funds 
allocated to the state directly to urban, rural, and suburban units of 
local government or combinations thereof within the state, giving 
priority to those jurisdictions with the greatest need. Section 407(d) 
of the Act.



Sec. 33.12  Establishment of State Office.

    (a) Section 408(a) of the Act provides that the chief executive of 
each participating state shall designate a State Office for the purposes 
of:
    (1) Preparing an application to obtain funds; and
    (2) Administering funds received from the Bureau of Justice 
Assistance, including receipt, review, processing, monitoring, progress 
and financial report review, technical assistance, grant adjustments, 
accounting, auditing, and fund disbursements.
    (b) An office or agency performing other functions within the 
state's executive branch may be designated as the State Office. Section 
408(b) of the Act.



                     Subpart C--Allocation of Funds



Sec. 33.20  Fund availability.

    Section 407(a) of the Justice Assistance Act provides that 80 
percent of the total amount appropriated for part D (block grants) and 
part E (discretionary grants) shall be allocated for block grants.
    (a) Allocation to States. Each participating state shall receive a 
base amount of $250,000 with the remaining funds allocated to each state 
on the basis of the state's relative share of total U.S. population. 
Section 407(a) of the Act. If a state does not elect to participate in 
the Act, the states allocation shall be awarded by the Bureau directly 
to local units of government and combinations of units of local 
government within the state. Section 407(d) of the Act.
    (b) Allocation of funds within the State. (1) Funds granted to the 
state are further subgranted by the state to state agencies and units of 
local government to carry out programs and projects contained in an 
approved application. Each state shall distribute to its local units of 
government, in the aggregate, a portion of the state's block grant funds 
equal to the local government share of total state and local criminal 
justice expenditures. Section 407(b) of the Act. In determining the 
portion to be distributed to local units, the most recent and complete 
data available from the Bureau of Justice Statistics of the U.S. 
Department of Justice shall be used unless the use of other data has 
been approved in advance by the Bureau of Justice Assistance.
    (2) To request approval of a distribution ratio other than that 
based on data of the Bureau of Justice Statistics, the head of the State 
Office must certify in writing to the Bureau of Justice Assistance that 
the ratio it proposes is a correct reflection of the local share of 
total state and local criminal justice expenditures and that the state 
has notified its major local governments of the request and informed 
them of the opportunity to contact the Bureau within 30 days, if they 
have any objections. The written request must also cite the expenditure 
data used to substantiate the proposed change.

[[Page 435]]

    (c) Allocation based on greatest need. In distributing funds among 
urban, rural, and suburban units of local government, the state shall 
give priority to those jurisdictions with the greatest need. Section 
407(b)(2) of the Act.



Sec. 33.21  Match.

    (a) Funds may be used to pay up to 50 percent of the cost of a 
program or project. Section 403(b)(1) of the Act. The remaining non-
Federal share shall be in cash. Section 403(b)(2) of the Act. Match will 
be provided on a project by project basis. However, states may request 
the Bureau to approve exceptions such as match on a program by program 
basis, state-wide basis, unit-of-government basis, or a combination of 
the above. States must include any requests for approval of other than 
project-by-project match in their applications to the Bureau.
    (b) Funds subgranted to an Indian tribe which performs law 
enforcement functions (as determined by the Secretary of the Interior) 
shall be used to pay 100 percent of the cost of a program or project. 
Section 403(b)(1) of the Act.



Sec. 33.22  Title to personal property.

    Section 808 of the Justice Assistance Act provides that 
notwithstanding any other provision of law, title to all expendable and 
nonexpendable personal property purchased with funds made available 
under this title, including property with funds made available under 
this title as in effect before the effective date of the Justice 
Assistance Act of 1984, shall vest in the criminal justice agency or 
nonprofit organization that purchased the property if it certifies to 
the State Office that it will use the property for criminal justice 
purposes. If such certification is not made, title to the property shall 
vest in the State Office, which shall seek to have the property used for 
criminal justice purposes elsewhere in the state prior to using it or 
disposing of it in any other manner. If a State Office does not exist, 
certification will be made directly to the Bureau of Justice Assistance.



Sec. 33.23  Limitations on fund use.

    In order to insure the most efficient and effective use of grant 
funds, the Justice Assistance Act places restrictions on the award of 
block monies for routine equipment, personnel costs, construction, 
supplanting of state and local funds, and land acquisition.
    (a) Equipment and hardware. The purchase or acquisition of equipment 
or hardware with grant funds is prohibited unless the purchase or 
acquisition is an incidental and necessary part of a program. Section 
406(c)(1) of the Act.
    (b) General salaries and personnel costs. Payment of personnel costs 
with grant funds is prohibited unless the costs are an incidental and 
necessary part of a program. Section 406(c)(1) of the Act. Programs 
which have as their primary purpose the payment of usual salaries paid 
to employees generally, or to specific classes of employees within a 
jurisdiction, are prohibited. Notwithstanding the above, grant funds may 
be used to compensate personnel for time engaged in conducting or 
undergoing training programs or the compensation of personnel engaged in 
research, development demonstration, or short-term programs. Section 
406(c)(2) of the Act.
    (c) Construction. Construction projects are prohibited. Section 
406(c)(3) of the Act.
    (d) Land acquisition. Acquisition of land with grant funds is 
prohibited. Section 406(c)(3) of the Act.
    (e) Ineffective programs. The use of grant funds is prohibited for 
programs or projects which, based upon evaluations by the National 
Institute of Justice, Bureau of Justice Assistance, Bureau of Justice 
Statistics, state or local agencies, and other public or private 
organizations, have been demonstrated to offer a low probability of 
improving the functioning of the criminal justice system. The Bureau of 
Justice Assistance will formally identify ineffective programs by notice 
in the Federal Register after opportunity for public comment. Section 
406(c)(4) of the Act.
    (f) Administrative costs. The use of grant funds to pay for costs 
incurred in applying for or administering the block grant is prohibited. 
Block grant funds

[[Page 436]]

may only be used to carry out programs that fall within one of the 
purposes listed in secton 403(a) of the Justice Assistance Act. Section 
403(a) of the Act.
    (g) Period of project support. A grant recipient may receive block 
grant funds for a specific program or project for a period not to exceed 
four years. The four-year maximum allowable period of funding includes 
any period prior to the Justice Assistance Act when the program or 
project was supported by funds made available under title I of the 
Omnibus Crime Control and Safe Streets Act. Section 403(c) of the Act.
    (h) Non-supplantation. Block grant funds shall not be used to 
supplant state or local funds, but will be used to increase the amounts 
of such funds that would, in the absence of Federal aid, be made 
available for criminal justice activities. Section 405(2) of the Act.



                Subpart D--Purposes of Block Grant Funds



Sec. 33.30  Program criteria.

    The Justice Assistance Act requires that block grant funds assist 
states and local governments to carry out specific programs which offer 
a high probability of improving the functioning of the criminal justice 
system, with special emphasis on violent crime and serious offenders. 
Section 403(a) of the Act.
    (a) High probability of improving the criminal justice system. High 
probability of improving the criminal justice system means that a 
prudent assessment of the concepts and implementation plans included in 
a proposed program, project, approach, or practice, together with an 
assessment of the problem to which it is addressed and of data and 
information bearing on the problem, concept, and implementation plan, 
provides strong evidence that the proposed activities would result in 
identifiable improvements in the criminal justice system if implemented 
as proposed. Section 901(a)(21) of the Act.
    (b) Special emphasis on violent crime and serious offenders. Special 
emphasis on violent crime and serious offenders means that a 
relationship exists between the program and violent crime, the victims 
of violent crime, serious offenders and their acts, and the prevention 
of violent crime and serious offenses. Violent crime, for the purpose of 
this program, includes homicide, robbery, assault, arson, residential 
burglary, child abuse and molestation, sexual assault, kidnapping, and 
all felonies involving weapons or narcotics trafficking. Serious 
offenders are those who commit violent crimes.
    (c) Criminal justice. Criminal justice means activities pertaining 
to crime prevention, control, or reduction, or the enforcement of the 
criminal law, including but not limited to, police efforts to prevent, 
control, or reduce crime or to apprehend criminals, including juveniles, 
activities of courts having criminal jurisdiction, and related agencies 
(including but not limited to proescutorial and defender services, 
juvenile delinquency agencies, and pretrial service or release 
agencies), activities of corrections, probation or parole authorities 
and related agencies assisting in the rehabilitation, supervision, and 
care of criminal offenders, and programs relating to the prevention, 
control, or reduction of narcotic addiction and juvenile delinquency. 
Section 901(a)(1) of the Act.



Sec. 33.31  Eligible purposes and programs.

    (a) Eligible purposes. Block grant funds may be used for the 
following purposes listed in section 403(a) of the Justice Assistance 
Act:
    (1) Providing community and neighborhood programs that enable 
citizens and police to undertake initiatives to prevent and control 
neighborhood crime;
    (2) Disrupting illicit commerce in stolen goods and property;
    (3) Combating arson;
    (4) Effectively investing and bringing to trial white-collar crime, 
organized crime, public corruption crimes, and fraud against the 
Government;
    (5) Identifying criminal cases involving persons (including juvenile 
offenders) with a history of serious criminal conduct in order to 
expedite the processing of such cases and to improve

[[Page 437]]

court system management and sentencing practices and procedures in such 
cases;
    (6) Developing and implementing programs which provide assistance to 
jurors and witnesses, and assistance (other than compensation) to 
victims of crimes;
    (7) Providing alternatives to pretrial detention, jail, and prison 
for persons who pose no danger to the community;
    (8) Providing programs which identify and meet the needs of drug-
dependent offenders;
    (9) Providing programs which alleviate prison and jail overcrowding 
and programs which identify existing state and Federal buildings 
suitable for prison use;
    (10) Providing, management, and technical assistance to criminal 
justice personnel and determining appropriate prosecutorial and judicial 
personnel needs;
    (11) Providing prison industry projects designed to place inmates in 
a realistic working and training environment in which they will be 
enabled to acquire marketable skills and to make financial payments for 
restitution to their victims, for support of their own families, and for 
support of themselves in the institution;
    (12) Providing for operational information systems and workload 
management systems which improve the effectiveness of criminal justice 
agencies;
    (13) Not more than 10 percent of the state's block grant funds for 
providing programs of the same types as described in section 501(a)(4) 
of the Act which:
    (i) The Bureau establishes under section 503(a) of the Act as 
discretionary programs for financial assistance; or
    (ii) Are innovative and have been deemed by the Bureau as likely to 
prove successful;
    (14) Implementing programs which address critical problems of crime, 
such as drug trafficking, which have been certified by the Director of 
the Bureau of Justice Assistance as having proved successful, after a 
process of consultation coordinated by the Assistant Attorney General of 
the Office of Justice Programs with the Director of the National 
Institute of Justice, Director of the Bureau of Justice Statistics, and 
Administrator of the Office of Juvenile Justice and Delinquency 
Prevention;
    (15) Providing programs which address the problem of serious 
offenses committed by juveniles;
    (16) Addressing the problem of crime committed against the elderly;
    (17) Providing training, technical assistance, and programs to 
assist state and local law enforcement authorities in rural areas in 
combating crime, with particular emphasis on violent crime, juvenile 
delinquency, and crime prevention; and
    (18) Improving the operational effectiveness of law enforcement by 
integrating and maximizing the effectiveness of police field operations 
and the use of crime analysis techniques.
    (b) Programs. The Bureau of Justice Assistance has certified that 
specific programs meet these purposes, conform with the program 
criteria, and are eligible for block grant support. (See Sec. 33.32 of 
the regulations, Certified Programs). These programs are described in 
Program Briefs that are available from the Bureau of Justice Assistance. 
The list of certified programs will be expanded in the future based on 
the statutory criteria to permit a more complete coverage of each of the 
purposes. This certification will be done in consultation with state and 
local governments and published in the Federal Register. States and 
localities may use block funds to implement one or more of these 
certified programs, if they agree to comply with the critical elements 
set forth in Sec. 33.32 of these regulations, and to provide data on the 
performance indicators listed. States and localities selecting these 
programs may identify the certified program in their application by name 
only, without further description. Programs other than those certified 
by the Bureau of Justice Assistance may be proposed by the state and/or 
units of local government and approved for funding by the Bureau. To 
obtain approval to fund a proposed program, the applicant must provide 
in its application a description of the program and evidence that it 
meets the statutory program criteria. The application requirements for 
program approval are contained in Subpart E--Application Requirements.

[[Page 438]]



Sec. 33.32  Certified programs.

    (a) The Act encourages the implementation of programs that have been 
proven successful. Pursuant to section 403(a)(14) of the Act, the Bureau 
of Justice Assistance, after a process of consultation coordinated by 
the Assistant Attorney General of the Office of Justice Programs with 
the National Institute of Justice, the Bureau of Justice Statistics, and 
the Office of Juvenile Justice and Delinquency Prevention, certifies 
that the following programs have been proven successful:
    (1)(i) Purpose: Providing community and neighborhood programs that 
enable citizens and police to undertake initiatives to prevent and 
control neighborhood crime.
    (ii) Certified program: Community crime prevention. This program 
aims to prevent crime and reduce the fear of crime through organized 
collective citizen action. Community crime prevention programs may be 
initiated by either law enforcement agencies or existing community 
groups, but each must have the active support and involvement of the 
other. Local programs must be designed to meet the needs and problems of 
specific neighborhoods or communities and particular population groups, 
including the elderly. They must make extensive use of volunteers. The 
specific services or activities to be implemented depend on the local 
situation and crime problem, but usually have, as a core element, 
neighborhood (block) watch with additional activities optional. Programs 
to provide training, technical assistance and other support services are 
also eligible for funding. Program objectives and elements are described 
in greater detail in the Program Brief on Community Crime Prevention.
    (A) Critical elements:
    (1) Pre-program planning to determine needs and problems of 
community.
    (2) Targeting of activities and services to meet local situation.
    (3) Maximum use of volunteers.
    (4) Cooperation of community organizations and law enforcement.
    (B) Optional activities: Projects must implement one or more of the 
following:
    (1) Neighborhood Watch
    (2) Operation ID
    (3) Security Surveys
    (4) Citizen Patrols
    (5) Escort or Special Services for the Elderly
    (6) Block Homes or Safe-Houses
    (7) Neighborhood Clean-Ups in High Crime Areas
    (8) Public Education
    (9) Training
    (10) Technical Assistance
    (C) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Types of services provided.
    (3) Units of service delivered (e.g., number of block watches 
organized).
    (4) Number of volunteers participating.
    (2)(i) Purpose: Disrupting illicit commerce in stolen goods and 
property.
    (ii) Certified program: Property Crime (STING) Program. This program 
targets the apprehension and prosecution of burglars/thieves as well as 
those individuals who provide the outlets for receipt of stolen goods 
and property. The majority of the model programs have established 
storefronts in which law enforcement officers pose as fences who buy 
stolen goods. In areas where there is a high concentration of organized 
crime, programs have employed techniques to infiltrate organizations in 
order to obtain evidence for prosecution of serious crime. Program 
objectives and elements are described in greater detail in the Program 
Brief on Property Crime (STING) Program.
    (A) Critical elements:
    (1) Program planning, which consists of:
    (i) Analysis of the stolen property redistribution system in the 
jurisdiction.
    (ii) Selection of the target criminal population and/or property at 
which the program will be directed.
    (iii) Establishment of policies and procedures governing roles of 
participants, and program implementation.
    (2) Establishment of records maintenance and management system; 
security management procedures; and stolen property/contraband/evidence 
management.
    (3) Implementation of operations, including undercover activities 
and ongoing intelligence gathering and analysis.

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    (4) Coordination with prosecutorial personnel in case development 
and proper use of undercover techniques; and cooperation with victims to 
assure return of property.
    (B) Performance indicators:
    (1) Number of arrest and type of offense.
    (2) Number of convictions.
    (3) Dollar value of property received.
    (4) Dollar value of property returned to victims.
    (5) Number of fencing operations disrupted.
    (3)(i) Purpose: Combating arson.
    (ii) Certified program: Arson Prevention and Control Program. This 
program employs the task force concept as a strategy to prevent and 
control the malicious or fraudulent burning of property. It attempts to 
reduce the incidence of arson and increase arrest, prosecution and 
conviction rates. The program focuses on arson that is economically 
motivated. Program objectives and elements are described in greater 
detail in the Program Brief on Arson Prevention and Control.
    (A) Critical elements:
    (1) Program planning to establish:
    (i) An understanding to the area's specific arson problems.
    (ii) A selection of program priorities, strategies, and the 
targeting of the criminal population.
    (iii) An outline of policies and procedures for program participants 
and program implementation.
    (iv) Written agreements indicating participation in the program, 
acceptance of established criteria and procedures, and commitment of 
resources.
    (2) Establishment of a system for collecting and analyzing data to 
target and identify arson patterns, methods and areas of vulnerability.
    (3) Establishment of investigative and prosecutorial elements 
directed at the crime of arson.
    (4) Involvement of community groups and private industry in support 
of the program.
    (B) Performance indicators:
    (1) Number of staff assigned to the project.
    (2) Number of confirmed arson incidents reported during reporting 
period.
    (3) Number of confirmed arson incidents reported during equivalent 
pre-reporting period.
    (4) Number of incidents resulting in a prosecution during program 
period.
    (5) Number of incidents resulting in a prosecution during equivalent 
pre-reporting period.
    (6) Number of prosecutions resulting in conviction.
    (7) Amount of property damage/loss caused by incendiary/suspicious 
fires during program period.
    (8) Amount of property damage/loss by incendiary/suspicious fires 
during equivalent pre-reporting period.
    (4)(i) Purpose: Effectively investigating and bringing to trial 
white-collar crime, organized crime, public corruption crime, and fraud 
against the Government. (No specific program has been certified by the 
Bureau. Applicants may propose programs for approval in accordance with 
the provisions of Sec. 33.41.)
    (5)(i) Purpose: Identifying criminal cases involving persons 
(including juvenile offenders) with a history of serious criminal 
conduct in order to expedite the processing of such cases and to improve 
court system management and sentencing practices and procedures in such 
cases.
    (ii) Certificate program: Career Criminal Prosecution Program. This 
program targets the identification and prosecution of violent and repeat 
offenders. Model efforts include a full time prosecutorial unit devoted 
to increasing the rate of prosecution of such offenders, special 
screening criteria, and policies that initiate or enhance vertical 
prosecution. Program objectives and elements are described in greater 
detail in the Program Brief on Career Criminal Prosecution.
    (A) Critical elements:
    (1) Screening and prosecution criteria to identify cases involving 
violent offenses and repeat offenders.
    (2) A separate, full-time prosecutorial unit for violent and repeat 
offenders to enable vertical prosecution of assigned cases.
    (3) Reduction of caseload to enable thorough case preparation/
presentation.
    (4) A policy requiring limited or no plea negotiations.

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    (5) A policy of opposing pre-trial motions for continuances.
    (6) A policy to maintain effective communications with victims and 
witnesses.
    (B) Performance indicators:
    (1) Number of full-time prosecutors assigned to unit.
    (2) Number of cases meeting established criteria.
    (3) Number of cases prosecuted.
    (4) Number of and percentage of cases resulting in conviction.
    (5) Number and percentage of individuals incarcerated.
    (iii) Certified program: Court Delay Reduction Program. This program 
expedites the processing of felony cases in trial courts. It emphasizes 
reduction of backlogs while maintaining equitable treatment and due 
process. Model programs result in reduction of case processing time, 
minimization of court appearances for victims and witnesses, and 
improvement of the public's perception of the quality of the criminal 
justice system. This program is available for both metropolitan trial 
courts and state-level court systems. Program objectives and elements 
are described in greater detail in the Program Brief on Court Delay 
Reduction.
    (A) Critical elements: Both the metropolitan and the state level 
programs are divided into two phases, planning and implementation.
    (1) Planning (Phase I):
    (i) Formation of delay reduction advisory committee.
    (ii) Data collection, analysis, and problem identification.
    (iii) Adoption of case processing goals for criminal cases.
    (iv) Development of action plan(s).
    (2) Implementation (Phase II):
    (i) Education of trial judges and others on objectives, standards 
and procedures.
    (ii) Systematic monitoring of all criminal cases filed in 
participating courts.
    (iii) System for regular acquisition and assessment of data from 
each trial court (state level only).
    (iv) Modification of rules and procedures at all levels of program 
participation when program results indicate need for changes.
    (B) Performance indicators.
    (1) Time standard established for processing of criminal cases under 
the project (days from arrest to trial).
    (2) Percentage of criminal cases prior to project that met standard.
    (3) Percentage of criminal cases disposed of during the project 
reporting period that met time disposition standard.
    (4) Reduction in the average number of continuances from the 
equivalent pre-project period.
    (6)(i) Purpose: Developing and implementing programs which provide 
assistance to jurors and witnesses, and assistance (other than 
compensation) to victims of crimes.
    (ii) Certified program: victim assistance. This program provides 
services and assistance to victims in order to speed their recovery from 
the financial loss, physical suffering and emotional trauma of 
victimization, and to assure proper and sensitive treatment of innocent 
victims in the criminal justice process. Victim assistance programs 
usually encompass a wide range of support services. The specific 
services to be provided, and the specific target group should reflect 
local needs and priorities. Program objectives and elements are 
described in greater detail in the Program Brief on Victim Assistance.
    (A) Critical elements:
    (1) Analysis of the community's victim/witness needs and problems.
    (2) Targeting of existing and planned activities and services to 
respond to this community situation.
    (3) Formulation of agreements for cooperation between criminal 
justice system agencies and public and private victim/witness service 
providers.
    (B) Optional activities: Projects must implement a minimum of three 
(3) or more of the following:
    (1) 24 hour crisis intervention and support or emergency services.
    (2) Counseling.
    (3) Assistance with compensation claims, creditors, community 
referrals, and restitution.
    (4) Police, prosecutor or court-related services.
    (5) Safety (including shelter), supportive counseling, social 
services support and criminal justice advocacy.
    (6) Training and education for individuals having direct contact 
with the

[[Page 441]]

victims, i.e., police, medical personnel, prosecutors, judges, etc.
    (C) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Types of services provided.
    (3) Number of victims/witnesses served (by type of service).
    (4) Number of criminal justice personnel and others trained.
    (7)(i) Purpose: Providing alternatives to pretrial detention, jail, 
and prison for persons who pose no danger to the community.
    (ii) Certified program: Jail overcrowding/alternatives to pretrial 
detention. This program aims to control jail population through improved 
intake screening which assures that persons who should be in jail are 
detained, and that alternatives are available for those requiring less 
than maximum supervision. Particular care must be taken that persons 
charged with violent crimes be detained and that the impact on victims 
and witnesses be a factor in screening decisions. The program calls for 
the development of a jail population management plan as part of a 
planning phase, followed by implementation of specific activities and 
services. Among the activities and services that may be funded are 
central intake and screening, pretrial services, diversion to 
detoxification centers, citation release, community corrections, 
sentencing alternatives, and jail management information systems. 
Program objectives and elements are described in greater detail in the 
Program Brief on Jail Overcrowding/Alternatives to Pretrial Detention.
    (A) Critical elements:
    (1) Implementation of program by state.
    (2) Formation of broad-based jail policy committee.
    (3) Program planning that includes data collection, analysis, 
problem identification, and development of jail population management 
plan, including the removal of juveniles from adult jails and lockups.
    (4) Implementation of plan.
    (B) Optional activities: Based on their plans, projects must 
implement one or more of the following activities or components:
    (1) Central intake and classification.
    (2) Comprehensive pre-trial services.
    (3) Diversion of public inebriates to detoxification centers.
    (4) Diversion of juveniles to secure and non-secure alternatives.
    (5) Citation release.
    (6) Community correction centers.
    (7) Sentencing alternatives (including restitution and work 
release).
    (8) Jail management information system.
    (C) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Pretrial jail population.
    (3) Types of services and alternatives implemented.
    (4) Numbers of arrestees served/diverted by type of alternative.
    (5) Convicted clients completing alternative punishment 
successfully.
    (6) Re-arrest rate of released defendants.
    (7) Estimated jail days saved.
    (8)(i) Purpose: Providing programs which identify and meet the needs 
of drug-dependent offenders.
    (ii) Certified program: Treatment Alternatives to Street Crime 
Program (TASC). This program intervenes in the criminal justice process 
by early identification of substance-abusing offenders, referral to 
community treatment resources, and monitoring of treatment. Model 
programs provide the following services: screening arrestees, providing 
diagnostic/referral services for treatment, and monitoring progress of 
clients. Persons charged with or convicted of violent crimes including 
murder, rape, arson, armed robbery, sexual assault, burglary, child 
molestation, and manslaughter are excluded. Program objectives and 
elements are described in greater detail in the Program Brief on 
Treatment Alternatives to Street Crime.
    (A) Critical elements:
    (1) Broad-based support by criminal justice agencies.
    (2) Establishment of TASC advisory board.
    (3) Establishment of administrative management unit with full-time 
director.
    (4) Development of specific program eligibility criteria.

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    (5) Establishment of a process for screening potential clients and 
court liaison.
    (6) Development of methods for assessing most appropriate treatment 
approaches.
    (7) Documentation of the availability of community treatment 
programs and their willingness to accept TASC clients.
    (8) Establishment of monitoring/tracking system.
    (B) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Number of persons screened.
    (3) Number of clients accepted.
    (4) Number of clients completing program.
    (5) Number of client re-arrests while in the program.
    (9) Purpose: Providing programs which alleviate prison and jail 
overcrowding and programs which identify existing state and Federal 
buildings suitable for prison use. (No specific program has been 
certified by the Bureau. Applicants may propose programs for approval in 
accordance with the provisions of Sec. 33.41.)
    (10)(i) Purpose: Provide training, management, and technical 
assistance to criminal justice personnel and determining appropriate 
prosecutorial and judicial personnel needs. (No specific program has 
been certified by the Bureau. Applicants may propose programs for 
approval in accordance with the provisions in Sec. 33.41. Training, 
management, and technical assistance programs must be focused on one of 
the 17 other statutory purposes and be based on a needs assessment. 
Entry level or basic training is prohibited.)
    (11) Purpose: Providing prison industry projects designed to place 
inmates in a realistic working and training environment in which they 
will be enabled to acquire marketable skills and to make financial 
payments for restitution to their victims, for support of their own 
familes, and for support of themselves in the institution. (No specific 
program has been certified by the Bureau. Applicants may propose 
programs for approval in accordance with the provisions of Sec. 33.41.)
    (12)(i) Purpose: Providing for operational information systems and 
workload management systems which improve the effectiveness of criminal 
justice agencies. All operational information system programs must be 
based on a needs assessment and requirements analysis and must include 
the definition of goals and objectives. In addition, they must assure 
that if public domain software is not available, any improvements to 
proprietary software will be placed in the public domain.
    (ii) Certified program: Prosecution Management Support System 
(PMSS). This program is a specific application of the generic planning, 
implementation, and assessment requirements for effective system 
development and performance. PMSS uses automated data processing systems 
to support priority prosecution, improved conviction rates, speedy trial 
management, and improved efficiency/effectiveness of the prosecutor's 
office. Model programs result in information systems which support 
prosecution activities such as identification of violent and career 
criminals, case and subponena preparation and witness notification. 
Systems are used to monitor management decisions and prosecutor actions 
and to reduce case processing time and case preparation time. Program 
objectives and elements are described in greater detail in the Program 
Brief on Prosecution Management Support System. This Program Brief has 
been designed to provide guidance for all criminal justice information 
systems. The critical elements for PMSS are transferable to and are 
equally critical for other criminal justice information systems.
    (A) Critical elements:
    (1) Pre-program needs assessment.
    (2) Implementation plan for fulfilling information needs and 
improving management and research capabilities.
    (3) Process for monitoring management decisions and prosecutor 
actions.
    (B) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Case processing time.
    (3) Conviction rates.
    (13) Purpose: Providing programs of the same types as programs 
described in section 501(a)(4) of the Act which:
    (i) The Director establishes under section 503(a) of the Justice 
Assistance

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Act as discretionary programs for financial assistance; or
    (ii) Are innovative and have been deemed by the Director as likely 
to prove successful.
    (14) Purpose: Implementing programs which address critical problems 
of crime, such as drug trafficking, which have been certified by the 
Director, after a process of consultation coordinated by the Assistant 
Attorney General, Office of Justice Programs, with the Director of the 
National Institute of Justice, Director of the Bureau of Justice 
Statistics, and Administrator of the Office of Juvenile Justice and 
Delinquency Prevention, as having proved successful.
    (15)(i) Purpose: Providing programs which address the problem of 
serious offenses committed by juveniles.
    (ii) Certified program: Restitution by juvenile offenders: This 
program promotes the use of restitution by juvenile offenders to make 
juveniles accountable to the victim and the community and to increase 
community confidence in the juvenile justice system. Juvenile 
restitution has been an effective alternative to incarceration in 
jurisdictions that have used it, reducing recidivism and providing 
benefits to victims. Assistance in the design and development of 
Juvenile Restitution Programs funded under this Program is available 
through the Restitution Education, Training and Technical Assistance 
(RESTTA) Program funded by the Office of Juvenile Justice and 
Delinquency Prevention. Program objectives and elements are described in 
greater detail in the Program Brief on Restitution by Juvenile 
Offenders.
    (A) Critical elements:
    (1) Legal authority to order restitution as a disposition for 
delinquent offenses.
    (2) Commitment of the court and juvenile justice personnel.
    (3) Pre-program planning to establish written policies and 
procedures, including:
    (i) The stage of the system at which restitution will be initiated;
    (ii) Specification of the target population; and
    (iii) Establishment of procedures for determining the appropriate 
restitution to be rendered by the juvenile offender, enforcing 
restitution orders.
    (4) Program management and administration should describe:
    (i) Agency roles and responsibilities; and
    (ii) Case management and tracking system for performance indicators.
    (5) Community involvement in the program.
    (B) Performance indicators:
    (1) Personnel:
    (i) Number employed full and part-time in restitution; and
    (ii) Average restitution caseload per restitution/probation officer.
    (2) Program participation:
    (i) Number of juveniles by offense type;
    (ii) Type and amount of restitution ordered; and
    (iii) Number of victims (by type and amount of loss/injury) 
receiving restitution.
    (3) Number/percent juveniles successfully completing their 
restitution orders.
    (4) Total amount of restitution collected/completed.
    (5) Number obtaining restitution-related employment/job services.
    (6) Operational costs per case.
    (7) Number of participants rearrested during the program.
    (8) Number of participants incarcerated as a result of a rearrest or 
program failure.
    (9) Number retaining restitution-related employment following 
completion.
    (10) Victim satisfaction with the program.
    (16) Purpose: Addressing the problem of crime committed against the 
elderly. (No specific program has been certified by the Bureau. 
Applicants may propose programs for approval in accordance with the 
provisions of Sec. 33.41. Many of the programs identified under other 
purposes indirectly address the problem of crime against the elderly. 
Victim assistance programs and community crime prevention programs in 
particular often provide services that meet the special needs of the 
elderly.)
    (17) Purpose: Provide training, technical assistance, and programs 
to assist state and local law enforcement authorities in rural areas in 
combating

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crime, with particular emphasis on violent crime, juvenile delinquency, 
and crime prevention. (No specific program has been certified by the 
Bureau. Applicants may propose programs for approval in accordance with 
the provisions of Sec. 33.41. Many of the programs identified under 
other purposes are equally applicable to rural and urban areas.)
    (18)(i) Purpose: Improve the operational effectiveness of law 
enforcement by integrating and maximizing the effectiveness of police 
field operations and the use of crime analysis techniques.
    (ii) Certified program: Integrated Criminal Apprehension Program 
(ICAP). This program integrates and directs law enforcement activities 
relative to the prevention, detection and investigation of serious and 
violent crime. Components of model programs have included systematic 
data collection and analysis, crime analysis, structured planning and 
service delivery. The program emphasizes better use of existing 
resources and better management of the patrol operation and 
investigative process. It results in a process which increases arrests 
for serious crimes. Program objectives and elements are described in 
greater detail in the Program Brief on the Integrated Criminal 
Apprehension Program.
    (A) Critical elements:
    (1) Commitment of law enforcement agency top management to concept 
of manpower deployment based on crime analysis.
    (2) Modification of agency data gathering methods to enhance 
planning and crime analysis.
    (3) Establishment of crime analysis and planning function.
    (4) Implementation of strategies, tactics and processes based on 
analysis that contribute to better management of criminal investigation 
and patrol.
    (B) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Types of strategies implementations e.g., directed patrol, crime 
analysis.
    (3) Types of crimes targeted.
    (4) Clearance rates (by arrest) for targeted crimes.
    (5) Conviction rates for targeted crimes.



                   Subpart E--Application Requirements



Sec. 33.40  General.

    This subpart sets forth the required programmatic content of block 
grant applications.



Sec. 33.41  Application content.

    (a) Format. Applications from the states for criminal justice block 
grants must be submitted on Standard Form 424, Application for Federal 
Assistance, at a time specified by the Bureau of Justice Assistance. The 
Bureau will provide to the states an ``Application Kit'' that includes 
SF 424, a list of assurances that the applicant must agree to, a table 
of fund allocations, and additional guidance on how to prepare and 
submit an application for criminal justice block grants.
    (b) Programs. Applications must set forth programs and projects 
covering a two-year period which meet the purposes and criteria of 
section 403(a) of the Justice Assistance Act and these regulations. 
Applications must be amended annually, if new programs or projects are 
to be added or if the programs or projects contained in the approved 
application are not implemented. The application must designate which 
statutory purpose the program or project is intended to achieve, 
identify the state agency or unit of local government that will 
implement the program or project, and provide the estimated funding 
level for the program or project including the amount and source of cash 
matching funds. Section 405 of the Act.
    (1) Section 33.32 of the regulations identifies specific programs 
which have been certified by the Bureau to meet the requirements of the 
Act. Approval will be given for implementation of any of these programs, 
if the applicant agrees to include all the critical elements in the 
program design. An applicant need only identify the program, which 
purpose it is intended to achieve, the state agency or unit of local 
government which will implement it, the funding level (including amount 
and source of match).

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    (2) Applicants may request approval of programs other than one of 
those certified by the Bureau. The application must contain, in addition 
to the information in Sec. 33.41(b), a description of the program 
(including its critical elements and performance indicators) and 
evidence that it meets the criteria of offering a high probability of 
improving the functions of the criminal justice system. Evidence may 
include, but is not necessarily limited to, the results of any 
evaluations of previous tests or demonstrations of the program concept.
    (3) Applicants may also request approval to expend up to 10 per 
centum of their funds for programs which the Director of the Bureau of 
Justice Assistance has established as priorities for discretionary 
grants under section 503 of the Act, or which are innovative programs 
that are deemed by the Director as likely to prove successful. For a 
program the same as a discretionary program, the applicant may identify 
it by name only and provide the information required under 
Sec. 33.41(b)(1) of the regulations. For an innovative program, the 
applicant must describe the program (including its critical elements and 
performance indicators) and provide evidence that it is likely to prove 
successful.
    (c) Confidential information. Applications which request funds for 
the STING Program should not state the location of the project. The 
application should only include the program designation, the funds 
involved, and the number of projects. The state agency or unit of local 
government implementing the project will be made known to the Bureau of 
Justice Assistance upon request or upon completion of the project.
    (d) Audit requirement. Applications from the state must include the 
date of the State Office's last audit and the anticipated date of the 
next audit.
    (e) Civil rights contact. Applications from the state must include 
the name of a civil rights contact person who has lead responsibility in 
insuring that all applicable civil rights requirements are met and who 
shall act as liaison in civil rights matters with the Office of Civil 
Rights Compliance of the Office of Justice Programs.
    (f) Application assurances. Applications must include the following 
assurances:
    (1) An assurance that, following the first fiscal year covered by an 
application and each fiscal year thereafter, the applicant will submit 
to the Bureau of Justice Assistance, where the applicant is a state or 
jurisdiction in a non-participating state, a performance report 
concerning the activities carried out, and an assessment of their 
impact; section 405(1) of the Act.
    (2) A certification that Federal funds made available under this 
title will not be used to supplant state or local funds, but will be 
used to increase the amounts of such funds that would, in the absence of 
Federal funds, be made available for criminal justice activities; 
section 405(2) of the Act.
    (3) An assurance that funds accounting, auditing, monitoring, and 
such evaluation procedures as may be necessary to keep such records as 
the Bureau of Justice Assistance shall prescribe will be provided to 
assure fiscal control, proper management, and efficient disbursement of 
funds received under this title; section 405(3) of the Act.
    (4) An assurance that the applicant shall maintain such data and 
information and submit such reports, in such form, at such times, and 
containing such information as the Bureau of Justice Assistance may 
require; section 405(4) of the Act.
    (5) A certification that the programs meet all the requirements, 
that all the information contained in the application is correct, that 
there has been appropriate coordination with affected agencies, and that 
the applicant will comply with all provisions of the Justice Assistance 
Act 1984 and all other applicable Federal laws; section 405(5) of the 
Act.
    (6) If the applicant is a state, an assurance that not more than 10 
percent of the aggregate amount of funds received by a State under this 
part for a fiscal year will be distributed for programs and projects 
designated as intended to achieve the purpose specified in section 
403(a)(13) of the Act; section 405(6) of the Act.

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    (7) An assurance that the state will take into account the needs and 
requests of units of general local government in the state and encourage 
local initiative in the development of programs which meet the purposes 
of the Act; section 405(7) of the Act.
    (8) An assurance that the state application and any amendment to 
such application, has been submitted for review to the state legislature 
or its designated body (for purpose of this requirement, an application 
or amendment shall be deemed to be reviewed if the state legislature or 
its designated body does not review it within 60 days from the time it 
was submitted to it); section 405(8) of the Act.
    (9) An assurance that the state application and any amendment 
thereto was made public before submission to the Bureau and, to the 
extent provided under state law or established procedure, an opportunity 
to comment thereon was provided to citizens and to neighborhood and 
community groups; section 405(9) of the Act.
    (10) An assurance that the applicant will comply, and all its 
subgrantees and contractors will comply, with the non-discrimination 
requirements of the Justice Assistance Act; title VI of the Civil Rights 
Act of 1964; section 504 of the Rehabilitation Act of 1973, as amended; 
title IX of the Education Amendments of 1972; the Age Discrimination Act 
of 1975; and the Department of Justice Non-Discrimination regulations 28 
CFR part 42, subparts C, D, E, and G;
    (11) An assurance that in the event a Federal or state court or 
Federal or state administrative agency makes a finding of discrimination 
after a due process hearing on the grounds of race, color, religion, 
national orgin or sex against a recipient of funds, the recipient will 
forward a copy of the finding to the Office of Civil Rights Compliance 
(OCRC) of the Office of Justice Programs;
    (12) An assurance that the applicant will require that every 
recipient required to formulate an Equal Employment Opportunity Program 
(EEOP) in accordance with 28 CFR 42.301 et. seq., submit a certification 
to the state that it has a current EEOP on file which meets the 
requirements herein;
    (13) An assurance that the applicant will provide an EEOP, if 
required to maintain one, where the application is for $500,000 or more 
and provide the EEOP of any subgrantee of $500,000 or more;
    (14) An assurance that the applicant will comply with the provisions 
of the Office of Justice Programs ``Financial and Administrative Guide 
for Grants,'' M 7100.1;
    (15) An assurance that the applicant will comply with the provisions 
of 28 CFR applicable to grants and cooperative agreements including part 
18, Administrative Review Procedure; part 20, Criminal Justice 
Information Systems; part 22, Confidentiality of Identifiable Research 
and Statistical Information; part 23, Criminal Intelligence Systems 
Operating Policies; part 30, Intergovernmental Review of Department of 
Justice Programs and Activities; part 42; Non-discrimination Equal 
Employment Opportunity Policies and Procedures; part 61, Procedures for 
Implementing the National Environmental Policy Act; and part 63, 
Floodplain Management and Wetland Protection Procedures.
    (g) Non-participating State. If a state notifies the Bureau of 
Justice Assistance of its intent not to apply for block grant funds or 
fails to submit an application by the submission date, the Bureau will 
announce the availability of the block grant funds to local units of 
government in the non-participating state and will invite them to submit 
applications directly to the Bureau. A unit of local government 
receiving a block grant award directly from the Bureau assumes 
responsibility for all activities which would normally be the 
responsibility of the State Office.



                   Subpart F--Additional Requirements



Sec. 33.50  General financial requirements.

    Grants funded under the criminal justice block grant program are 
governed by the provisions of the Office of Mangement and Budget (OMB) 
Circulars applicable to financial assistance. These Circulars along with 
additional

[[Page 447]]

information and guidance are contained in ``Financial and Administrative 
Guide for Grants,'' Guideline Manual 7100.1, available from the Office 
of Justice Programs. This Guideline Manual provides information on cost 
allowability, methods of payment, audit, accounting systems and 
financial records.



Sec. 33.51  Audit.

    Pursuant to Office of Management and Budget Circular A-128 ``Audits 
of State and Local Governments,'' all grantees and subgrantees must 
provide for an independent audit of their activities on a periodic 
basis. For additional information on audit requirements, applicants 
should refer to the ``Financial and Administrative Guide for Grants,'' 
Guideline Manual 7100.1, Office of Justice Programs.



Sec. 33.52  Civil rights.

    The Justice Assistance Act provides that ``no person in any state 
shall on the ground of race, color, religion, national orgin, or sex be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under or denied employment in connection 
with any programs or activity funded in whole or in part with funds made 
available under this title.'' Section 809(c)(1) of the Act. Recipients 
of funds under the Act are also subject to the provisions of title VI of 
the Civil Rights Act of 1964; section 504 of the Rehabilitation Act of 
1973, as amended; title IX of the Education Amendments of 1972; the Age 
Discrimination Act of 1975; and the Department of Justice Non-
Discrimination regulations 28 CFR part 42, subparts C, D, E, and G.



            Subpart G--Submission and Review of Applications



Sec. 33.60  General.

    This subpart describes the process and criteria for Bureau of 
Justice Assistance review and approval of state applications and 
amendments.



Sec. 33.61  Review of State applications.

    (a) Review criteria. The Act provides the basis for review and 
approval or disapproval of state applications and amendments in whole or 
in part. These are:
    (1) Compliance with the statutory requirements of the Justice 
Assistance Act and the regulations of the Bureau of Justice Assistance. 
Section 406(a)(1) of the Act.
    (2) Compliance with Executive Order 12372, ``Intergovernmental 
Review of Federal Programs.'' This program is covered by Executive Order 
12372 and Department of Justice Implementing regulations 28 CFR part 30. 
States must submit block grant applications to the state ``Single Point 
of Contact'', if there is a ``Single Point of Contact'', and if this 
program has been selected for coverage by the state process, at the same 
time applications are submitted to the Bureau of Justice Assistance. 
State processes have 60 days starting from the application submission 
date to comment on applications. Applicants should contact their state 
``Single Point of Contact'' as soon as possible to alert them of the 
prospective application and receive instructions regarding the process.
    (b) Sixty day rule. The Bureau of Justice Assistance shall approve 
or disapprove applications or amendments within sixty (60) days of 
official receipt. The application or amendment shall be considered 
approved unless the Bureau of Justice Assistance informs the applicant 
in writing of specific reasons for disapproval prior to the expiration 
of the 60-day period. Applications that are incomplete, as determined by 
the Bureau of Justice Assistance, shall not be considered officially 
received for purposes of the 60-day rule. Section 406(a)(2) of the Act.
    (c) Written notification and reasons for disapproval. The Bureau of 
Justice Assistance shall notify the applicant in writing of the specific 
reasons for the disapproval of the application or amendment, in whole or 
in part. Section 406(a)(2) of the Act.
    (d) Affirmative finding. The Bureau of Justice Assistance, prior to 
approval of the application or amendments, must make an affirmative 
finding in writing that the program or project has been reviewed in 
accordance with section 405 of the Act and is lilkely to contribute 
effectively to the achievement of the

[[Page 448]]

objectives of the Act. Section 406(a)(2) of the Act.



                           Subpart H--Reports



Sec. 33.70  Annual performance report.

    (a) Section 405 of the Justice Assistance Act requires that the 
state, or a local unit of government in the case of a non-participating 
state, submit annually to the Bureau of Justice Assistance a performance 
report (including an assessment of impact) concerning the activities 
carried out under the grant. These performance reports will provide the 
basis for the annual report from the Bureau to the President and the 
Congress as required by section 810 of the Act.
    (b) The performance report will describe the activities undertaken 
and results achieved of each project funded. It will include the data 
gathered on the approved performance indicators. The report is due to 
the Bureau by no later than December 31 and must cover projects for the 
prior Federal fiscal year that have either been completed or been in 
operation for 12 months or more. The first performance report shall be 
due to the Bureau by December 31, 1986.
    (c) In order to help states and localities prepare these performance 
reports, the Bureau will provide data collection forms and instructions 
that will enable information to be gathered and reported in the most 
convenient manner possible. These forms and instructions will be 
developed in consultation with states and localities.



Sec. 33.71  Initial project report.

    States are required to provide to the Bureau of Justice Assistance 
within 30 days after the award of a subgrant, an initial project report 
which provides information on the subgrant recipient (name, address, 
contact person), the subgrant period, the type of award (new or 
renewal), the subgrant funding level, and the general target area 
(geographic area, population group) to be impacted. The Bureau of 
Justice Assistance will provide a form to assist the states in reporting 
this information.



                    Subpart I--Suspension of Funding



Sec. 33.80  Suspension of funding.

    The Bureau of Justice Assistance shall, after reasonable notice and 
opportunity for a hearing on the record, terminate or suspend funding 
for a state that implements programs or projects which fail to conform 
to the requirements or statutory objectives of the Act, or that fails to 
comply substantially with the Justice Assistance Act, these regulations 
or the terms and conditions of its grant award. Hearing and appeal 
procedures are set forth in Department of Justice regulations 28 CFR 
part 18.



PART 34--OJJDP COMPETITION AND PEER REVIEW PROCEDURES--Table of Contents




                         Subpart A--Competition

Sec.
34.1  Purpose and applicability.
34.2  Exceptions to applicability.
34.3  Selection criteria.
34.4  Additional competitive application requirements and procedures.

                         Subpart B--Peer Review

34.100  Purpose and applicability.
34.101  Exceptions to applicability.
34.102  Peer review procedures.
34.103  Definition.
34.104  Use of peer review.
34.105  Peer review methods.
34.106  Number of peer reviewers.
34.107  Use of Department of Justice staff.
34.108  Selection of reviewers.
34.109  Qualifications of peer reviewers.
34.110  Management of peer reviews.
34.111  Compensation.

            Subpart C--Emergency Expedited Review [Reserved]

    Authority: Juvenile Justice and Delinquency Prevention Act of 1974, 
as amended, (42 U.S.C. 5601 et seq.).

    Source: 55 FR 39234, Sept. 25, 1990, unless otherwise noted.



                         Subpart A--Competition



Sec. 34.1  Purpose and applicability.

    (a) This subpart of the regulation implements section 262(d)(1) (A) 
and (B) of the Juvenile Justice and Delinquency Prevention Act of 1974, 
as amended (42

[[Page 449]]

U.S.C. 5601 et seq.). This provision requires that project applications, 
selected for categorical assistance awards under part C--National 
Programs shall be selected through a competitive process established by 
rule by the Administrator, OJJDP. The statute specifies that this 
process must include announcement in the Federal Register of the 
availability of funds for assistance programs, the general criteria 
applicable to the selection of applications for assistance, and a 
description of the procedures applicable to the submission and review of 
assistance applications.
    (b) This subpart of the regulation applies to all grant, cooperative 
agreement, and other assistance awards selected by the Administrator, 
OJJDP, or the Administrator's designee, under part C--National Programs, 
of the Juvenile Justice and Delinquency Prevention Act of 1974, as 
amended, except as provided in the exceptions to applicability set forth 
below.



Sec. 34.2  Exceptions to applicability.

    The following are assistance and procurement contract award 
situations that OJJDP considers to be outside the scope of the section 
262(d)(1) competition requirement:
    (a) Assistance awards to initially fund or continue projects if the 
Administrator has made a written determination that the proposed program 
is not within the scope of any program announcement expected to be 
issued, is otherwise eligible for an award, and the proposed project is 
of such outstanding merit, as determined through peer review under 
subpart B of this part, that an assistance award without competition is 
justified (section 262(d)(1)(B)(i));
    (b) Assistance awards to initially fund or continue training 
services to be funded under part C, section 244, if the Administrator 
has made a written determination that the applicant is uniquely 
qualified to provide proposed training services and other qualified 
sources are not capable of providing such services (section 
262(d)(1)(B)(ii));
    (c) Assistance awards of funds transferred to OJJDP by another 
Federal agency to augment authorized juvenile justice programs, 
projects, or purposes;
    (d) Funds transferred to other Federal agencies by OJJDP for program 
purposes as authorized by law;
    (e) Procurement contract awards which are subject to applicable 
Federal laws and regulations governing the procurement of goods and 
services for the benefit and use of the government;
    (f) Assistance awards from the 5% ``set aside'' of Special Emphasis 
funds under section 261(e); and
    (g) Assistance awards under section 241(f).



Sec. 34.3  Selection criteria.

    (a) All individual project applications will, at a minimum, be 
subject to review based on the extent to which they meet the following 
general selection criteria:
    (1) The problem to be addressed by the project is clearly stated;
    (2) The objectives of the proposed project are clearly defined;
    (3) The project design is sound and contains program elements 
directly linked to the achievement of project objectives;
    (4) The project management structure is adequate to the successful 
conduct of the project;
    (5) Organizational capability is demonstrated at a level sufficient 
to successfully support the project; and
    (6) Budgeted costs are reasonable, allowable and cost effective for 
the activities proposed to be undertaken.
    (b) The general selection criteria set forth under paragraph (a) of 
this section, may be supplemented for each announced competitive program 
by program-specific selection criteria for the particular part C 
program. Such announcements may also modify the general selection 
criteria to provide greater specificity or otherwise improve their 
applicability to a given program. The relative weight (point value) for 
each selection criterion will be specified in the program announcement.



Sec. 34.4  Additional competitive application requirements and procedures.

    (a) Applications for grants. Any applicant eligible for assistance 
may submit on or before such submission deadline date or dates as the 
Administrator may establish in program announcements,

[[Page 450]]

an application containing such pertinent information and in accordance 
with the forms and instructions as prescribed therein and any additional 
forms and instructions as may be specified by the Administrator. Such 
application shall be executed by the applicant or an official or 
representative of the applicant duly authorized to make such application 
and to assume on behalf of the applicant the obligations imposed by law, 
applicable regulations, and any additional terms and conditions of the 
assistance award. The Administrator may require any applicant eligible 
for assistance under this subpart to submit a preliminary proposal for 
review and approval prior to the acceptance of an application.
    (b) Cooperative arrangements. (1) When specified in program 
announcements, eligible parties may enter into cooperative arrangements 
with other eligible parties, including those in another State, and 
submit joint applications for assistance.
    (2) A joint application made by two or more applicants for 
assistance may have separate budgets corresponding to the programs, 
services and activities performed by each of the joint applicants or may 
have a combined budget. If joint applications present separate budgets, 
the Administrator may make separate awards, or may award a single 
assistance award authorizing separate amounts for each of the joint 
applicants.
    (c) Evaluation of applications submitted under part C of the Act. 
All applications filed in accordance with Sec. 34.1 of this subpart for 
assistance with part C--National Programs funds shall be evaluated by 
the Administrator through OJJDP and other DOJ personnel (internal 
review) and by such experts or consultants required for this purpose 
that the Administrator determines are specially qualified in the 
particular part C program area covered by the announced program (peer 
review). Supplementary application review procedures, in addition to 
internal review and peer review, may be used for each competitive part C 
program announcement. The program announcement shall clearly state the 
application review procedures (peer review and other) to be used for 
each competitive part C program announcement.
    (d) Applicant's performance on prior award. When the applicant has 
previously received an award from OJJDP or another Federal agency, the 
applicant's noncompliance with requirements applicable to such prior 
award as reflected in past written evaluation reports and memoranda on 
performance, and the completeness of required submissions, may be 
considered by the Administrator. In any case where the Administrator 
proposes to deny assistance based upon the applicant's noncompliance 
with requirements applicable to a prior award, the Administrator shall 
do so only after affording the applicant reasonable notice and an 
opportunity to rebut the proposed basis for denial of assistance.
    (e) Applicant's fiscal integrity. Applicants must meet OJP standard 
of fiscal integrity (see OJP M 7100.1C, par. 24 and OJP HB 4500.2B, par. 
48 a and b).
    (f) Disposition of applications. On the basis of competition and 
applicable review procedures completed pursuant to this regulation, the 
Administrator will either:
    (1) Approve the application for funding, in whole or in part, for 
such amount of funds, and subject to such conditions as the 
Administrator deems necessary or desirable for the completion of the 
approved project;
    (2) Determine that the application is of acceptable quality for 
funding, in that it meets minimum criteria, but that the application 
must be disapproved for funding because it did not rank sufficiently 
high in relation to other applications approved for funding to qualify 
for an award based on the level of funding allocated to the program; or
    (3) Reject the application for failure to meet the applicable 
selection criteria at a sufficiently high level to justify an award of 
funds, or for other reason which the Administrator deems compelling, as 
provided in the documentation of the funding decision.
    (g) Notification of disposition. The Administrator will notify the 
applicant in writing of the disposition of the application. A signed 
Grant/Cooperative

[[Page 451]]

Agreement form will be issued to notify the applicant of an approved 
project application.
    (h) Effective date of approved grant. Federal financial assistance 
is normally available only with respect to obligations incurred 
subsequent to the effective date of an approved assistance project. The 
effective date of the project will be set forth in the Grant/Cooperative 
Agreement form. Recipients may be reimbursed for costs resulting from 
obligations incurred before the effective date of the assistance award, 
if such costs are authorized by the Administrator in the notification of 
assistance award or subsequently in writing, and otherwise would be 
allowable as costs of the assistance award under applicable guidelines, 
regulations, and award terms and conditions.



                         Subpart B--Peer Review



Sec. 34.100  Purpose and applicability.

    (a) This subpart of the regulation implements section 262(d)(2) of 
the Juvenile Justice and Delinquency Prevention Act of 1974, as amended. 
This provision requires that projects funded as new or continuation 
programs selected for categorical assistance awards under part C--
National Programs shall be reviewed before selection and thereafter as 
appropriate through a formal peer review process. Such process must 
utilize experts (other than officials and employees of the Department of 
Justice) in fields related to the technical and/or subject matter of the 
proposed program.
    (b) This subpart of the regulation applies to all applications for 
grants, cooperative agreements, and other assistance awards selected by 
the Administrator, OJJDP, for funding under part C--National Programs 
that are being considered for competitive and noncompetitive (including 
continuation) awards to begin new project periods, except as provided in 
the exceptions to applicability set forth below.



Sec. 34.101  Exceptions to applicability.

    The assistance and procurement contract situations specified in 
Sec. 34.2 (c), (d), (e), (f), and (g) of subpart A of this part are 
considered by OJJDP to be outside the scope of the section 262(d) peer 
review requirement as set forth in this subpart.



Sec. 34.102  Peer review procedures.

    The OJJDP peer review process is contained in an OJJDP ``Peer Review 
Guideline,'' developed in consultation with the Directors and other 
appropriate officials of the National Science Foundation and the 
National Institute of Mental Health. In addition to specifying 
substantive and procedural matters related to the peer review process, 
the ``Guideline'' addresses such issues as standards of conduct, 
conflict of interest, compensation of peer reviewers, etc. The 
``Guideline'' describes a process that evolves in accordance with 
experience and opportunities to effect improvements. The peer review 
process for all part C--National Programs assistance awards subject to 
this regulation will be conducted in a manner consistent with this 
subpart as implemented in the ``Peer Review Guideline''.



Sec. 34.103  Definition.

    Peer review means the technical and programmatic evaluation by a 
group of experts (other than officers and employees of the Department of 
Justice) qualified by training and experience to give expert advice, 
based on selection criteria established under subpart A of this part, in 
a program announcement, or as established by the Administrator, on the 
technical and programmatic merit of assistance.



Sec. 34.104  Use of peer review.

    (a) Peer review for competitive and noncompetitive applications. (1) 
For competitive applications, each program announcement will indicate 
the program specific peer review procedures and selection criteria to be 
followed in peer review for that program. In the case of competitive 
programs for which a large number of applications is expected, 
preapplications (concept papers) may be required. Preapplications will 
be reviewed by qualified OJJDP staff to eliminate those pre-applications 
which fail to meet minimum program requirements, as specified in a 
program announcement, or clearly lack sufficient merit to qualify as 
potential candidates for funding consideration. The

[[Page 452]]

Administrator may subject both pre-applications and formal applications 
to the peer review process.
    (2) For noncompetitive applications, the general selection criteria 
set forth under subpart A of this part may be supplemented by program 
specific selection criteria for the particular part C program. 
Applicants for noncompetitive continuation awards will be fully informed 
of any additional specific criteria in writing.
    (b) When formal applications are required in response to a program 
announcement, an initial review will be conducted by qualified OJJDP 
staff, in order to eliminate from peer review consideration applications 
which do not meet minimum program requirements. Such requirements will 
be specified in the program announcement. Applications determined to be 
qualified and eligible for further consideration will then be considered 
under the peer review process.
    (c) Ratings will be in the form of numerical scores assigned by 
individual peer reviewers as illustrated in the OJJDP ``Peer Review 
Guideline.'' The results of peer review under a competitive program will 
be a relative aggregate ranking of applications in the form of ``Summary 
Ratings.'' The results of peer review for a noncompetitive new or 
continuation project will be in the form of numerical scores based on 
criteria established by the Administrator.
    (d) Peer review recommendations, in conjunction with the results of 
internal review and any necessary supplementary review, will assist the 
Administrator's consideration of competitive, noncompetitive, 
applications and selection of applications for funding.
    (e) Peer review recommendations are advisory only and are binding on 
the Administrator only as provided by section 262(d)(B)(i) for 
noncompetitive assistance awards to programs determined through peer 
review not to be of such outstanding merit that an award without 
competition is justified. In such case, the determination of whether to 
issue a competitive program announcement will be subject to the exercise 
of the Administrator's discretion.



Sec. 34.105  Peer review methods.

    (a) For both competitive and noncompetitive applications, peer 
review will normally consist of written comments provided in response to 
the general selection criteria established under subpart A of this part 
and any program specific selection criteria identified in the program 
announcement or otherwise established by the Administrator, together 
with the assignment of numerical values. Peer review may be conducted at 
meetings with peer reviewers held under OJJDP oversight, through mail 
reviews, or a combination of both. When advisable, site visits may also 
be employed. The method of peer review anticipated for each announced 
competitive program, including the evaluation criteria to be used by 
peer reviewers, will be specified in each program announcement.
    (b) When peer review is conducted through meetings, peer review 
panelists will be gathered together for instruction by OJJDP, including 
review of the OJJDP ``Peer Review Guideline''. OJJDP will oversee the 
conduct of individual and group review sessions, as appropriate. When 
time or other factors preclude the convening of a peer review panel, 
mail reviews will be used. For competitive programs, mail reviews will 
be used only where the Administrator makes a written determination of 
necessity.



Sec. 34.106  Number of peer reviewers.

    The number of peer reviewers will vary by program (as affected by 
the volume of applications anticipated or received). OJJDP will select a 
minimum of three peer reviewers (qualified individuals who are not 
officers or employees of the Department of Justice) for each program or 
project review in order to ensure a diversity of backgrounds and 
perspectives. In no case will fewer than three reviews be made of each 
individual application.



Sec. 34.107  Use of Department of Justice staff.

    OJJDP will use qualified OJJDP and other DOJ staff as internal 
reviewers. Internal reviewers determine applicant compliance with basic 
program and

[[Page 453]]

statutory requirements, review the results of peer review, and provide 
overall program evaluation and recommendations to the Administrator.



Sec. 34.108  Selection of reviewers.

    The Program Manager, through the Director of the OJJDP program 
division with responsibility for a particular program or project will 
propose a selection of peer reviewers from an extensive and varied pool 
of juvenile justice and delinquency prevention experts for approval by 
the Administrator. The selection process for peer reviewers is detailed 
in the OJJDP ``Peer Review Guideline''.



Sec. 34.109  Qualifications of peer reviewers.

    The general reviewer qualification criteria to be used in the 
selection of peer reviewers are:

    (a) Generalized knowledge of juvenile justice or related fields; and
    (b) Specialized knowledge in areas or disciplines addressed by the 
applications to be reviewed under a particular program.
    (c) Must not have a conflict of interest (see OJP M7100.1C, par. 
94).

Additional details concerning peer reviewer qualifications are provided 
in the OJJDP ``Peer Review Guideline''.



Sec. 34.110  Management of peer reviews.

    A technical support contractor may assist in managing the peer 
review process.



Sec. 34.111  Compensation.

    All peer reviewers will be eligible to be paid according to 
applicable regulations and policies concerning consulting fees and 
reimbursement for expenses. Detailed information is provided in the 
OJJDP ``Peer Review Guideline''.



            Subpart C--Emergency Expedited Review [Reserved]



PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES--Table of Contents




                           Subpart A--General

Sec.
35.101  Purpose.
35.102  Application.
35.103  Relationship to other laws.
35.104  Definitions.
35.105  Self-evaluation.
35.106  Notice.
35.107  Designation of responsible employee and adoption of grievance 
          procedures.
35.108--35.129  [Reserved]

                     Subpart B--General Requirements

35.130  General prohibitions against discrimination.
35.131  Illegal use of drugs.
35.132  Smoking.
35.133  Maintenance of accessible features.
35.134  Retaliation or coercion.
35.135  Personal devices and services.
35.136--35.139  [Reserved]

                          Subpart C--Employment

35.140  Employment discrimination prohibited.
35.141--35.148  [Reserved]

                    Subpart D--Program Accessibility

35.149  Discrimination prohibited.
35.150  Existing facilities.
35.151  New construction and alterations.
35.152--35.159  [Reserved]

                        Subpart E--Communications

35.160  General.
35.161  Telecommunication devices for the deaf (TDD's).
35.162  Telephone emergency services.
35.163  Information and signage.
35.164  Duties.
35.165--35.169  [Reserved]

                    Subpart F--Compliance Procedures

35.170  Complaints.
35.171  Acceptance of complaints.
35.172  Resolution of complaints.
35.173  Voluntary compliance agreements.
35.174  Referral.
35.175  Attorney's fees.
35.176  Alternative means of dispute resolution.

[[Page 454]]

35.177  Effect of unavailability of technical assistance.
35.178  State immunity.
35.179--35.189  [Reserved]

                     Subpart G--Designated Agencies

35.190  Designated agencies.
35.191--35.999  [Reserved]

Appendix A to Part 35--Preamble to Regulation on Nondiscrimination on 
          the Basis of Disability in State and Local Government Services 
          (Published July 26, 1991)

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; Title II, Pub. L. 101-
336 (42 U.S.C. 12134).

    Source: Order No. 1512-91, 56 FR 35716, July 26, 1991, unless 
otherwise noted.



                           Subpart A--General



Sec. 35.101  Purpose.

    The purpose of this part is to effectuate subtitle A of title II of 
the Americans with Disabilities Act of 1990 (42 U.S.C. 12131), which 
prohibits discrimination on the basis of disability by public entities.



Sec. 35.102  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all services, programs, and activities provided or made 
available by public entities.
    (b) To the extent that public transportation services, programs, and 
activities of public entities are covered by subtitle B of title II of 
the ADA (42 U.S.C. 12141), they are not subject to the requirements of 
this part.



Sec. 35.103  Relationship to other laws.

    (a) Rule of interpretation. Except as otherwise provided in this 
part, this part shall not be construed to apply a lesser standard than 
the standards applied under title V of the Rehabilitation Act of 1973 
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant 
to that title.
    (b) Other laws. This part does not invalidate or limit the remedies, 
rights, and procedures of any other Federal laws, or State or local laws 
(including State common law) that provide greater or equal protection 
for the rights of individuals with disabilities or individuals 
associated with them.



Sec. 35.104  Definitions.

    For purposes of this part, the term--
    Act means the Americans with Disabilities Act (Pub. L. 101-336, 104 
Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids and services includes--
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone handset amplifiers, assistive listening 
devices, assistive listening systems, telephones compatible with hearing 
aids, closed caption decoders, open and closed captioning, 
telecommunications devices for deaf persons (TDD's), videotext displays, 
or other effective methods of making aurally delivered materials 
available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the public entity's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of this part. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Designated agency means the Federal agency designated under subpart 
G of this part to oversee compliance activities under this part for 
particular components of State and local governments.

[[Page 455]]

    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1)(i) The phrase physical or mental impairment means--
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, hemic and lymphatic, skin, and endocrine;
    (B) Any mental or psychological disorder such as mental retardation, 
organic brain syndrome, emotional or mental illness, and specific 
learning disabilities.
    (ii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions as 
orthopedic, visual, speech and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism.
    (iii) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a public entity as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a public entity as having such an 
impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, rolling stock or other conveyances, roads, walks, 
passageways, parking lots, or other real or personal property, including 
the site where the building, property, structure, or equipment is 
located.
    Historic preservation programs means programs conducted by a public 
entity that have preservation of historic properties as a primary 
purpose.
    Historic Properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under State or local law.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term illegal use of drugs does not 
include the use of a drug taken under supervision by a licensed health 
care professional, or other uses authorized by the Controlled Substances 
Act or other provisions of Federal law.
    Individual with a disability means a person who has a disability. 
The term individual with a disability does not include an individual who 
is currently engaging in the illegal use of drugs, when the public 
entity acts on the basis of such use.
    Public entity means--

[[Page 456]]

    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act).
    Qualified individual with a disability means an individual with a 
disability who, with or without reasonable modifications to rules, 
policies, or practices, the removal of architectural, communication, or 
transportation barriers, or the provision of auxiliary aids and 
services, meets the essential eligibility requirements for the receipt 
of services or the participation in programs or activities provided by a 
public entity.
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively and 
expressively, using any necessary specialized vocabulary.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
    State means each of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin 
Islands, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands.



Sec. 35.105  Self-evaluation.

    (a) A public entity shall, within one year of the effective date of 
this part, evaluate its current services, policies, and practices, and 
the effects thereof, that do not or may not meet the requirements of 
this part and, to the extent modification of any such services, 
policies, and practices is required, the public entity shall proceed to 
make the necessary modifications.
    (b) A public entity shall provide an opportunity to interested 
persons, including individuals with disabilities or organizations 
representing individuals with disabilities, to participate in the self-
evaluation process by submitting comments.
    (c) A public entity that employs 50 or more persons shall, for at 
least three years following completion of the self-evaluation, maintain 
on file and make available for public inspection:
    (1) A list of the interested persons consulted;
    (2) A description of areas examined and any problems identified; and
    (3) A description of any modifications made.
    (d) If a public entity has already complied with the self-evaluation 
requirement of a regulation implementing section 504 of the 
Rehabilitation Act of 1973, then the requirements of this section shall 
apply only to those policies and practices that were not included in the 
previous self-evaluation.

(Approved by the Office of Management and Budget under control number 
1190-0006)

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.106  Notice.

    A public entity shall make available to applicants, participants, 
beneficiaries, and other interested persons information regarding the 
provisions of this part and its applicability to the services, programs, 
or activities of the public entity, and make such information available 
to them in such manner as the head of the entity finds necessary to 
apprise such persons of the protections against discrimination assured 
them by the Act and this part.



Sec. 35.107  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. A public entity that 
employs 50 or more persons shall designate at least one employee to 
coordinate its efforts to comply with and carry out its responsibilities 
under this part, including any investigation of any complaint 
communicated to it alleging its noncompliance with this part or alleging 
any actions that would be prohibited by this part. The public entity 
shall make available to all interested individuals the name, office 
address, and telephone number of the employee or employees designated 
pursuant to this paragraph.
    (b) Complaint procedure. A public entity that employs 50 or more 
persons

[[Page 457]]

shall adopt and publish grievance procedures providing for prompt and 
equitable resolution of complaints alleging any action that would be 
prohibited by this part.
Secs. 35.108--35.129  [Reserved]



                     Subpart B--General Requirements



Sec. 35.130  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in or be denied the benefits 
of the services, programs, or activities of a public entity, or be 
subjected to discrimination by any public entity.
    (b)(1) A public entity, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangements, on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aids, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aids, benefits, 
or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified individual 
with a disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the public 
entity's program;
    (vi) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards;
    (vii) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity enjoyed 
by others receiving the aid, benefit, or service.
    (2) A public entity may not deny a qualified individual with a 
disability the opportunity to participate in services, programs, or 
activities that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (3) A public entity may not, directly or through contractual or 
other arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified individuals with 
disabilities to discrimination on the basis of disability;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the public entity's 
program with respect to individuals with disabilities; or
    (iii) That perpetuate the discrimination of another public entity if 
both public entities are subject to common administrative control or are 
agencies of the same State.
    (4) A public entity may not, in determining the site or location of 
a facility, make selections--
    (i) That have the effect of excluding individuals with disabilities 
from, denying them the benefits of, or otherwise subjecting them to 
discrimination; or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the service, program, 
or activity with respect to individuals with disabilities.
    (5) A public entity, in the selection of procurement contractors, 
may not use criteria that subject qualified individuals with 
disabilities to discrimination on the basis of disability.
    (6) A public entity may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability,

[[Page 458]]

nor may a public entity establish requirements for the programs or 
activities of licensees or certified entities that subject qualified 
individuals with disabilities to discrimination on the basis of 
disability. The programs or activities of entities that are licensed or 
certified by a public entity are not, themselves, covered by this part.
    (7) A public entity shall make reasonable modifications in policies, 
practices, or procedures when the modifications are necessary to avoid 
discrimination on the basis of disability, unless the public entity can 
demonstrate that making the modifications would fundamentally alter the 
nature of the service, program, or activity.
    (8) A public entity shall not impose or apply eligibility criteria 
that screen out or tend to screen out an individual with a disability or 
any class of individuals with disabilities from fully and equally 
enjoying any service, program, or activity, unless such criteria can be 
shown to be necessary for the provision of the service, program, or 
activity being offered.
    (c) Nothing in this part prohibits a public entity from providing 
benefits, services, or advantages to individuals with disabilities, or 
to a particular class of individuals with disabilities beyond those 
required by this part.
    (d) A public entity shall administer services, programs, and 
activities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities.
    (e)(1) Nothing in this part shall be construed to require an 
individual with a disability to accept an accommodation, aid, service, 
opportunity, or benefit provided under the ADA or this part which such 
individual chooses not to accept.
    (2) Nothing in the Act or this part authorizes the representative or 
guardian of an individual with a disability to decline food, water, 
medical treatment, or medical services for that individual.
    (f) A public entity may not place a surcharge on a particular 
individual with a disability or any group of individuals with 
disabilities to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by the Act or this part.
    (g) A public entity shall not exclude or otherwise deny equal 
services, programs, or activities to an individual or entity because of 
the known disability of an individual with whom the individual or entity 
is known to have a relationship or association.



Sec. 35.131  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) A public entity shall not discriminate on the basis of illegal 
use of drugs against an individual who is not engaging in current 
illegal use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and drug rehabilitation services. (1) A public entity 
shall not deny health services, or services provided in connection with 
drug rehabilitation, to an individual on the basis of that individual's 
current illegal use of drugs, if the individual is otherwise entitled to 
such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (c) Drug testing. (1) This part does not prohibit a public entity 
from adopting or administering reasonable policies or procedures, 
including but not limited to drug testing, designed to ensure that an 
individual who formerly engaged in the illegal use of drugs is not now 
engaging in current illegal use of drugs.
    (2) Nothing in paragraph (c) of this section shall be construed to 
encourage, prohibit, restrict, or authorize the conduct of testing for 
the illegal use of drugs.

[[Page 459]]



Sec. 35.132  Smoking.

    This part does not preclude the prohibition of, or the imposition of 
restrictions on, smoking in transportation covered by this part.



Sec. 35.133  Maintenance of accessible features.

    (a) A public entity shall maintain in operable working condition 
those features of facilities and equipment that are required to be 
readily accessible to and usable by persons with disabilities by the Act 
or this part.
    (b) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.134  Retaliation or coercion.

    (a) No private or public entity shall discriminate against any 
individual because that individual has opposed any act or practice made 
unlawful by this part, or because that individual made a charge, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing under the Act or this part.
    (b) No private or public entity shall coerce, intimidate, threaten, 
or interfere with any individual in the exercise or enjoyment of, or on 
account of his or her having exercised or enjoyed, or on account of his 
or her having aided or encouraged any other individual in the exercise 
or enjoyment of, any right granted or protected by the Act or this part.



Sec. 35.135  Personal devices and services.

    This part does not require a public entity to provide to individuals 
with disabilities personal devices, such as wheelchairs; individually 
prescribed devices, such as prescription eyeglasses or hearing aids; 
readers for personal use or study; or services of a personal nature 
including assistance in eating, toileting, or dressing.
Secs. 35.136--35.139  [Reserved]



                          Subpart C--Employment



Sec. 35.140  Employment discrimination prohibited.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be subjected to discrimination in employment under any 
service, program, or activity conducted by a public entity.
    (b)(1) For purposes of this part, the requirements of title I of the 
Act, as established by the regulations of the Equal Employment 
Opportunity Commission in 29 CFR part 1630, apply to employment in any 
service, program, or activity conducted by a public entity if that 
public entity is also subject to the jurisdiction of title I.
    (2) For the purposes of this part, the requirements of section 504 
of the Rehabilitation Act of 1973, as established by the regulations of 
the Department of Justice in 28 CFR part 41, as those requirements 
pertain to employment, apply to employment in any service, program, or 
activity conducted by a public entity if that public entity is not also 
subject to the jurisdiction of title I.
Secs. 35.141--35.148  [Reserved]



                    Subpart D--Program Accessibility



Sec. 35.149  Discrimination prohibited.

    Except as otherwise provided in Sec. 35.150, no qualified individual 
with a disability shall, because a public entity's facilities are 
inaccessible to or unusable by individuals with disabilities, be 
excluded from participation in, or be denied the benefits of the 
services, programs, or activities of a public entity, or be subjected to 
discrimination by any public entity.



Sec. 35.150  Existing facilities.

    (a) General. A public entity shall operate each service, program, or 
activity so that the service, program, or activity, when viewed in its 
entirety, is

[[Page 460]]

readily accessible to and usable by individuals with disabilities. This 
paragraph does not--
    (1) Necessarily require a public entity to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2) Require a public entity to take any action that would threaten 
or destroy the historic significance of an historic property; or
    (3) Require a public entity to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
service, program, or activity or in undue financial and administrative 
burdens. In those circumstances where personnel of the public entity 
believe that the proposed action would fundamentally alter the service, 
program, or activity or would result in undue financial and 
administrative burdens, a public entity has the burden of proving that 
compliance with Sec. 35.150(a) of this part would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the head of a public entity or his 
or her designee after considering all resources available for use in the 
funding and operation of the service, program, or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, a public entity shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that individuals with disabilities receive the benefits or 
services provided by the public entity.
    (b) Methods--(1) General. A public entity may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock or other 
conveyances, or any other methods that result in making its services, 
programs, or activities readily accessible to and usable by individuals 
with disabilities. A public entity is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. A public entity, in making 
alterations to existing buildings, shall meet the accessibility 
requirements of Sec. 35.151. In choosing among available methods for 
meeting the requirements of this section, a public entity shall give 
priority to those methods that offer services, programs, and activities 
to qualified individuals with disabilities in the most integrated 
setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 35.150(a) in historic preservation programs, a public entity shall 
give priority to methods that provide physical access to individuals 
with disabilities. In cases where a physical alteration to an historic 
property is not required because of paragraph (a)(2) or (a)(3) of this 
section, alternative methods of achieving program accessibility 
include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. Where structural changes in 
facilities are undertaken to comply with the obligations established 
under this section, such changes shall be made within three years of 
January 26, 1992, but in any event as expeditiously as possible.
    (d) Transition plan. (1) In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, a public 
entity that employs 50 or more persons shall develop, within six months 
of January 26, 1992, a transition plan setting forth the steps necessary 
to complete such changes. A public entity shall provide an opportunity 
to interested persons, including individuals with disabilities or 
organizations representing individuals with

[[Page 461]]

disabilities, to participate in the development of the transition plan 
by submitting comments. A copy of the transition plan shall be made 
available for public inspection.
    (2) If a public entity has responsibility or authority over streets, 
roads, or walkways, its transition plan shall include a schedule for 
providing curb ramps or other sloped areas where pedestrian walks cross 
curbs, giving priority to walkways serving entities covered by the Act, 
including State and local government offices and facilities, 
transportation, places of public accommodation, and employers, followed 
by walkways serving other areas.
    (3) The plan shall, at a minimum--
    (i) Identify physical obstacles in the public entity's facilities 
that limit the accessibility of its programs or activities to 
individuals with disabilities;
    (ii) Describe in detail the methods that will be used to make the 
facilities accessible;
    (iii) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (iv) Indicate the official responsible for implementation of the 
plan.
    (4) If a public entity has already complied with the transition plan 
requirement of a Federal agency regulation implementing section 504 of 
the Rehabilitation Act of 1973, then the requirements of this paragraph 
(d) shall apply only to those policies and practices that were not 
included in the previous transition plan.

(Approved by the Office of Management and Budget under control number 
1190-0004)

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.151  New construction and alterations.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a public entity shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by individuals with 
disabilities, if the construction was commenced after January 26, 1992.
    (b) Alteration. Each facility or part of a facility altered by, on 
behalf of, or for the use of a public entity in a manner that affects or 
could affect the usability of the facility or part of the facility 
shall, to the maximum extent feasible, be altered in such manner that 
the altered portion of the facility is readily accessible to and usable 
by individuals with disabilities, if the alteration was commenced after 
January 26, 1992.
    (c) Accessibility standards. Design, construction, or alteration of 
facilities in conformance with the Uniform Federal Accessibility 
Standards (UFAS) (appendix A to 41 CFR part 101-19.6) or with the 
Americans with Disabilities Act Accessibility Guidelines for Buildings 
and Facilities (ADAAG) (appendix A to 28 CFR part 36) shall be deemed to 
comply with the requirements of this section with respect to those 
facilities, except that the elevator exemption contained at section 
4.1.3(5) and section 4.1.6(1)(k) of ADAAG shall not apply. Departures 
from particular requirements of either standard by the use of other 
methods shall be permitted when it is clearly evident that equivalent 
access to the facility or part of the facility is thereby provided.
    (d) Alterations: Historic properties. (1) Alterations to historic 
properties shall comply, to the maximum extent feasible, with section 
4.1.7 of UFAS or section 4.1.7 of ADAAG.
    (2) If it is not feasible to provide physical access to an historic 
property in a manner that will not threaten or destroy the historic 
significance of the building or facility, alternative methods of access 
shall be provided pursuant to the requirements of Sec. 35.150.
    (e) Curb ramps. (1) Newly constructed or altered streets, roads, and 
highways must contain curb ramps or other sloped areas at any 
intersection having curbs or other barriers to entry from a street level 
pedestrian walkway.
    (2) Newly constructed or altered street level pedestrian walkways 
must contain curb ramps or other sloped areas at intersections to 
streets, roads, or highways.

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]

[[Page 462]]

Secs. 35.152--35.159  [Reserved]



                        Subpart E--Communications



Sec. 35.160  General.

    (a) A public entity shall take appropriate steps to ensure that 
communications with applicants, participants, and members of the public 
with disabilities are as effective as communications with others.
    (b)(1) A public entity shall furnish appropriate auxiliary aids and 
services where necessary to afford an individual with a disability an 
equal opportunity to participate in, and enjoy the benefits of, a 
service, program, or activity conducted by a public entity.
    (2) In determining what type of auxiliary aid and service is 
necessary, a public entity shall give primary consideration to the 
requests of the individual with disabilities.



Sec. 35.161  Telecommunication devices for the deaf (TDD's).

    Where a public entity communicates by telephone with applicants and 
beneficiaries, TDD's or equally effective telecommunication systems 
shall be used to communicate with individuals with impaired hearing or 
speech.



Sec. 35.162  Telephone emergency services.

    Telephone emergency services, including 911 services, shall provide 
direct access to individuals who use TDD's and computer modems.



Sec. 35.163  Information and signage.

    (a) A public entity shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (b) A public entity shall provide signage at all inaccessible 
entrances to each of its facilities, directing users to an accessible 
entrance or to a location at which they can obtain information about 
accessible facilities. The international symbol for accessibility shall 
be used at each accessible entrance of a facility.



Sec. 35.164  Duties.

    This subpart does not require a public entity to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a service, program, or activity or in undue financial and 
administrative burdens. In those circumstances where personnel of the 
public entity believe that the proposed action would fundamentally alter 
the service, program, or activity or would result in undue financial and 
administrative burdens, a public entity has the burden of proving that 
compliance with this subpart would result in such alteration or burdens. 
The decision that compliance would result in such alteration or burdens 
must be made by the head of the public entity or his or her designee 
after considering all resources available for use in the funding and 
operation of the service, program, or activity and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action required to comply with this subpart would result in such an 
alteration or such burdens, a public entity shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that, to the maximum extent possible, individuals 
with disabilities receive the benefits or services provided by the 
public entity.
Secs. 35.165--35.169  [Reserved]



                    Subpart F--Compliance Procedures



Sec. 35.170  Complaints.

    (a) Who may file. An individual who believes that he or she or a 
specific class of individuals has been subjected to discrimination on 
the basis of disability by a public entity may, by himself or herself or 
by an authorized representative, file a complaint under this part.
    (b) Time for filing. A complaint must be filed not later than 180 
days from the date of the alleged discrimination, unless the time for 
filing is extended by the designated agency for good cause shown. A 
complaint is deemed to be filed under this section on the date

[[Page 463]]

it is first filed with any Federal agency.
    (c) Where to file. An individual may file a complaint with any 
agency that he or she believes to be the appropriate agency designated 
under subpart G of this part, or with any agency that provides funding 
to the public entity that is the subject of the complaint, or with the 
Department of Justice for referral as provided in Sec. 35.171(a)(2).



Sec. 35.171  Acceptance of complaints.

    (a) Receipt of complaints. (1)(i) Any Federal agency that receives a 
complaint of discrimination on the basis of disability by a public 
entity shall promptly review the complaint to determine whether it has 
jurisdiction over the complaint under section 504.
    (ii) If the agency does not have section 504 jurisdiction, it shall 
promptly determine whether it is the designated agency under subpart G 
of this part responsible for complaints filed against that public 
entity.
    (2)(i) If an agency other than the Department of Justice determines 
that it does not have section 504 jurisdiction and is not the designated 
agency, it shall promptly refer the complaint, and notify the 
complainant that it is referring the complaint to the Department of 
Justice.
    (ii) When the Department of Justice receives a complaint for which 
it does not have jurisdiction under section 504 and is not the 
designated agency, it shall refer the complaint to an agency that does 
have jurisdiction under section 504 or to the appropriate agency 
designated in subpart G of this part or, in the case of an employment 
complaint that is also subject to title I of the Act, to the Equal 
Employment Opportunity Commission.
    (3)(i) If the agency that receives a complaint has section 504 
jurisdiction, it shall process the complaint according to its procedures 
for enforcing section 504.
    (ii) If the agency that receives a complaint does not have section 
504 jurisdiction, but is the designated agency, it shall process the 
complaint according to the procedures established by this subpart.
    (b) Employment complaints. (1) If a complaint alleges employment 
discrimination subject to title I of the Act, and the agency has section 
504 jurisdiction, the agency shall follow the procedures issued by the 
Department of Justice and the Equal Employment Opportunity Commission 
under section 107(b) of the Act.
    (2) If a complaint alleges employment discrimination subject to 
title I of the Act, and the designated agency does not have section 504 
jurisdiction, the agency shall refer the complaint to the Equal 
Employment Opportunity Commission for processing under title I of the 
Act.
    (3) Complaints alleging employment discrimination subject to this 
part, but not to title I of the Act shall be processed in accordance 
with the procedures established by this subpart.
    (c) Complete complaints. (1) A designated agency shall accept all 
complete complaints under this section and shall promptly notify the 
complainant and the public entity of the receipt and acceptance of the 
complaint.
    (2) If the designated agency receives a complaint that is not 
complete, it shall notify the complainant and specify the additional 
information that is needed to make the complaint a complete complaint. 
If the complainant fails to complete the complaint, the designated 
agency shall close the complaint without prejudice.



Sec. 35.172  Resolution of complaints.

    (a) The designated agency shall investigate each complete complaint, 
attempt informal resolution, and, if resolution is not achieved, issue 
to the complainant and the public entity a Letter of Findings that shall 
include--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) Notice of the rights available under paragraph (b) of this 
section.
    (b) If the designated agency finds noncompliance, the procedures in 
Secs. 35.173 and 35.174 shall be followed. At any time, the complainant 
may file a private suit pursuant to section 203 of the Act, whether or 
not the designated agency finds a violation.

[[Page 464]]



Sec. 35.173  Voluntary compliance agreements.

    (a) When the designated agency issues a noncompliance Letter of 
Findings, the designated agency shall--
    (1) Notify the Assistant Attorney General by forwarding a copy of 
the Letter of Findings to the Assistant Attorney General; and
    (2) Initiate negotiations with the public entity to secure 
compliance by voluntary means.
    (b) Where the designated agency is able to secure voluntary 
compliance, the voluntary compliance agreement shall--
    (1) Be in writing and signed by the parties;
    (2) Address each cited violation;
    (3) Specify the corrective or remedial action to be taken, within a 
stated period of time, to come into compliance;
    (4) Provide assurance that discrimination will not recur; and
    (5) Provide for enforcement by the Attorney General.



Sec. 35.174  Referral.

    If the public entity declines to enter into voluntary compliance 
negotiations or if negotiations are unsuccessful, the designated agency 
shall refer the matter to the Attorney General with a recommendation for 
appropriate action.



Sec. 35.175  Attorney's fees.

    In any action or administrative proceeding commenced pursuant to the 
Act or this part, the court or agency, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney's 
fee, including litigation expenses, and costs, and the United States 
shall be liable for the foregoing the same as a private individual.



Sec. 35.176  Alternative means of dispute resolution.

    Where appropriate and to the extent authorized by law, the use of 
alternative means of dispute resolution, including settlement 
negotiations, conciliation, facilitation, mediation, factfinding, 
minitrials, and arbitration, is encouraged to resolve disputes arising 
under the Act and this part.



Sec. 35.177  Effect of unavailability of technical assistance.

    A public entity shall not be excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance, including any failure in the development or dissemination of 
any technical assistance manual authorized by the Act.



Sec. 35.178  State immunity.

    A State shall not be immune under the eleventh amendment to the 
Constitution of the United States from an action in Federal or State 
court of competent jurisdiction for a violation of this Act. In any 
action against a State for a violation of the requirements of this Act, 
remedies (including remedies both at law and in equity) are available 
for such a violation to the same extent as such remedies are available 
for such a violation in an action against any public or private entity 
other than a State.
Secs. 35.179--35.189  [Reserved]



                     Subpart G--Designated Agencies



Sec. 35.190  Designated agencies.

    (a) The Assistant Attorney General shall coordinate the compliance 
activities of Federal agencies with respect to State and local 
government components, and shall provide policy guidance and 
interpretations to designated agencies to ensure the consistent and 
effective implementation of the requirements of this part.
    (b) The Federal agencies listed in paragraph (b) (1) through (8) of 
this section shall have responsibility for the implementation of subpart 
F of this part for components of State and local governments that 
exercise responsibilities, regulate, or administer services, programs, 
or activities in the following functional areas.
    (1) Department of Agriculture: All programs, services, and 
regulatory activities relating to farming and the raising of livestock, 
including extension services.
    (2) Department of Education: All programs, services, and regulatory 
activities relating to the operation of elementary and secondary 
education systems and institutions, institutions of

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higher education and vocational education (other than schools of 
medicine, dentistry, nursing, and other health-related schools), and 
libraries.
    (3) Department of Health and Human Services: All programs, services, 
and regulatory activities relating to the provision of health care and 
social services, including schools of medicine, dentistry, nursing, and 
other health-related schools, the operation of health care and social 
service providers and institutions, including ``grass-roots'' and 
community services organizations and programs, and preschool and daycare 
programs.
    (4) Department of Housing and Urban Development: All programs, 
services, and regulatory activities relating to state and local public 
housing, and housing assistance and referral.
    (5) Department of Interior: All programs, services, and regulatory 
activities relating to lands and natural resources, including parks and 
recreation, water and waste management, environmental protection, 
energy, historic and cultural preservation, and museums.
    (6) Department of Justice: All programs, services, and regulatory 
activities relating to law enforcement, public safety, and the 
administration of justice, including courts and correctional 
institutions; commerce and industry, including general economic 
development, banking and finance, consumer protection, insurance, and 
small business; planning, development, and regulation (unless assigned 
to other designated agencies); state and local government support 
services (e.g., audit, personnel, comptroller, administrative services); 
all other government functions not assigned to other designated 
agencies.
    (7) Department of Labor: All programs, services, and regulatory 
activities relating to labor and the work force.
    (8) Department of Transportation: All programs, services, and 
regulatory activities relating to transportation, including highways, 
public transportation, traffic management (non-law enforcement), 
automobile licensing and inspection, and driver licensing.
    (c) Responsibility for the implementation of subpart F of this part 
for components of State or local governments that exercise 
responsibilities, regulate, or administer services, programs, or 
activities relating to functions not assigned to specific designated 
agencies by paragraph (b) of this section may be assigned to other 
specific agencies by the Department of Justice.
    (d) If two or more agencies have apparent responsibility over a 
complaint, the Assistant Attorney General shall determine which one of 
the agencies shall be the designated agency for purposes of that 
complaint.
Secs. 35.191--35.999  [Reserved]

 Appendix A to Part 35--Preamble to Regulation on Nondiscrimination on 
     the Basis of Disability in State and Local Government Services 
                        (Published July 26, 1991)

    Note: For the convenience of the reader, this appendix contains the 
text of the preamble to the final regulation on nondiscrimination on the 
basis of disability in State and local government services beginning at 
the heading ``Section-by-Section Analysis'' and ending before ``List of 
Subjects in 28 CFR Part 35'' (56 FR 35696, July 26, 1991).

                       Section-by-Section Analysis

                           Subpart A--General

                         Section 35.101  Purpose

    Section 35.101 states the purpose of the rule, which is to 
effectuate subtitle A of title II of the Americans with Disabilities Act 
of 1990 (the Act), which prohibits discrimination on the basis of 
disability by public entities. This part does not, however, apply to 
matters within the scope of the authority of the Secretary of 
Transportation under subtitle B of title II of the Act.

                       Section 35.102  Application

    This provision specifies that, except as provided in paragraph (b), 
the regulation applies to all services, programs, and activities 
provided or made available by public entities, as that term is defined 
in Sec. 35.104. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 
794), which prohibits discrimination on the basis of handicap in 
federally assisted programs and activities, already covers those 
programs and activities of public entities that receive Federal 
financial assistance. Title II of the ADA extends this prohibition of 
discrimination to include all services, programs, and activities 
provided or made available by State and local governments or any

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of their instrumentalities or agencies, regardless of the receipt of 
Federal financial assistance. Except as provided in Sec. 35.l34, this 
part does not apply to private entities.
    The scope of title II's coverage of public entities is comparable to 
the coverage of Federal Executive agencies under the 1978 amendment to 
section 504, which extended section 504's application to all programs 
and activities ``conducted by'' Federal Executive agencies, in that 
title II applies to anything a public entity does. Title II coverage, 
however, is not limited to ``Executive'' agencies, but includes 
activities of the legislative and judicial branches of State and local 
governments. All governmental activities of public entities are covered, 
even if they are carried out by contractors. For example, a State is 
obligated by title II to ensure that the services, programs, and 
activities of a State park inn operated under contract by a private 
entity are in compliance with title II's requirements. The private 
entity operating the inn would also be subject to the obligations of 
public accommodations under title III of the Act and the Department's 
title III regulations at 28 CFR part 36.
    Aside from employment, which is also covered by title I of the Act, 
there are two major categories of programs or activities covered by this 
regulation: those involving general public contact as part of ongoing 
operations of the entity and those directly administered by the entities 
for program beneficiaries and participants. Activities in the first 
category include communication with the public (telephone contacts, 
office walk-ins, or interviews) and the public's use of the entity's 
facilities. Activities in the second category include programs that 
provide State or local government services or benefits.
    Paragraph (b) of Sec. 35.102 explains that to the extent that the 
public transportation services, programs, and activities of public 
entities are covered by subtitle B of title II of the Act, they are 
subject to the regulation of the Department of Transportation (DOT) at 
49 CFR part 37, and are not covered by this part. The Department of 
Transportation's ADA regulation establishes specific requirements for 
construction of transportation facilities and acquisition of vehicles. 
Matters not covered by subtitle B, such as the provision of auxiliary 
aids, are covered by this rule. For example, activities that are covered 
by the Department of Transportation's regulation implementing subtitle B 
are not required to be included in the self-evaluation required by 
Sec. 35.105. In addition, activities not specifically addressed by DOT's 
ADA regulation may be covered by DOT's regulation implementing section 
504 for its federally assisted programs and activities at 49 CFR part 
27. Like other programs of public entities that are also recipients of 
Federal financial assistance, those programs would be covered by both 
the section 504 regulation and this part. Although airports operated by 
public entities are not subject to DOT's ADA regulation, they are 
subject to subpart A of title II and to this rule.
    Some commenters asked for clarification about the responsibilities 
of public school systems under section 504 and the ADA with respect to 
programs, services, and activities that are not covered by the 
Individuals with Disabilities Education Act (IDEA), including, for 
example, programs open to parents or to the public, graduation 
ceremonies, parent-teacher organization meetings, plays and other events 
open to the public, and adult education classes. Public school systems 
must comply with the ADA in all of their services, programs, or 
activities, including those that are open to parents or to the public. 
For instance, public school systems must provide program accessibility 
to parents and guardians with disabilities to these programs, 
activities, or services, and appropriate auxiliary aids and services 
whenever necessary to ensure effective communication, as long as the 
provision of the auxiliary aids results neither in an undue burden or in 
a fundamental alteration of the program.

               Section 35.103  Relationship to Other Laws

    Section 35.103 is derived from sections 501 (a) and (b) of the ADA. 
Paragraph (a) of this section provides that, except as otherwise 
specifically provided by this part, title II of the ADA is not intended 
to apply lesser standards than are required under title V of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 790-94), or the 
regulations implementing that title. The standards of title V of the 
Rehabilitation Act apply for purposes of the ADA to the extent that the 
ADA has not explicitly adopted a different standard than title V. 
Because title II of the ADA essentially extends the antidiscrimination 
prohibition embodied in section 504 to all actions of State and local 
governments, the standards adopted in this part are generally the same 
as those required under section 504 for federally assisted programs. 
Title II, however, also incorporates those provisions of titles I and 
III of the ADA that are not inconsistent with the regulations 
implementing section 504. Judiciary Committee report, H.R. Rep. No. 485, 
101st Cong., 2d Sess., pt. 3, at 51 (1990) (hereinafter ``Judiciary 
report'') ; Education and Labor Committee report, H.R. Rep. No. 485, 
101st Cong., 2d Sess., pt. 2, at 84 (1990) (hereinafter ``Education and 
Labor report''). Therefore, this part also includes appropriate 
provisions derived from the regulations implementing those titles. The 
inclusion of specific language in this part, however, should not be 
interpreted as an indication that a requirement is not included under a 
regulation implementing section 504.

[[Page 467]]

    Paragraph (b) makes clear that Congress did not intend to displace 
any of the rights or remedies provided by other Federal laws (including 
section 504) or other State laws (including State common law) that 
provide greater or equal protection to individuals with disabilities. As 
discussed above, the standards adopted by title II of the ADA for State 
and local government services are generally the same as those required 
under section 504 for federally assisted programs and activities. 
Subpart F of the regulation establishes compliance procedures for 
processing complaints covered by both this part and section 504.
    With respect to State law, a plaintiff may choose to pursue claims 
under a State law that does not confer greater substantive rights, or 
even confers fewer substantive rights, if the alleged violation is 
protected under the alternative law and the remedies are greater. For 
example, a person with a physical disability could seek damages under a 
State law that allows compensatory and punitive damages for 
discrimination on the basis of physical disability, but not on the basis 
of mental disability. In that situation, the State law would provide 
narrower coverage, by excluding mental disabilities, but broader 
remedies, and an individual covered by both laws could choose to bring 
an action under both laws. Moreover, State tort claims confer greater 
remedies and are not preempted by the ADA. A plaintiff may join a State 
tort claim to a case brought under the ADA. In such a case, the 
plaintiff must, of course, prove all the elements of the State tort 
claim in order to prevail under that cause of action.

                       Section 35.104  Definitions

    ``Act.'' The word ``Act'' is used in this part to refer to the 
Americans with Disabilities Act of 1990, Public Law 101-336, which is 
also referred to as the ``ADA.''
    ``Assistant Attorney General.'' The term ``Assistant Attorney 
General'' refers to the Assistant Attorney General of the Civil Rights 
Division of the Department of Justice.
    ``Auxiliary aids and services.'' Auxiliary aids and services include 
a wide range of services and devices for ensuring effective 
communication. The proposed definition in Sec. 35.104 provided a list of 
examples of auxiliary aids and services that were taken from the 
definition of auxiliary aids and services in section 3(1) of the ADA and 
were supplemented by examples from regulations implementing section 504 
in federally conducted programs (see 28 CFR 39.103).
    A substantial number of commenters suggested that additional 
examples be added to this list. The Department has added several items 
to this list but wishes to clarify that the list is not an all-inclusive 
or exhaustive catalogue of possible or available auxiliary aids or 
services. It is not possible to provide an exhaustive list, and an 
attempt to do so would omit the new devices that will become available 
with emerging technology.
    Subparagraph (1) lists several examples, which would be considered 
auxiliary aids and services to make aurally delivered materials 
available to individuals with hearing impairments. The Department has 
changed the phrase used in the proposed rules, ``orally delivered 
materials,'' to the statutory phrase, ``aurally delivered materials,'' 
to track section 3 of the ADA and to include non-verbal sounds and 
alarms, and computer generated speech.
    The Department has added videotext displays, transcription services, 
and closed and open captioning to the list of examples. Videotext 
displays have become an important means of accessing auditory 
communications through a public address system. Transcription services 
are used to relay aurally delivered material almost simultaneously in 
written form to persons who are deaf or hearing-impaired. This 
technology is often used at conferences, conventions, and hearings. 
While the proposed rule expressly included television decoder equipment 
as an auxiliary aid or service, it did not mention captioning itself. 
The final rule rectifies this omission by mentioning both closed and 
open captioning.
    Several persons and organizations requested that the Department 
replace the term ``telecommunications devices for deaf persons'' or 
``TDD's'' with the term ``text telephone.'' The Department has declined 
to do so. The Department is aware that the Architectural and 
Transportation Barriers Compliance Board (ATBCB) has used the phrase 
``text telephone'' in lieu of the statutory term ``TDD'' in its final 
accessibility guidelines. Title IV of the ADA, however, uses the term 
``Telecommunications Device for the Deaf'' and the Department believes 
it would be inappropriate to abandon this statutory term at this time.
    Several commenters urged the Department to include in the definition 
of ``auxiliary aids and services'' devices that are now available or 
that may become available with emerging technology. The Department 
declines to do so in the rule. The Department, however, emphasizes that, 
although the definition would include ``state of the art'' devices, 
public entities are not required to use the newest or most advanced 
technologies as long as the auxiliary aid or service that is selected 
affords effective communication.
    Subparagraph (2) lists examples of aids and services for making 
visually delivered materials accessible to persons with visual 
impairments. Many commenters proposed additional examples, such as 
signage or mapping, audio description services, secondary auditory 
programs, telebraillers, and reading machines. While the Department 
declines to

[[Page 468]]

add these items to the list, they are auxiliary aids and services and 
may be appropriate depending on the circumstances.
    Subparagraph (3) refers to acquisition or modification of equipment 
or devices. Several commenters suggested the addition of current 
technological innovations in microelectronics and computerized control 
systems (e.g., voice recognition systems, automatic dialing telephones, 
and infrared elevator and light control systems) to the list of 
auxiliary aids. The Department interprets auxiliary aids and services as 
those aids and services designed to provide effective communications, 
i.e., making aurally and visually delivered information available to 
persons with hearing, speech, and vision impairments. Methods of making 
services, programs, or activities accessible to, or usable by, 
individuals with mobility or manual dexterity impairments are addressed 
by other sections of this part, including the provision for 
modifications in policies, practices, or procedures (Sec. 35.130 
(b)(7)).
    Paragraph (b)(4) deals with other similar services and actions. 
Several commenters asked for clarification that ``similar services and 
actions'' include retrieving items from shelves, assistance in reaching 
a marginally accessible seat, pushing a barrier aside in order to 
provide an accessible route, or assistance in removing a sweater or 
coat. While retrieving an item from a shelf might be an ``auxiliary aid 
or service'' for a blind person who could not locate the item without 
assistance, it might be a method of providing program access for a 
person using a wheelchair who could not reach the shelf, or a reasonable 
modification to a self-service policy for an individual who lacked the 
ability to grasp the item. As explained above, auxiliary aids and 
services are those aids and services required to provide effective 
communications. Other forms of assistance are more appropriately 
addressed by other provisions of the final rule.
    ``Complete complaint.'' ``Complete complaint'' is defined to include 
all the information necessary to enable the Federal agency designated 
under subpart G as responsible for investigation of a complaint to 
initiate its investigation.
    ``Current illegal use of drugs.'' The phrase ``current illegal use 
of drugs'' is used in Sec. 35.131. Its meaning is discussed in the 
preamble for that section.
    ``Designated agency.'' The term ``designated agency'' is used to 
refer to the Federal agency designated under subpart G of this rule as 
responsible for carrying out the administrative enforcement 
responsibilities established by subpart F of the rule.
    ``Disability.'' The definition of the term ``disability'' is the 
same as the definition in the title III regulation codified at 28 CFR 
part 36. It is comparable to the definition of the term ``individual 
with handicaps'' in section 7(8) of the Rehabilitation Act and section 
802(h) of the Fair Housing Act. The Education and Labor Committee report 
makes clear that the analysis of the term ``individual with handicaps'' 
by the Department of Health, Education, and Welfare (HEW) in its 
regulations implementing section 504 (42 FR 22685 (May 4, 1977)) and the 
analysis by the Department of Housing and Urban Development in its 
regulation implementing the Fair Housing Amendments Act of 1988 (54 FR 
3232 (Jan. 23, 1989)) should also apply fully to the term ``disability'' 
(Education and Labor report at 50).
    The use of the term ``disability'' instead of ``handicap'' and the 
term ``individual with a disability'' instead of ``individual with 
handicaps'' represents an effort by Congress to make use of up-to-date, 
currently accepted terminology. As with racial and ethnic epithets, the 
choice of terms to apply to a person with a disability is overlaid with 
stereotypes, patronizing attitudes, and other emotional connotations. 
Many individuals with disabilities, and organizations representing such 
individuals, object to the use of such terms as ``handicapped person'' 
or ``the handicapped.'' In other recent legislation, Congress also 
recognized this shift in terminology, e.g., by changing the name of the 
National Council on the Handicapped to the National Council on 
Disability (Pub. L. 100-630).
    In enacting the Americans with Disabilities Act, Congress concluded 
that it was important for the current legislation to use terminology 
most in line with the sensibilities of most Americans with disabilities. 
No change in definition or substance is intended nor should one be 
attributed to this change in phraseology.
    The term ``disability'' means, with respect to an individual--
    (A) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (B) A record of such an impairment; or
    (C) Being regarded as having such an impairment. If an individual 
meets any one of these three tests, he or she is considered to be an 
individual with a disability for purposes of coverage under the 
Americans with Disabilities Act.
    Congress adopted this same basic definition of ``disability,'' first 
used in the Rehabilitation Act of 1973 and in the Fair Housing 
Amendments Act of 1988, for a number of reasons. First, it has worked 
well since it was adopted in 1974. Second, it would not be possible to 
guarantee comprehensiveness by providing a list of specific 
disabilities, especially because new disorders may be recognized in the 
future, as they have since the definition was first established in 1974.

[[Page 469]]

Test A--A physical or mental impairment that substantially limits one or 
          more of the major life activities of such individual

    Physical or mental impairment. Under the first test, an individual 
must have a physical or mental impairment. As explained in paragraph 
(1)(i) of the definition, ``impairment'' means any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: neurological; 
musculoskeletal; special sense organs (which would include speech organs 
that are not respiratory such as vocal cords, soft palate, tongue, 
etc.); respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine. It also means any mental or psychological disorder, such as 
mental retardation, organic brain syndrome, emotional or mental illness, 
and specific learning disabilities. This list closely tracks the one 
used in the regulations for section 504 of the Rehabilitation Act of 
1973 (see, e.g., 45 CFR 84.3(j)(2)(i)).
    Many commenters asked that ``traumatic brain injury'' be added to 
the list in paragraph (1)(i). Traumatic brain injury is already included 
because it is a physiological condition affecting one of the listed body 
systems, i.e., ``neurological.'' Therefore, it was unnecessary to add 
the term to the regulation, which only provides representative examples 
of physiological disorders.
    It is not possible to include a list of all the specific conditions, 
contagious and noncontagious diseases, or infections that would 
constitute physical or mental impairments because of the difficulty of 
ensuring the comprehensiveness of such a list, particularly in light of 
the fact that other conditions or disorders may be identified in the 
future. However, the list of examples in paragraph (1)(ii) of the 
definition includes: orthopedic, visual, speech and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
specific learning disabilities, HIV disease (symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase 
``symptomatic or asymptomatic'' was inserted in the final rule after 
``HIV disease'' in response to commenters who suggested the 
clarification was necessary.
    The examples of ``physical or mental impairments'' in paragraph 
(1)(ii) are the same as those contained in many section 504 regulations, 
except for the addition of the phrase ``contagious and noncontagious'' 
to describe the types of diseases and conditions included, and the 
addition of ``HIV disease (symptomatic or asymptomatic)'' and 
``tuberculosis'' to the list of examples. These additions are based on 
the committee reports, caselaw, and official legal opinions interpreting 
section 504. In School Board of Nassau County v. Arline, 480 U.S. 273 
(1987), a case involving an individual with tuberculosis, the Supreme 
Court held that people with contagious diseases are entitled to the 
protections afforded by section 504. Following the Arline decision, this 
Department's Office of Legal Counsel issued a legal opinion that 
concluded that symptomatic HIV disease is an impairment that 
substantially limits a major life activity; therefore it has been 
included in the definition of disability under this part. The opinion 
also concluded that asymptomatic HIV disease is an impairment that 
substantially limits a major life activity, either because of its actual 
effect on the individual with HIV disease or because the reactions of 
other people to individuals with HIV disease cause such individuals to 
be treated as though they are disabled. See Memorandum from Douglas W. 
Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, 
Department of Justice, to Arthur B. Culvahouse, Jr., Counsel to the 
President (Sept. 27, 1988), reprinted in Hearings on S. 933, the 
Americans with Disabilities Act, Before the Subcomm. on the Handicapped 
of the Senate Comm. on Labor and Human Resources, 101st. Cong., 1st 
Sess. 346 (1989).
    Paragraph (1)(iii) states that the phrase ``physical or mental 
impairment'' does not include homosexuality or bisexuality. These 
conditions were never considered impairments under other Federal 
disability laws. Section 511(a) of the statute makes clear that they are 
likewise not to be considered impairments under the Americans with 
Disabilities Act.
    Physical or mental impairment does not include simple physical 
characteristics, such as blue eyes or black hair. Nor does it include 
environmental, cultural, economic, or other disadvantages, such as 
having a prison record, or being poor. Nor is age a disability. 
Similarly, the definition does not include common personality traits 
such as poor judgment or a quick temper where these are not symptoms of 
a mental or psychological disorder. However, a person who has these 
characteristics and also has a physical or mental impairment may be 
considered as having a disability for purposes of the Americans with 
Disabilities Act based on the impairment.
    Substantial Limitation of a Major Life Activity. Under Test A, the 
impairment must be one that ``substantially limits a major life 
activity.'' Major life activities include such things as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    For example, a person who is paraplegic is substantially limited in 
the major life activity of walking, a person who is blind is 
substantially limited in the major life activity

[[Page 470]]

of seeing, and a person who is mentally retarded is substantially 
limited in the major life activity of learning. A person with traumatic 
brain injury is substantially limited in the major life activities of 
caring for one's self, learning, and working because of memory deficit, 
confusion, contextual difficulties, and inability to reason 
appropriately.
    A person is considered an individual with a disability for purposes 
of Test A, the first prong of the definition, when the individual's 
important life activities are restricted as to the conditions, manner, 
or duration under which they can be performed in comparison to most 
people. A person with a minor, trivial impairment, such as a simple 
infected finger, is not impaired in a major life activity. A person who 
can walk for 10 miles continuously is not substantially limited in 
walking merely because, on the eleventh mile, he or she begins to 
experience pain, because most people would not be able to walk eleven 
miles without experiencing some discomfort.
    The Department received many comments on the proposed rule's 
inclusion of the word ``temporary'' in the definition of ``disability.'' 
The preamble indicated that impairments are not necessarily excluded 
from the definition of ``disability'' simply because they are temporary, 
but that the duration, or expected duration, of an impairment is one 
factor that may properly be considered in determining whether the 
impairment substantially limits a major life activity. The preamble 
recognized, however, that temporary impairments, such as a broken leg, 
are not commonly regarded as disabilities, and only in rare 
circumstances would the degree of the limitation and its expected 
duration be substantial. Nevertheless, many commenters objected to 
inclusion of the word ``temporary'' both because it is not in the 
statute and because it is not contained in the definition of 
``disability'' set forth in the title I regulations of the Equal 
Employment Opportunity Commission (EEOC). The word ``temporary'' has 
been deleted from the final rule to conform with the statutory language.
    The question of whether a temporary impairment is a disability must 
be resolved on a case-by-case basis, taking into consideration both the 
duration (or expected duration) of the impairment and the extent to 
which it actually limits a major life activity of the affected 
individual.
    The question of whether a person has a disability should be assessed 
without regard to the availability of mitigating measures, such as 
reasonable modification or auxiliary aids and services. For example, a 
person with hearing loss is substantially limited in the major life 
activity of hearing, even though the loss may be improved through the 
use of a hearing aid. Likewise, persons with impairments, such as 
epilepsy or diabetes, that substantially limit a major life activity, 
are covered under the first prong of the definition of disability, even 
if the effects of the impairment are controlled by medication.
    Many commenters asked that environmental illness (also known as 
multiple chemical sensitivity) as well as allergy to cigarette smoke be 
recognized as disabilities. The Department, however, declines to state 
categorically that these types of allergies or sensitivities are 
disabilities, because the determination as to whether an impairment is a 
disability depends on whether, given the particular circumstances at 
issue, the impairment substantially limits one or more major life 
activities (or has a history of, or is regarded as having such an 
effect).
    Sometimes respiratory or neurological functioning is so severely 
affected that an individual will satisfy the requirements to be 
considered disabled under the regulation. Such an individual would be 
entitled to all of the protections afforded by the Act and this part. In 
other cases, individuals may be sensitive to environmental elements or 
to smoke but their sensitivity will not rise to the level needed to 
constitute a disability. For example, their major life activity of 
breathing may be somewhat, but not substantially, impaired. In such 
circumstances, the individuals are not disabled and are not entitled to 
the protections of the statute despite their sensitivity to 
environmental agents.
    In sum, the determination as to whether allergies to cigarette 
smoke, or allergies or sensitivities characterized by the commenters as 
environmental illness are disabilities covered by the regulation must be 
made using the same case-by-case analysis that is applied to all other 
physical or mental impairments. Moreover, the addition of specific 
regulatory provisions relating to environmental illness in the final 
rule would be inappropriate at this time pending future consideration of 
the issue by the Architectural and Transportation Barriers Compliance 
Board, the Environmental Protection Agency, and the Occupational Safety 
and Health Administration of the Department of Labor.

                 Test B--A record of such an impairment

    This test is intended to cover those who have a record of an 
impairment. As explained in paragraph (3) of the rule's definition of 
disability, this includes a person who has a history of an impairment 
that substantially limited a major life activity, such as someone who 
has recovered from an impairment. It also includes persons who have been 
misclassified as having an impairment.
    This provision is included in the definition in part to protect 
individuals who have recovered from a physical or mental impairment that 
previously substantially limited them in a major life activity. 
Discrimination on the basis of such a past impairment is prohibited. 
Frequently occurring examples

[[Page 471]]

of the first group (those who have a history of an impairment) are 
persons with histories of mental or emotional illness, heart disease, or 
cancer; examples of the second group (those who have been misclassified 
as having an impairment) are persons who have been misclassified as 
having mental retardation or mental illness.

           Test C--Being regarded as having such an impairment

    This test, as contained in paragraph (4) of the definition, is 
intended to cover persons who are treated by a public entity as having a 
physical or mental impairment that substantially limits a major life 
activity. It applies when a person is treated as if he or she has an 
impairment that substantially limits a major life activity, regardless 
of whether that person has an impairment.
    The Americans with Disabilities Act uses the same ``regarded as'' 
test set forth in the regulations implementing section 504 of the 
Rehabilitation Act. See, e.g., 28 CFR 42.540(k)(2)(iv), which provides:

    (iv) ``Is regarded as having an impairment'' means (A) Has a 
physical or mental impairment that does not substantially limit major 
life activities but that is treated by a recipient as constituting such 
a limitation; (B) Has a physical or mental impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or (C) Has none of the impairments defined in 
paragraph (k)(2)(i) of this section but is treated by a recipient as 
having such an impairment.

    The perception of the covered entity is a key element of this test. 
A person who perceives himself or herself to have an impairment, but 
does not have an impairment, and is not treated as if he or she has an 
impairment, is not protected under this test.
    A person would be covered under this test if a public entity refused 
to serve the person because it perceived that the person had an 
impairment that limited his or her enjoyment of the goods or services 
being offered.
    For example, persons with severe burns often encounter 
discrimination in community activities, resulting in substantial 
limitation of major life activities. These persons would be covered 
under this test based on the attitudes of others towards the impairment, 
even if they did not view themselves as ``impaired.''
    The rationale for this third test, as used in the Rehabilitation Act 
of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 
(1987). The Court noted that although an individual may have an 
impairment that does not in fact substantially limit a major life 
activity, the reaction of others may prove just as disabling. ``Such an 
impairment might not diminish a person's physical or mental 
capabilities, but could nevertheless substantially limit that person's 
ability to work as a result of the negative reactions of others to the 
impairment.'' Id. at 283. The Court concluded that, by including this 
test in the Rehabilitation Act's definition, ``Congress acknowledged 
that society's accumulated myths and fears about disability and diseases 
are as handicapping as are the physical limitations that flow from 
actual impairment.'' Id. at 284.
    Thus, a person who is denied services or benefits by a public entity 
because of myths, fears, and stereotypes associated with disabilities 
would be covered under this third test whether or not the person's 
physical or mental condition would be considered a disability under the 
first or second test in the definition.
    If a person is refused admittance on the basis of an actual or 
perceived physical or mental condition, and the public entity can 
articulate no legitimate reason for the refusal (such as failure to meet 
eligibility criteria), a perceived concern about admitting persons with 
disabilities could be inferred and the individual would qualify for 
coverage under the ``regarded as'' test. A person who is covered because 
of being regarded as having an impairment is not required to show that 
the public entity's perception is inaccurate (e.g., that he will be 
accepted by others) in order to receive benefits from the public entity.
    Paragraph (5) of the definition lists certain conditions that are 
not included within the definition of ``disability.'' The excluded 
conditions are: Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, other sexual behavior disorders, compulsive gambling, 
kleptomania, pyromania, and psychoactive substance use disorders 
resulting from current illegal use of drugs. Unlike homosexuality and 
bisexuality, which are not considered impairments under either section 
504 or the Americans with Disabilities Act (see the definition of 
``disability,'' paragraph (1)(iv)), the conditions listed in paragraph 
(5), except for transvestism, are not necessarily excluded as 
impairments under section 504. (Transvestism was excluded from the 
definition of disability for section 504 by the Fair Housing Amendments 
Act of 1988, Pub. L. 100-430, section 6(b)).
    ``Drug.'' The definition of the term ``drug'' is taken from section 
510(d)(2) of the ADA.
    ``Facility.'' ``Facility'' means all or any portion of buildings, 
structures, sites, complexes, equipment, rolling stock or other 
conveyances, roads, walks, passageways, parking lots, or other real or 
personal property, including the site where the building, property, 
structure, or equipment is located. It includes both indoor and outdoor 
areas where human-constructed improvements,

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structures, equipment, or property have been added to the natural 
environment.
    Commenters raised questions about the applicability of this part to 
activities operated in mobile facilities, such as bookmobiles or mobile 
health screening units. Such activities would be covered by the 
requirement for program accessibility in Sec. 35.150, and would be 
included in the definition of ``facility'' as ``other real or personal 
property,'' although standards for new construction and alterations of 
such facilities are not yet included in the accessibility standards 
adopted by Sec. 35.151. Sections 35.150 and 35.151 specifically address 
the obligations of public entities to ensure accessibility by providing 
curb ramps at pedestrian walkways.
    ``Historic preservation programs'' and ``Historic properties'' are 
defined in order to aid in the interpretation of Secs. 35.150 (a)(2) and 
(b)(2), which relate to accessibility of historic preservation programs, 
and Sec. 35.151(d), which relates to the alteration of historic 
properties.
    ``Illegal use of drugs.'' The definition of ``illegal use of drugs'' 
is taken from section 510(d)(1) of the Act and clarifies that the term 
includes the illegal use of one or more drugs.
    ``Individual with a disability'' means a person who has a disability 
but does not include an individual who is currently illegally using 
drugs, when the public entity acts on the basis of such use. The phrase 
``current illegal use of drugs'' is explained in Sec. 35.131.
    ``Public entity.'' The term ``public entity'' is defined in 
accordance with section 201(1) of the ADA as any State or local 
government; any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; or the 
National Railroad Passenger Corporation, and any commuter authority (as 
defined in section 103(8) of the Rail Passenger Service Act).
    ``Qualified individual with a disability.'' The definition of 
``qualified individual with a disability'' is taken from section 201(2) 
of the Act, which is derived from the definition of ``qualified 
handicapped person'' in the Department of Health and Human Services' 
regulation implementing section 504 (45 CFR Sec. 84.3(k)). It combines 
the definition at 45 CFR 84.3(k)(1) for employment (``a handicapped 
person who, with reasonable accommodation, can perform the essential 
functions of the job in question'') with the definition for other 
services at 45 CFR 84.3(k)(4) (``a handicapped person who meets the 
essential eligibility requirements for the receipt of such services'').
    Some commenters requested clarification of the term ``essential 
eligibility requirements.'' Because of the variety of situations in 
which an individual's qualifications will be at issue, it is not 
possible to include more specific criteria in the definition. The 
``essential eligibility requirements'' for participation in some 
activities covered under this part may be minimal. For example, most 
public entities provide information about their operations as a public 
service to anyone who requests it. In such situations, the only 
``eligibility requirement'' for receipt of such information would be the 
request for it. Where such information is provided by telephone, even 
the ability to use a voice telephone is not an ``essential eligibility 
requirement,'' because Sec. 35.161 requires a public entity to provide 
equally effective telecommunication systems for individuals with 
impaired hearing or speech.
    For other activities, identification of the ``essential eligibility 
requirements'' may be more complex. Where questions of safety are 
involved, the principles established in Sec. 36.208 of the Department's 
regulation implementing title III of the ADA, to be codified at 28 CFR, 
part 36, will be applicable. That section implements section 302(b)(3) 
of the Act, which provides that a public accommodation is not required 
to permit an individual to participate in or benefit from the goods, 
services, facilities, privileges, advantages and accommodations of the 
public accommodation, if that individual poses a direct threat to the 
health or safety of others.
    A ``direct threat'' is a significant risk to the health or safety of 
others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision of auxiliary aids or 
services. In School Board of Nassau County v. Arline, 480 U.S. 273 
(1987), the Supreme Court recognized that there is a need to balance the 
interests of people with disabilities against legitimate concerns for 
public safety. Although persons with disabilities are generally entitled 
to the protection of this part, a person who poses a significant risk to 
others will not be ``qualified,'' if reasonable modifications to the 
public entity's policies, practices, or procedures will not eliminate 
that risk.
    The determination that a person poses a direct threat to the health 
or safety of others may not be based on generalizations or stereotypes 
about the effects of a particular disability. It must be based on an 
individualized assessment, based on reasonable judgment that relies on 
current medical evidence or on the best available objective evidence, to 
determine: the nature, duration, and severity of the risk; the 
probability that the potential injury will actually occur; and whether 
reasonable modifications of policies, practices, or procedures will 
mitigate the risk. This is the test established by the Supreme Court in 
Arline. Such an inquiry is essential if the law is to achieve its goal 
of protecting disabled individuals from discrimination based on 
prejudice, stereotypes, or unfounded fear, while giving appropriate 
weight to legitimate concerns, such as the need to avoid exposing others 
to significant

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health and safety risks. Making this assessment will not usually require 
the services of a physician. Sources for medical knowledge include 
guidance from public health authorities, such as the U.S. Public Health 
Service, the Centers for Disease Control, and the National Institutes of 
Health, including the National Institute of Mental Health.
    ``Qualified interpreter.'' The Department received substantial 
comment regarding the lack of a definition of ``qualified interpreter.'' 
The proposed rule defined auxiliary aids and services to include the 
statutory term, ``qualified interpreters'' (Sec. 35.104), but did not 
define it. Section 35.160 requires the use of auxiliary aids including 
qualified interpreters and commenters stated that a lack of guidance on 
what the term means would create confusion among those trying to secure 
interpreting services and often result in less than effective 
communication.
    Many commenters were concerned that, without clear guidance on the 
issue of ``qualified'' interpreter, the rule would be interpreted to 
mean ``available, rather than qualified'' interpreters. Some claimed 
that few public entities would understand the difference between a 
qualified interpreter and a person who simply knows a few signs or how 
to fingerspell.
    In order to clarify what is meant by ``qualified interpreter'' the 
Department has added a definition of the term to the final rule. A 
qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively and 
expressively, using any necessary specialized vocabulary. This 
definition focuses on the actual ability of the interpreter in a 
particular interpreting context to facilitate effective communication 
between the public entity and the individual with disabilities.
    Public comment also revealed that public entities have at times 
asked persons who are deaf to provide family members or friends to 
interpret. In certain circumstances, notwithstanding that the family 
member of friend is able to interpret or is a certified interpreter, the 
family member or friend may not be qualified to render the necessary 
interpretation because of factors such as emotional or personal 
involvement or considerations of confidentiality that may adversely 
affect the ability to interpret``effectively, accurately, and 
impartially.''
    The definition of ``qualified interpreter'' in this rule does not 
invalidate or limit standards for interpreting services of any State or 
local law that are equal to or more stringent than those imposed by this 
definition. For instance, the definition would not supersede any 
requirement of State law for use of a certified interpreter in court 
proceedings.
    ``Section 504.'' The Department added a definition of ``section 
504'' because the term is used extensively in subpart F of this part.
    ``State.'' The definition of ``State'' is identical to the statutory 
definition in section 3(3) of the ADA.

                     Section 35.105  Self-evaluation

    Section 35.105 establishes a requirement, based on the section 504 
regulations for federally assisted and federally conducted programs, 
that a public entity evaluate its current policies and practices to 
identify and correct any that are not consistent with the requirements 
of this part. As noted in the discussion of Sec. 35.102, activities 
covered by the Department of Transportation's regulation implementing 
subtitle B of title II are not required to be included in the self-
evaluation required by this section.
    Experience has demonstrated the self-evaluation process to be a 
valuable means of establishing a working relationship with individuals 
with disabilities, which has promoted both effective and efficient 
implementation of section 504. The Department expects that it will 
likewise be useful to public entities newly covered by the ADA.
    All public entities are required to do a self-evaluation. However, 
only those that employ 50 or more persons are required to maintain the 
self-evaluation on file and make it available for public inspection for 
three years. The number 50 was derived from the Department of Justice's 
section 504 regulations for federally assisted programs, 28 CFR 
42.505(c). The Department received comments critical of this limitation, 
some suggesting the requirement apply to all public entities and others 
suggesting that the number be changed from 50 to 15. The final rule has 
not been changed. Although many regulations implementing section 504 for 
federally assisted programs do use 15 employees as the cut-off for this 
record-keeping requirement, the Department believes that it would be 
inappropriate to extend it to those smaller public entities covered by 
this regulation that do not receive Federal financial assistance. This 
approach has the benefit of minimizing paperwork burdens on small 
entities.
    Paragraph (d) provides that the self-evaluation required by this 
section shall apply only to programs not subject to section 504 or those 
policies and practices, such as those involving communications access, 
that have not already been included in a self-evaluation required under 
an existing regulation implementing section 504. Because most self-
evaluations were done from five to twelve years ago, however, the 
Department expects that a great many public entities will be reexamining 
all of their policies and programs. Programs and functions may have 
changed, and actions that were supposed to have been taken to comply 
with section 504 may not have been fully implemented or may no longer be 
effective. In addition, there have been statutory amendments to section 
504 which have changed the coverage of section

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504, particularly the Civil Rights Restoration Act of 1987, Public Law 
No. 100-259, 102 Stat. 28 (1988), which broadened the definition of a 
covered ``program or activity.''
    Several commenters suggested that the Department clarify public 
entities' liability during the one-year period for compliance with the 
self-evaluation requirement. The self-evaluation requirement does not 
stay the effective date of the statute nor of this part. Public entities 
are, therefore, not shielded from discrimination claims during that 
time.
    Other commenters suggested that the rule require that every self-
evaluation include an examination of training efforts to assure that 
individuals with disabilities are not subjected to discrimination 
because of insensitivity, particularly in the law enforcement area. 
Although the Department has not added such a specific requirement to the 
rule, it would be appropriate for public entities to evaluate training 
efforts because, in many cases, lack of training leads to discriminatory 
practices, even when the policies in place are nondiscriminatory.

                         Section 35.106  Notice

    Section 35.106 requires a public entity to disseminate sufficient 
information to applicants, participants, beneficiaries, and other 
interested persons to inform them of the rights and protections afforded 
by the ADA and this regulation. Methods of providing this information 
include, for example, the publication of information in handbooks, 
manuals, and pamphlets that are distributed to the public to describe a 
public entity's programs and activities; the display of informative 
posters in service centers and other public places; or the broadcast of 
information by television or radio. In providing the notice, a public 
entity must comply with the requirements for effective communication in 
Sec. 35.160. The preamble to that section gives guidance on how to 
effectively communicate with individuals with disabilities.

  Section 35.107  Designation of Responsible Employee and Adoption of 
                          Grievance Procedures

    Consistent with Sec. 35.105, self-evaluation, the final rule 
requires that public entities with 50 or more employees designate a 
responsible employee and adopt grievance procedures. Most of the 
commenters who suggested that the requirement that self-evaluation be 
maintained on file for three years not be limited to those employing 50 
or more persons made a similar suggestion concerning Sec. 35.107. 
Commenters recommended either that all public entities be subject to 
Sec. 35.107, or that ``50 or more persons'' be changed to ``15 or more 
persons.'' As explained in the discussion of Sec. 35.105, the Department 
has not adopted this suggestion.
    The requirement for designation of an employee responsible for 
coordination of efforts to carry out responsibilities under this part is 
derived from the HEW regulation implementing section 504 in federally 
assisted programs. The requirement for designation of a particular 
employee and dissemination of information about how to locate that 
employee helps to ensure that individuals dealing with large agencies 
are able to easily find a responsible person who is familiar with the 
requirements of the Act and this part and can communicate those 
requirements to other individuals in the agency who may be unaware of 
their responsibilities. This paragraph in no way limits a public 
entity's obligation to ensure that all of its employees comply with the 
requirements of this part, but it ensures that any failure by individual 
employees can be promptly corrected by the designated employee.
    Section 35.107(b) requires public entities with 50 or more employees 
to establish grievance procedures for resolving complaints of violations 
of this part. Similar requirements are found in the section 504 
regulations for federally assisted programs (see, e.g., 45 CFR 84.7(b)). 
The rule, like the regulations for federally assisted programs, provides 
for investigation and resolution of complaints by a Federal enforcement 
agency. It is the view of the Department that public entities subject to 
this part should be required to establish a mechanism for resolution of 
complaints at the local level without requiring the complainant to 
resort to the Federal complaint procedures established under subpart F. 
Complainants would not, however, be required to exhaust the public 
entity's grievance procedures before filing a complaint under subpart F. 
Delay in filing the complaint at the Federal level caused by pursuit of 
the remedies available under the grievance procedure would generally be 
considered good cause for extending the time allowed for filing under 
Sec. 35.170(b).

                     Subpart B--General Requirements

       Section 35.130  General Prohibitions Against Discrimination

    The general prohibitions against discrimination in the rule are 
generally based on the prohibitions in existing regulations implementing 
section 504 and, therefore, are already familiar to State and local 
entities covered by section 504. In addition, Sec. 35.130 includes a 
number of provisions derived from title III of the Act that are implicit 
to a certain degree in the requirements of regulations implementing 
section 504.
    Several commenters suggested that this part should include the 
section of the proposed title III regulation that implemented section 
309 of the Act, which requires that courses and examinations related to 
applications, licensing, certification, or

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credentialing be provided in an accessible place and manner or that 
alternative accessible arrangements be made. The Department has not 
adopted this suggestion. The requirements of this part, including the 
general prohibitions of discrimination in this section, the program 
access requirements of subpart D, and the communications requirements of 
subpart E, apply to courses and examinations provided by public 
entities. The Department considers these requirements to be sufficient 
to ensure that courses and examinations administered by public entities 
meet the requirements of section 309. For example, a public entity 
offering an examination must ensure that modifications of policies, 
practices, or procedures or the provision of auxiliary aids and services 
furnish the individual with a disability an equal opportunity to 
demonstrate his or her knowledge or ability. Also, any examination 
specially designed for individuals with disabilities must be offered as 
often and in as timely a manner as are other examinations. Further, 
under this part, courses and examinations must be offered in the most 
integrated setting appropriate. The analysis of Sec. 35.130(d) is 
relevant to this determination.
    A number of commenters asked that the regulation be amended to 
require training of law enforcement personnel to recognize the 
difference between criminal activity and the effects of seizures or 
other disabilities such as mental retardation, cerebral palsy, traumatic 
brain injury, mental illness, or deafness. Several disabled commenters 
gave personal statements about the abuse they had received at the hands 
of law enforcement personnel. Two organizations that commented cited the 
Judiciary report at 50 as authority to require law enforcement training.
    The Department has not added such a training requirement to the 
regulation. Discriminatory arrests and brutal treatment are already 
unlawful police activities. The general regulatory obligation to modify 
policies, practices, or procedures requires law enforcement to make 
changes in policies that result in discriminatory arrests or abuse of 
individuals with disabilities. Under this section law enforcement 
personnel would be required to make appropriate efforts to determine 
whether perceived strange or disruptive behavior or unconsciousness is 
the result of a disability. The Department notes that a number of States 
have attempted to address the problem of arresting disabled persons for 
noncriminal conduct resulting from their disability through adoption of 
the Uniform Duties to Disabled Persons Act, and encourages other 
jurisdictions to consider that approach.
    Paragraph (a) restates the nondiscrimination mandate of section 202 
of the ADA. The remaining paragraphs in Sec. 35.130 establish the 
general principles for analyzing whether any particular action of the 
public entity violates this mandate.
    Paragraph (b) prohibits overt denials of equal treatment of 
individuals with disabilities. A public entity may not refuse to provide 
an individual with a disability with an equal opportunity to participate 
in or benefit from its program simply because the person has a 
disability.
    Paragraph (b)(1)(i) provides that it is discriminatory to deny a 
person with a disability the right to participate in or benefit from the 
aid, benefit, or service provided by a public entity. Paragraph 
(b)(1)(ii) provides that the aids, benefits, and services provided to 
persons with disabilities must be equal to those provided to others, and 
paragraph (b)(1)(iii) requires that the aids, benefits, or services 
provided to individuals with disabilities must be as effective in 
affording equal opportunity to obtain the same result, to gain the same 
benefit, or to reach the same level of achievement as those provided to 
others. These paragraphs are taken from the regulations implementing 
section 504 and simply restate principles long established under section 
504.
    Paragraph (b)(1)(iv) permits the public entity to develop separate 
or different aids, benefits, or services when necessary to provide 
individuals with disabilities with an equal opportunity to participate 
in or benefit from the public entity's programs or activities, but only 
when necessary to ensure that the aids, benefits, or services are as 
effective as those provided to others. Paragraph (b)(1)(iv) must be read 
in conjunction with paragraphs (b)(2), (d), and (e). Even when separate 
or different aids, benefits, or services would be more effective, 
paragraph (b)(2) provides that a qualified individual with a disability 
still has the right to choose to participate in the program that is not 
designed to accommodate individuals with disabilities. Paragraph (d) 
requires that a public entity administer services, programs, and 
activities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities.
    Paragraph (b)(2) specifies that, notwithstanding the existence of 
separate or different programs or activities provided in accordance with 
this section, an individual with a disability shall not be denied the 
opportunity to participate in such programs or activities that are not 
separate or different. Paragraph (e), which is derived from section 
501(d) of the Americans with Disabilities Act, states that nothing in 
this part shall be construed to require an individual with a disability 
to accept an accommodation, aid, service, opportunity, or benefit that 
he or she chooses not to accept.
    Taken together, these provisions are intended to prohibit exclusion 
and segregation

[[Page 476]]

of individuals with disabilities and the denial of equal opportunities 
enjoyed by others, based on, among other things, presumptions, 
patronizing attitudes, fears, and stereotypes about individuals with 
disabilities. Consistent with these standards, public entities are 
required to ensure that their actions are based on facts applicable to 
individuals and not on presumptions as to what a class of individuals 
with disabilities can or cannot do.
    Integration is fundamental to the purposes of the Americans with 
Disabilities Act. Provision of segregated accommodations and services 
relegates persons with disabilities to second-class status. For example, 
it would be a violation of this provision to require persons with 
disabilities to eat in the back room of a government cafeteria or to 
refuse to allow a person with a disability the full use of recreation or 
exercise facilities because of stereotypes about the person's ability to 
participate.
    Many commenters objected to proposed paragraphs (b)(1)(iv) and (d) 
as allowing continued segregation of individuals with disabilities. The 
Department recognizes that promoting integration of individuals with 
disabilities into the mainstream of society is an important objective of 
the ADA and agrees that, in most instances, separate programs for 
individuals with disabilities will not be permitted. Nevertheless, 
section 504 does permit separate programs in limited circumstances, and 
Congress clearly intended the regulations issued under title II to adopt 
the standards of section 504. Furthermore, Congress included authority 
for separate programs in the specific requirements of title III of the 
Act. Section 302(b)(1)(A)(iii) of the Act provides for separate benefits 
in language similar to that in Sec. 35.130(b)(1)(iv), and section 
302(b)(1)(B) includes the same requirement for ``the most integrated 
setting appropriate'' as in Sec. 35.130(d).
    Even when separate programs are permitted, individuals with 
disabilities cannot be denied the opportunity to participate in programs 
that are not separate or different. This is an important and overarching 
principle of the Americans with Disabilities Act. Separate, special, or 
different programs that are designed to provide a benefit to persons 
with disabilities cannot be used to restrict the participation of 
persons with disabilities in general, integrated activities.
    For example, a person who is blind may wish to decline participating 
in a special museum tour that allows persons to touch sculptures in an 
exhibit and instead tour the exhibit at his or her own pace with the 
museum's recorded tour. It is not the intent of this section to require 
the person who is blind to avail himself or herself of the special tour. 
Modified participation for persons with disabilities must be a choice, 
not a requirement.
    In addition, it would not be a violation of this section for a 
public entity to offer recreational programs specially designed for 
children with mobility impairments. However, it would be a violation of 
this section if the entity then excluded these children from other 
recreational services for which they are qualified to participate when 
these services are made available to nondisabled children, or if the 
entity required children with disabilities to attend only designated 
programs.
    Many commenters asked that the Department clarify a public entity's 
obligations within the integrated program when it offers a separate 
program but an individual with a disability chooses not to participate 
in the separate program. It is impossible to make a blanket statement as 
to what level of auxiliary aids or modifications would be required in 
the integrated program. Rather, each situation must be assessed 
individually. The starting point is to question whether the separate 
program is in fact necessary or appropriate for the individual. Assuming 
the separate program would be appropriate for a particular individual, 
the extent to which that individual must be provided with modifications 
in the integrated program will depend not only on what the individual 
needs but also on the limitations and defenses of this part. For 
example, it may constitute an undue burden for a public accommodation, 
which provides a full-time interpreter in its special guided tour for 
individuals with hearing impairments, to hire an additional interpreter 
for those individuals who choose to attend the integrated program. The 
Department cannot identify categorically the level of assistance or aid 
required in the integrated program.
    Paragraph (b)(1)(v) provides that a public entity may not aid or 
perpetuate discrimination against a qualified individual with a 
disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the public 
entity's program. This paragraph is taken from the regulations 
implementing section 504 for federally assisted programs.
    Paragraph (b)(1)(vi) prohibits the public entity from denying a 
qualified individual with a disability the opportunity to participate as 
a member of a planning or advisory board.
    Paragraph (b)(1)(vii) prohibits the public entity from limiting a 
qualified individual with a disability in the enjoyment of any right, 
privilege, advantage, or opportunity enjoyed by others receiving any 
aid, benefit, or service.

[[Page 477]]

    Paragraph (b)(3) prohibits the public entity from utilizing criteria 
or methods of administration that deny individuals with disabilities 
access to the public entity's services, programs, and activities or that 
perpetuate the discrimination of another public entity, if both public 
entities are subject to common administrative control or are agencies of 
the same State. The phrase ``criteria or methods of administration'' 
refers to official written policies of the public entity and to the 
actual practices of the public entity. This paragraph prohibits both 
blatantly exclusionary policies or practices and nonessential policies 
and practices that are neutral on their face, but deny individuals with 
disabilities an effective opportunity to participate. This standard is 
consistent with the interpretation of section 504 by the U.S. Supreme 
Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate 
explained that members of Congress made numerous statements during 
passage of section 504 regarding eliminating architectural barriers, 
providing access to transportation, and eliminating discriminatory 
effects of job qualification procedures. The Court then noted: ``These 
statements would ring hollow if the resulting legislation could not 
rectify the harms resulting from action that discriminated by effect as 
well as by design.'' Id. at 297 (footnote omitted).
    Paragraph (b)(4) specifically applies the prohibition enunciated in 
Sec. 35.130(b)(3) to the process of selecting sites for construction of 
new facilities or selecting existing facilities to be used by the public 
entity. Paragraph (b)(4) does not apply to construction of additional 
buildings at an existing site.
    Paragraph (b)(5) prohibits the public entity, in the selection of 
procurement contractors, from using criteria that subject qualified 
individuals with disabilities to discrimination on the basis of 
disability.
    Paragraph (b)(6) prohibits the public entity from discriminating 
against qualified individuals with disabilities on the basis of 
disability in the granting of licenses or certification. A person is a 
``qualified individual with a disability'' with respect to licensing or 
certification if he or she can meet the essential eligibility 
requirements for receiving the license or certification (see 
Sec. 35.104).
    A number of commenters were troubled by the phrase ``essential 
eligibility requirements'' as applied to State licensing requirements, 
especially those for health care professions. Because of the variety of 
types of programs to which the definition of ``qualified individual with 
a disability'' applies, it is not possible to use more specific language 
in the definition. The phrase ``essential eligibility requirements,'' 
however, is taken from the definitions in the regulations implementing 
section 504, so caselaw under section 504 will be applicable to its 
interpretation. In Southeastern Community College v. Davis, 442 U.S. 
397, for example, the Supreme Court held that section 504 does not 
require an institution to ``lower or effect substantial modifications of 
standards to accommodate a handicapped person,'' 442 U.S. at 413, and 
that the school had established that the plaintiff was not ``qualified'' 
because she was not able to ``serve the nursing profession in all 
customary ways,'' id. Whether a particular requirement is ``essential'' 
will, of course, depend on the facts of the particular case.
    In addition, the public entity may not establish requirements for 
the programs or activities of licensees or certified entities that 
subject qualified individuals with disabilities to discrimination on the 
basis of disability. For example, the public entity must comply with 
this requirement when establishing safety standards for the operations 
of licensees. In that case the public entity must ensure that standards 
that it promulgates do not discriminate against the employment of 
qualified individuals with disabilities in an impermissible manner.
    Paragraph (b)(6) does not extend the requirements of the Act or this 
part directly to the programs or activities of licensees or certified 
entities themselves. The programs or activities of licensees or 
certified entities are not themselves programs or activities of the 
public entity merely by virtue of the license or certificate.
    Paragraph (b)(7) is a specific application of the requirement under 
the general prohibitions of discrimination that public entities make 
reasonable modifications in policies, practices, or procedures where 
necessary to avoid discrimination on the basis of disability. Section 
302(b)(2)(A)(ii) of the ADA sets out this requirement specifically for 
public accommodations covered by title III of the Act, and the House 
Judiciary Committee Report directs the Attorney General to include those 
specific requirements in the title II regulation to the extent that they 
do not conflict with the regulations implementing section 504. Judiciary 
report at 52.
    Paragraph (b)(8), a new paragraph not contained in the proposed 
rule, prohibits the imposition or application of eligibility criteria 
that screen out or tend to screen out an individual with a disability or 
any class of individuals with disabilities from fully and equally 
enjoying any service, program, or activity, unless such criteria can be 
shown to be necessary for the provision of the service, program, or 
activity being offered. This prohibition is also a specific application 
of the general prohibitions of discrimination and is based on section 
302(b)(2)(A)(i) of the ADA. It prohibits overt denials of equal 
treatment of individuals with disabilities, or establishment of 
exclusive or segregative criteria that would bar individuals with 
disabilities from participation in services, benefits, or activities.

[[Page 478]]

    Paragraph (b)(8) also prohibits policies that unnecessarily impose 
requirements or burdens on individuals with disabilities that are not 
placed on others. For example, public entities may not require that a 
qualified individual with a disability be accompanied by an attendant. A 
public entity is not, however, required to provide attendant care, or 
assistance in toileting, eating, or dressing to individuals with 
disabilities, except in special circumstances, such as where the 
individual is an inmate of a custodial or correctional institution.
    In addition, paragraph (b)(8) prohibits the imposition of criteria 
that ``tend to'' screen out an individual with a disability. This 
concept, which is derived from current regulations under section 504 
(see, e.g., 45 CFR 84.13), makes it discriminatory to impose policies or 
criteria that, while not creating a direct bar to individuals with 
disabilities, indirectly prevent or limit their ability to participate. 
For example, requiring presentation of a driver's license as the sole 
means of identification for purposes of paying by check would violate 
this section in situations where, for example, individuals with severe 
vision impairments or developmental disabilities or epilepsy are 
ineligible to receive a driver's license and the use of an alternative 
means of identification, such as another photo I.D. or credit card, is 
feasible.
    A public entity may, however, impose neutral rules and criteria that 
screen out, or tend to screen out, individuals with disabilities if the 
criteria are necessary for the safe operation of the program in 
question. Examples of safety qualifications that would be justifiable in 
appropriate circumstances would include eligibility requirements for 
drivers' licenses, or a requirement that all participants in a 
recreational rafting expedition be able to meet a necessary level of 
swimming proficiency. Safety requirements must be based on actual risks 
and not on speculation, stereotypes, or generalizations about 
individuals with disabilities.
    Paragraph (c) provides that nothing in this part prohibits a public 
entity from providing benefits, services, or advantages to individuals 
with disabilities, or to a particular class of individuals with 
disabilities, beyond those required by this part. It is derived from a 
provision in the section 504 regulations that permits programs conducted 
pursuant to Federal statute or Executive order that are designed to 
benefit only individuals with disabilities or a given class of 
individuals with disabilities to be limited to those individuals with 
disabilities. Section 504 ensures that federally assisted programs are 
made available to all individuals, without regard to disabilities, 
unless the Federal program under which the assistance is provided is 
specifically limited to individuals with disabilities or a particular 
class of individuals with disabilities. Because coverage under this part 
is not limited to federally assisted programs, paragraph (c) has been 
revised to clarify that State and local governments may provide special 
benefits, beyond those required by the nondiscrimination requirements of 
this part, that are limited to individuals with disabilities or a 
particular class of individuals with disabilities, without thereby 
incurring additional obligations to persons without disabilities or to 
other classes of individuals with disabilities.
    Paragraphs (d) and (e), previously referred to in the discussion of 
paragraph (b)(1)(iv), provide that the public entity must administer 
services, programs, and activities in the most integrated setting 
appropriate to the needs of qualified individuals with disabilities, 
i.e., in a setting that enables individuals with disabilities to 
interact with nondisabled persons to the fullest extent possible, and 
that persons with disabilities must be provided the option of declining 
to accept a particular accommodation.
    Some commenters expressed concern that Sec. 35.130(e), which states 
that nothing in the rule requires an individual with a disability to 
accept special accommodations and services provided under the ADA, could 
be interpreted to allow guardians of infants or older people with 
disabilities to refuse medical treatment for their wards. Section 
35.130(e) has been revised to make it clear that paragraph (e) is 
inapplicable to the concern of the commenters. A new paragraph (e)(2) 
has been added stating that nothing in the regulation authorizes the 
representative or guardian of an individual with a disability to decline 
food, water, medical treatment, or medical services for that individual. 
New paragraph (e) clarifies that neither the ADA nor the regulation 
alters current Federal law ensuring the rights of incompetent 
individuals with disabilities to receive food, water, and medical 
treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 
5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 
U.S.C. 794); the Developmentally Disabled Assistance and Bill of Rights 
Act (42 U.S.C. 6042).
    Sections 35.130(e) (1) and (2) are based on section 501(d) of the 
ADA. Section 501(d) was designed to clarify that nothing in the ADA 
requires individuals with disabilities to accept special accommodations 
and services for individuals with disabilities that may segregate them:

    The Committee added this section [501(d)] to clarify that nothing in 
the ADA is intended to permit discriminatory treatment on the basis of 
disability, even when such treatment is rendered under the guise of 
providing an accommodation, service, aid or benefit to the individual 
with disability. For example, a blind individual may choose not to avail 
himself or herself of the right to go to the front of a line, even if a 
particular

[[Page 479]]

public accommodation has chosen to offer such a modification of a policy 
for blind individuals. Or, a blind individual may choose to decline to 
participate in a special museum tour that allows persons to touch 
sculptures in an exhibit and instead tour the exhibits at his or her own 
pace with the museum's recorded tour.

Judiciary report at 71-72. The Act is not to be construed to mean that 
an individual with disabilities must accept special accommodations and 
services for individuals with disabilities when that individual can 
participate in the regular services already offered. Because medical 
treatment, including treatment for particular conditions, is not a 
special accommodation or service for individuals with disabilities under 
section 501(d), neither the Act nor this part provides affirmative 
authority to suspend such treatment. Section 501(d) is intended to 
clarify that the Act is not designed to foster discrimination through 
mandatory acceptance of special services when other alternatives are 
provided; this concern does not reach to the provision of medical 
treatment for the disabling condition itself.
    Paragraph (f) provides that a public entity may not place a 
surcharge on a particular individual with a disability, or any group of 
individuals with disabilities, to cover any costs of measures required 
to provide that individual or group with the nondiscriminatory treatment 
required by the Act or this part. Such measures may include the 
provision of auxiliary aids or of modifications required to provide 
program accessibility.
    Several commenters asked for clarification that the costs of 
interpreter services may not be assessed as an element of ``court 
costs.'' The Department has already recognized that imposition of the 
cost of courtroom interpreter services is impermissible under section 
504. The preamble to the Department's section 504 regulation for its 
federally assisted programs states that where a court system has an 
obligation to provide qualified interpreters, ``it has the corresponding 
responsibility to pay for the services of the interpreters.'' (45 FR 
37630 (June 3, 1980)). Accordingly, recouping the costs of interpreter 
services by assessing them as part of court costs would also be 
prohibited.
    Paragraph (g), which prohibits discrimination on the basis of an 
individual's or entity's known relationship or association with an 
individual with a disability, is based on sections 102(b)(4) and 
302(b)(1)(E) of the ADA. This paragraph was not contained in the 
proposed rule. The individuals covered under this paragraph are any 
individuals who are discriminated against because of their known 
association with an individual with a disability. For example, it would 
be a violation of this paragraph for a local government to refuse to 
allow a theater company to use a school auditorium on the grounds that 
the company had recently performed for an audience of individuals with 
HIV disease.
    This protection is not limited to those who have a familial 
relationship with the individual who has a disability. Congress 
considered, and rejected, amendments that would have limited the scope 
of this provision to specific associations and relationships. Therefore, 
if a public entity refuses admission to a person with cerebral palsy and 
his or her companions, the companions have an independent right of 
action under the ADA and this section.
    During the legislative process, the term ``entity'' was added to 
section 302(b)(1)(E) to clarify that the scope of the provision is 
intended to encompass not only persons who have a known association with 
a person with a disability, but also entities that provide services to 
or are otherwise associated with such individuals. This provision was 
intended to ensure that entities such as health care providers, 
employees of social service agencies, and others who provide 
professional services to persons with disabilities are not subjected to 
discrimination because of their professional association with persons 
with disabilities.

                  Section 35.131  Illegal Use of Drugs

    Section 35.131 effectuates section 510 of the ADA, which clarifies 
the Act's application to people who use drugs illegally. Paragraph (a) 
provides that this part does not prohibit discrimination based on an 
individual's current illegal use of drugs.
    The Act and the regulation distinguish between illegal use of drugs 
and the legal use of substances, whether or not those substances are 
``controlled substances,'' as defined in the Controlled Substances Act 
(21 U.S.C. 812). Some controlled substances are prescription drugs that 
have legitimate medical uses. Section 35.131 does not affect use of 
controlled substances pursuant to a valid prescription under supervision 
by a licensed health care professional, or other use that is authorized 
by the Controlled Substances Act or any other provision of Federal law. 
It does apply to illegal use of those substances, as well as to illegal 
use of controlled substances that are not prescription drugs. The key 
question is whether the individual's use of the substance is illegal, 
not whether the substance has recognized legal uses. Alcohol is not a 
controlled substance, so use of alcohol is not addressed by Sec. 35.131 
(although alcoholics are individuals with disabilities, subject to the 
protections of the statute).
    A distinction is also made between the use of a substance and the 
status of being addicted to that substance. Addiction is a disability, 
and addicts are individuals with disabilities protected by the Act. The 
protection, however, does not extend to actions based on the illegal use 
of the substance. In

[[Page 480]]

other words, an addict cannot use the fact of his or her addiction as a 
defense to an action based on illegal use of drugs. This distinction is 
not artificial. Congress intended to deny protection to people who 
engage in the illegal use of drugs, whether or not they are addicted, 
but to provide protection to addicts so long as they are not currently 
using drugs.
    A third distinction is the difficult one between current use and 
former use. The definition of ``current illegal use of drugs'' in 
Sec. 35.104, which is based on the report of the Conference Committee, 
H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990) (hereinafter 
``Conference report''), is ``illegal use of drugs that occurred recently 
enough to justify a reasonable belief that a person's drug use is 
current or that continuing use is a real and ongoing problem.''
    Paragraph (a)(2)(i) specifies that an individual who has 
successfully completed a supervised drug rehabilitation program or has 
otherwise been rehabilitated successfully and who is not engaging in 
current illegal use of drugs is protected. Paragraph (a)(2)(ii) 
clarifies that an individual who is currently participating in a 
supervised rehabilitation program and is not engaging in current illegal 
use of drugs is protected. Paragraph (a)(2)(iii) provides that a person 
who is erroneously regarded as engaging in current illegal use of drugs, 
but who is not engaging in such use, is protected.
    Paragraph (b) provides a limited exception to the exclusion of 
current illegal users of drugs from the protections of the Act. It 
prohibits denial of health services, or services provided in connection 
with drug rehabilitation to an individual on the basis of current 
illegal use of drugs, if the individual is otherwise entitled to such 
services. A health care facility, such as a hospital or clinic, may not 
refuse treatment to an individual in need of the services it provides on 
the grounds that the individual is illegally using drugs, but it is not 
required by this section to provide services that it does not ordinarily 
provide. For example, a health care facility that specializes in a 
particular type of treatment, such as care of burn victims, is not 
required to provide drug rehabilitation services, but it cannot refuse 
to treat a individual's burns on the grounds that the individual is 
illegally using drugs.
    Some commenters pointed out that abstention from the use of drugs is 
an essential condition of participation in some drug rehabilitation 
programs, and may be a necessary requirement in inpatient or residential 
settings. The Department believes that this comment is well-founded. 
Congress clearly intended to prohibit exclusion from drug treatment 
programs of the very individuals who need such programs because of their 
use of drugs, but, once an individual has been admitted to a program, 
abstention may be a necessary and appropriate condition to continued 
participation. The final rule therefore provides that a drug 
rehabilitation or treatment program may prohibit illegal use of drugs by 
individuals while they are participating in the program.
    Paragraph (c) expresses Congress' intention that the Act be neutral 
with respect to testing for illegal use of drugs. This paragraph 
implements the provision in section 510(b) of the Act that allows 
entities ``to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing,'' that ensure that an 
individual who is participating in a supervised rehabilitation program, 
or who has completed such a program or otherwise been rehabilitated 
successfully is no longer engaging in the illegal use of drugs. The 
section is not to be ``construed to encourage, prohibit, restrict, or 
authorize the conducting of testing for the illegal use of drugs.''
    Paragraph 35.131(c) clarifies that it is not a violation of this 
part to adopt or administer reasonable policies or procedures to ensure 
that an individual who formerly engaged in the illegal use of drugs is 
not currently engaging in illegal use of drugs. Any such policies or 
procedures must, of course, be reasonable, and must be designed to 
identify accurately the illegal use of drugs. This paragraph does not 
authorize inquiries, tests, or other procedures that would disclose use 
of substances that are not controlled substances or are taken under 
supervision by a licensed health care professional, or other uses 
authorized by the Controlled Substances Act or other provisions of 
Federal law, because such uses are not included in the definition of 
``illegal use of drugs.'' A commenter argued that the rule should permit 
testing for lawful use of prescription drugs, but most commenters 
preferred that tests must be limited to unlawful use in order to avoid 
revealing the lawful use of prescription medicine used to treat 
disabilities.

                         Section 35.132  Smoking

    Section 35.132 restates the clarification in section 501(b) of the 
Act that the Act does not preclude the prohibition of, or imposition of 
restrictions on, smoking in transportation covered by title II. Some 
commenters argued that this section is too limited in scope, and that 
the regulation should prohibit smoking in all facilities used by public 
entities. The reference to smoking in section 501, however, merely 
clarifies that the Act does not require public entities to accommodate 
smokers by permitting them to smoke in transportation facilities.

[[Page 481]]

           Section 35.133  Maintenance of Accessible Features

    Section 35.133 provides that a public entity shall maintain in 
operable working condition those features of facilities and equipment 
that are required to be readily accessible to and usable by persons with 
disabilities by the Act or this part. The Act requires that, to the 
maximum extent feasible, facilities must be accessible to, and usable 
by, individuals with disabilities. This section recognizes that it is 
not sufficient to provide features such as accessible routes, elevators, 
or ramps, if those features are not maintained in a manner that enables 
individuals with disabilities to use them. Inoperable elevators, locked 
accessible doors, or ``accessible'' routes that are obstructed by 
furniture, filing cabinets, or potted plants are neither ``accessible 
to'' nor ``usable by'' individuals with disabilities.
    Some commenters objected that this section appeared to establish an 
absolute requirement and suggested that language from the preamble be 
included in the text of the regulation. It is, of course, impossible to 
guarantee that mechanical devices will never fail to operate. Paragraph 
(b) of the final regulation provides that this section does not prohibit 
isolated or temporary interruptions in service or access due to 
maintenance or repairs. This paragraph is intended to clarify that 
temporary obstructions or isolated instances of mechanical failure would 
not be considered violations of the Act or this part. However, allowing 
obstructions or ``out of service'' equipment to persist beyond a 
reasonable period of time would violate this part, as would repeated 
mechanical failures due to improper or inadequate maintenance. Failure 
of the public entity to ensure that accessible routes are properly 
maintained and free of obstructions, or failure to arrange prompt repair 
of inoperable elevators or other equipment intended to provide access 
would also violate this part.
    Other commenters requested that this section be expanded to include 
specific requirements for inspection and maintenance of equipment, for 
training staff in the proper operation of equipment, and for maintenance 
of specific items. The Department believes that this section properly 
establishes the general requirement for maintaining access and that 
further details are not necessary.

                 Section 35.134  Retaliation or Coercion

    Section 35.134 implements section 503 of the ADA, which prohibits 
retaliation against any individual who exercises his or her rights under 
the Act. This section is unchanged from the proposed rule. Paragraph (a) 
of Sec. 35.134 provides that no private or public entity shall 
discriminate against any individual because that individual has 
exercised his or her right to oppose any act or practice made unlawful 
by this part, or because that individual made a charge, testified, 
assisted, or participated in any manner in an investigation, proceeding, 
or hearing under the Act or this part.
    Paragraph (b) provides that no private or public entity shall 
coerce, intimidate, threaten, or interfere with any individual in the 
exercise of his or her rights under this part or because that individual 
aided or encouraged any other individual in the exercise or enjoyment of 
any right granted or protected by the Act or this part.
    This section protects not only individuals who allege a violation of 
the Act or this part, but also any individuals who support or assist 
them. This section applies to all investigations or proceedings 
initiated under the Act or this part without regard to the ultimate 
resolution of the underlying allegations. Because this section prohibits 
any act of retaliation or coercion in response to an individual's effort 
to exercise rights established by the Act and this part (or to support 
the efforts of another individual), the section applies not only to 
public entities subject to this part, but also to persons acting in an 
individual capacity or to private entities. For example, it would be a 
violation of the Act and this part for a private individual to harass or 
intimidate an individual with a disability in an effort to prevent that 
individual from attending a concert in a State-owned park. It would, 
likewise, be a violation of the Act and this part for a private entity 
to take adverse action against an employee who appeared as a witness on 
behalf of an individual who sought to enforce the Act.

              Section 35.135  Personal Devices and Services

    The final rule includes a new Sec. 35.135, entitles ``Personal 
devices and services,'' which states that the provision of personal 
devices and services is not required by title II. This new section, 
which serves as a limitation on all of the requirements of the 
regulation, replaces Sec. 35.160(b)(2) of the proposed rule, which 
addressed the issue of personal devices and services explicitly only in 
the context of communications. The personal devices and services 
limitation was intended to have general application in the proposed rule 
in all contexts where it was relevant. The final rule, therefore, 
clarifies this point by including a general provision that will 
explicitly apply not only to auxiliary aids and services but across-the-
board to include other relevant areas such as, for example, 
modifications in policies, practices, and procedures 
(Sec. 35.130(b)(7)). The language of Sec. 35.135 parallels an analogous 
provision in the Department's title III regulations (28 CFR 36.306) but 
preserves the explicit reference to ``readers for personal use or 
study'' in Sec. 35.160(b)(2) of the proposed rule. This section does not

[[Page 482]]

preclude the short-term loan of personal receivers that are part of an 
assistive listening system.

                          Subpart C--Employment

          Section 35.140  Employment Discrimination Prohibited

    Title II of the ADA applies to all activities of public entities, 
including their employment practices. The proposed rule cross-referenced 
the definitions, requirements, and procedures of title I of the ADA, as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1630. This proposal would have resulted in use, under Sec. 35.140, 
of the title I definition of ``employer,'' so that a public entity with 
25 or more employees would have become subject to the requirements of 
Sec. 35.140 on July 26, 1992, one with 15 to 24 employees on July 26, 
1994, and one with fewer than 15 employees would have been excluded 
completely.
    The Department received comments objecting to this approach. The 
commenters asserted that Congress intended to establish 
nondiscrimination requirements for employment by all public entities, 
including those that employ fewer than 15 employees; and that Congress 
intended the employment requirements of title II to become effective at 
the same time that the other requirements of this regulation become 
effective, January 26, 1992. The Department has reexamined the statutory 
language and legislative history of the ADA on this issue and has 
concluded that Congress intended to cover the employment practices of 
all public entities and that the applicable effective date is that of 
title II.
    The statutory language of section 204(b) of the ADA requires the 
Department to issue a regulation that is consistent with the ADA and the 
Department's coordination regulation under section 504, 28 CFR part 41. 
The coordination regulation specifically requires nondiscrimination in 
employment, 28 CFR 41.52-41.55, and does not limit coverage based on 
size of employer. Moreover, under all section 504 implementing 
regulations issued in accordance with the Department's coordination 
regulation, employment coverage under section 504 extends to all 
employers with federally assisted programs or activities, regardless of 
size, and the effective date for those employment requirements has 
always been the same as the effective date for nonemployment 
requirements established in the same regulations. The Department 
therefore concludes that Sec. 35.140 must apply to all public entities 
upon the effective date of this regulation.
    In the proposed regulation the Department cross-referenced the 
regulations implementing title I of the ADA, issued by the Equal 
Employment Opportunity Commission at 29 CFR part 1630, as a compliance 
standard for Sec. 35.140 because, as proposed, the scope of coverage and 
effective date of coverage under title II would have been coextensive 
with title I. In the final regulation this language is modified 
slightly. Subparagraph (1) of new paragraph (b) makes it clear that the 
standards established by the Equal Employment Opportunity Commission in 
29 CFR part 1630 will be the applicable compliance standards if the 
public entity is subject to title I. If the public entity is not covered 
by title I, or until it is covered by title I, subparagraph (b)(2) 
cross-references section 504 standards for what constitutes employment 
discrimination, as established by the Department of Justice in 28 CFR 
part 41. Standards for title I of the ADA and section 504 of the 
Rehabilitation Act are for the most part identical because title I of 
the ADA was based on requirements set forth in regulations implementing 
section 504.
    The Department, together with the other Federal agencies responsible 
for the enforcement of Federal laws prohibiting employment 
discrimination on the basis of disability, recognizes the potential for 
jurisdictional overlap that exists with respect to coverage of public 
entities and the need to avoid problems related to overlapping coverage. 
The other Federal agencies include the Equal Employment Opportunity 
Commission, which is the agency primarily responsible for enforcement of 
title I of the ADA, the Department of Labor, which is the agency 
responsible for enforcement of section 503 of the Rehabilitation Act of 
1973, and 26 Federal agencies with programs of Federal financial 
assistance, which are responsible for enforcing section 504 in those 
programs. Section 107 of the ADA requires that coordination mechanisms 
be developed in connection with the administrative enforcement of 
complaints alleging discrimination under title I and complaints alleging 
discrimination in employment in violation of the Rehabilitation Act. 
Although the ADA does not specifically require inclusion of employment 
complaints under title II in the coordinating mechanisms required by 
title I, Federal investigations of title II employment complaints will 
be coordinated on a government-wide basis also. The Department is 
currently working with the EEOC and other affected Federal agencies to 
develop effective coordinating mechanisms, and final regulations on this 
issue will be issued on or before January 26, 1992.

                    Subpart D--Program Accessibility

                Section 35.149  Discrimination Prohibited

    Section 35.149 states the general nondiscrimination principle 
underlying the program accessibility requirements of Secs. 35.150 and 
35.151.

[[Page 483]]

                   Section 35.150  Existing Facilities

    Consistent with section 204(b) of the Act, this regulation adopts 
the program accessibility concept found in the section 504 regulations 
for federally conducted programs or activities (e.g., 28 CFR part 39). 
The concept of ``program accessibility'' was first used in the section 
504 regulation adopted by the Department of Health, Education, and 
Welfare for its federally assisted programs and activities in 1977. It 
allowed recipients to make their federally assisted programs and 
activities available to individuals with disabilities without extensive 
retrofitting of their existing buildings and facilities, by offering 
those programs through alternative methods. Program accessibility has 
proven to be a useful approach and was adopted in the regulations issued 
for programs and activities conducted by Federal Executive agencies. The 
Act provides that the concept of program access will continue to apply 
with respect to facilities now in existence, because the cost of 
retrofitting existing facilities is often prohibitive.
    Section 35.150 requires that each service, program, or activity 
conducted by a public entity, when viewed in its entirety, be readily 
accessible to and usable by individuals with disabilities. The 
regulation makes clear, however, that a public entity is not required to 
make each of its existing facilities accessible (Sec. 35.150(a)(1)). 
Unlike title III of the Act, which requires public accommodations to 
remove architectural barriers where such removal is ``readily 
achievable,'' or to provide goods and services through alternative 
methods, where those methods are ``readily achievable,'' title II 
requires a public entity to make its programs accessible in all cases, 
except where to do so would result in a fundamental alteration in the 
nature of the program or in undue financial and administrative burdens. 
Congress intended the ``undue burden'' standard in title II to be 
significantly higher than the ``readily achievable'' standard in title 
III. Thus, although title II may not require removal of barriers in some 
cases where removal would be required under title III, the program 
access requirement of title II should enable individuals with 
disabilities to participate in and benefit from the services, programs, 
or activities of public entities in all but the most unusual cases.
    Paragraph (a)(2), which establishes a special limitation on the 
obligation to ensure program accessibility in historic preservation 
programs, is discussed below in connection with paragraph (b).
    Paragraph (a)(3), which is taken from the section 504 regulations 
for federally conducted programs, generally codifies case law that 
defines the scope of the public entity's obligation to ensure program 
accessibility. This paragraph provides that, in meeting the program 
accessibility requirement, a public entity is not required to take any 
action that would result in a fundamental alteration in the nature of 
its service, program, or activity or in undue financial and 
administrative burdens. A similar limitation is provided in Sec. 35.164.
    This paragraph does not establish an absolute defense; it does not 
relieve a public entity of all obligations to individuals with 
disabilities. Although a public entity is not required to take actions 
that would result in a fundamental alteration in the nature of a 
service, program, or activity or in undue financial and administrative 
burdens, it nevertheless must take any other steps necessary to ensure 
that individuals with disabilities receive the benefits or services 
provided by the public entity.
    It is the Department's view that compliance with Sec. 35.150(a), 
like compliance with the corresponding provisions of the section 504 
regulations for federally conducted programs, would in most cases not 
result in undue financial and administrative burdens on a public entity. 
In determining whether financial and administrative burdens are undue, 
all public entity resources available for use in the funding and 
operation of the service, program, or activity should be considered. The 
burden of proving that compliance with paragraph (a) of Sec. 35.150 
would fundamentally alter the nature of a service, program, or activity 
or would result in undue financial and administrative burdens rests with 
the public entity.
    The decision that compliance would result in such alteration or 
burdens must be made by the head of the public entity or his or her 
designee and must be accompanied by a written statement of the reasons 
for reaching that conclusion. The Department recognizes the difficulty 
of identifying the official responsible for this determination, given 
the variety of organizational forms that may be taken by public entities 
and their components. The intention of this paragraph is that the 
determination must be made by a high level official, no lower than a 
Department head, having budgetary authority and responsibility for 
making spending decisions.
    Any person who believes that he or she or any specific class of 
persons has been injured by the public entity head's decision or failure 
to make a decision may file a complaint under the compliance procedures 
established in subpart F.
    Paragraph (b)(1) sets forth a number of means by which program 
accessibility may be achieved, including redesign of equipment, 
reassignment of services to accessible buildings, and provision of 
aides.
    The Department wishes to clarify that, consistent with longstanding 
interpretation of section 504, carrying an individual with a disability 
is considered an ineffective and therefore an unacceptable method for 
achieving program accessibility. Department

[[Page 484]]

of Health, Education, and Welfare, Office of Civil Rights, Policy 
Interpretation No. 4, 43 FR 36035 (August 14, 1978). Carrying will be 
permitted only in manifestly exceptional cases, and only if all 
personnel who are permitted to participate in carrying an individual 
with a disability are formally instructed on the safest and least 
humiliating means of carrying. ``Manifestly exceptional'' cases in which 
carrying would be permitted might include, for example, programs 
conducted in unique facilities, such as an oceanographic vessel, for 
which structural changes and devices necessary to adapt the facility for 
use by individuals with mobility impairments are unavailable or 
prohibitively expensive. Carrying is not permitted as an alternative to 
structural modifications such as installation of a ramp or a chairlift.
    In choosing among methods, the public entity shall give priority 
consideration to those that will be consistent with provision of 
services in the most integrated setting appropriate to the needs of 
individuals with disabilities. Structural changes in existing facilities 
are required only when there is no other feasible way to make the public 
entity's program accessible. (It should be noted that ``structural 
changes'' include all physical changes to a facility; the term does not 
refer only to changes to structural features, such as removal of or 
alteration to a load-bearing structural member.) The requirements of 
Sec. 35.151 for alterations apply to structural changes undertaken to 
comply with this section. The public entity may comply with the program 
accessibility requirement by delivering services at alternate accessible 
sites or making home visits as appropriate.

                     Historic Preservation Programs

     In order to avoid possible conflict between the congressional 
mandates to preserve historic properties, on the one hand, and to 
eliminate discrimination against individuals with disabilities on the 
other, paragraph (a)(2) provides that a public entity is not required to 
take any action that would threaten or destroy the historic significance 
of an historic property. The special limitation on program accessibility 
set forth in paragraph (a)(2) is applicable only to historic 
preservation programs, as defined in Sec. 35.104, that is, programs that 
have preservation of historic properties as a primary purpose. Narrow 
application of the special limitation is justified because of the 
inherent flexibility of the program accessibility requirement. Where 
historic preservation is not a primary purpose of the program, the 
public entity is not required to use a particular facility. It can 
relocate all or part of its program to an accessible facility, make home 
visits, or use other standard methods of achieving program accessibility 
without making structural alterations that might threaten or destroy 
significant historic features of the historic property. Thus, government 
programs located in historic properties, such as an historic State 
capitol, are not excused from the requirement for program access.
    Paragraph (a)(2), therefore, will apply only to those programs that 
uniquely concern the preservation and experience of the historic 
property itself. Because the primary benefit of an historic preservation 
program is the experience of the historic property, paragraph (b)(2) 
requires the public entity to give priority to methods of providing 
program accessibility that permit individuals with disabilities to have 
physical access to the historic property. This priority on physical 
access may also be viewed as a specific application of the general 
requirement that the public entity administer programs in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities (Sec. 35.130(d)). Only when providing physical access 
would threaten or destroy the historic significance of an historic 
property, or would result in a fundamental alteration in the nature of 
the program or in undue financial and administrative burdens, may the 
public entity adopt alternative methods for providing program 
accessibility that do not ensure physical access. Examples of some 
alternative methods are provided in paragraph (b)(2).

                              Time Periods

    Paragraphs (c) and (d) establish time periods for complying with the 
program accessibility requirement. Like the regulations for federally 
assisted programs (e.g., 28 CFR 41.57(b)), paragraph (c) requires the 
public entity to make any necessary structural changes in facilities as 
soon as practicable, but in no event later than three years after the 
effective date of this regulation.
    The proposed rule provided that, aside from structural changes, all 
other necessary steps to achieve compliance with this part must be taken 
within sixty days. The sixty day period was taken from regulations 
implementing section 504, which generally were effective no more than 
thirty days after publication. Because this regulation will not be 
effective until January 26, 1992, the Department has concluded that no 
additional transition period for non-structural changes is necessary, so 
the sixty day period has been omitted in the final rule. Of course, this 
section does not reduce or eliminate any obligations that are already 
applicable to a public entity under section 504.
    Where structural modifications are required, paragraph (d) requires 
that a transition plan be developed by an entity that employs 50 or more 
persons, within six months of the effective date of this regulation. The 
legislative history of title II of the ADA makes it clear that, under 
title II, ``local and

[[Page 485]]

state governments are required to provide curb cuts on public streets.'' 
Education and Labor report at 84. As the rationale for the provision of 
curb cuts, the House report explains, ``The employment, transportation, 
and public accommodation sections of * * * (the ADA) would be 
meaningless if people who use wheelchairs were not afforded the 
opportunity to travel on and between the streets.'' Id. Section 
35.151(e), which establishes accessibility requirements for new 
construction and alterations, requires that all newly constructed or 
altered streets, roads, or highways must contain curb ramps or other 
sloped areas at any intersection having curbs or other barriers to entry 
from a street level pedestrian walkway, and all newly constructed or 
altered street level pedestrian walkways must have curb ramps or other 
sloped areas at intersections to streets, roads, or highways. A new 
paragraph (d)(2) has been added to the final rule to clarify the 
application of the general requirement for program accessibility to the 
provision of curb cuts at existing crosswalks. This paragraph requires 
that the transition plan include a schedule for providing curb ramps or 
other sloped areas at existing pedestrian walkways, giving priority to 
walkways serving entities covered by the Act, including State and local 
government offices and facilities, transportation, public 
accommodations, and employers, followed by walkways serving other areas. 
Pedestrian ``walkways'' include locations where access is required for 
use of public transportation, such as bus stops that are not located at 
intersections or crosswalks.
    Similarly, a public entity should provide an adequate number of 
accessible parking spaces in existing parking lots or garages over which 
it has jurisdiction.
    Paragraph (d)(3) provides that, if a public entity has already 
completed a transition plan required by a regulation implementing 
section 504, the transition plan required by this part will apply only 
to those policies and practices that were not covered by the previous 
transition plan. Some commenters suggested that the transition plan 
should include all aspects of the public entity's operations, including 
those that may have been covered by a previous transition plan under 
section 504. The Department believes that such a duplicative requirement 
would be inappropriate. Many public entities may find, however, that it 
will be simpler to include all of their operations in the transition 
plan than to attempt to identify and exclude specifically those that 
were addressed in a previous plan. Of course, entities covered under 
section 504 are not shielded from their obligations under that statute 
merely because they are included under the transition plan developed 
under this section.

            Section 35.151  New Construction and Alterations

    Section 35.151 provides that those buildings that are constructed or 
altered by, on behalf of, or for the use of a public entity shall be 
designed, constructed, or altered to be readily accessible to and usable 
by individuals with disabilities if the construction was commenced after 
the effective date of this part. Facilities under design on that date 
will be governed by this section if the date that bids were invited 
falls after the effective date. This interpretation is consistent with 
Federal practice under section 504.
    Section 35.151(c) establishes two standards for accessible new 
construction and alteration. Under paragraph (c), design, construction, 
or alteration of facilities in conformance with the Uniform Federal 
Accessibility Standards (UFAS) or with the Americans with Disabilities 
Act Accessibility Guidelines for Buildings and Facilities (hereinafter 
ADAAG) shall be deemed to comply with the requirements of this section 
with respect to those facilities except that, if ADAAG is chosen, the 
elevator exemption contained at Secs. 36.40l(d) and 36.404 does not 
apply. ADAAG is the standard for private buildings and was issued as 
guidelines by the Architectural and Transportation Barriers Compliance 
Board (ATBCB) under title III of the ADA. It has been adopted by the 
Department of Justice and is published as appendix A to the Department's 
title III rule in today's Federal Register. Departures from particular 
requirements of these standards by the use of other methods shall be 
permitted when it is clearly evident that equivalent access to the 
facility or part of the facility is thereby provided. Use of two 
standards is a departure from the proposed rule.
    The proposed rule adopted UFAS as the only interim accessibility 
standard because that standard was referenced by the regulations 
implementing section 504 of the Rehabilitation Act promulgated by most 
Federal funding agencies. It is, therefore, familiar to many State and 
local government entities subject to this rule. The Department, however, 
received many comments objecting to the adoption of UFAS. Commenters 
pointed out that, except for the elevator exemption, UFAS is not as 
stringent as ADAAG. Others suggested that the standard should be the 
same to lessen confusion.
    Section 204(b) of the Act states that title II regulations must be 
consistent not only with section 504 regulations but also with ``this 
Act.'' Based on this provision, the Department has determined that a 
public entity should be entitled to choose to comply either with ADAAG 
or UFAS.
    Public entities who choose to follow ADAAG, however, are not 
entitled to the elevator exemption contained in title III of the

[[Page 486]]

Act and implemented in the title III regulation at Sec. 36.401(d) for 
new construction and Sec. 36.404 for alterations. Section 303(b) of 
title III states that, with some exceptions, elevators are not required 
in facilities that are less than three stories or have less than 3000 
square feet per story. The section 504 standard, UFAS, contains no such 
exemption. Section 501 of the ADA makes clear that nothing in the Act 
may be construed to apply a lesser standard to public entities than the 
standards applied under section 504. Because permitting the elevator 
exemption would clearly result in application of a lesser standard than 
that applied under section 504, paragraph (c) states that the elevator 
exemption does not apply when public entities choose to follow ADAAG. 
Thus, a two-story courthouse, whether built according to UFAS or ADAAG, 
must be constructed with an elevator. It should be noted that Congress 
did not include an elevator exemption for public transit facilities 
covered by subtitle B of title II, which covers public transportation 
provided by public entities, providing further evidence that Congress 
intended that public buildings have elevators.
    Section 504 of the ADA requires the ATBCB to issue supplemental 
Minimum Guidelines and Requirements for Accessible Design of buildings 
and facilities subject to the Act, including title II. Section 204(c) of 
the ADA provides that the Attorney General shall promulgate regulations 
implementing title II that are consistent with the ATBCB's ADA 
guidelines. The ATBCB has announced its intention to issue title II 
guidelines in the future. The Department anticipates that, after the 
ATBCB's title II guidelines have been published, this rule will be 
amended to adopt new accessibility standards consistent with the ATBCB's 
rulemaking. Until that time, however, public entities will have a choice 
of following UFAS or ADAAG, without the elevator exemption.
    Existing buildings leased by the public entity after the effective 
date of this part are not required by the regulation to meet 
accessibility standards simply by virtue of being leased. They are 
subject, however, to the program accessibility standard for existing 
facilities in Sec. 35.150. To the extent the buildings are newly 
constructed or altered, they must also meet the new construction and 
alteration requirements of Sec. 35.151.
    The Department received many comments urging that the Department 
require that public entities lease only accessible buildings. Federal 
practice under section 504 has always treated newly leased buildings as 
subject to the existing facility program accessibility standard. Section 
204(b) of the Act states that, in the area of ``program accessibility, 
existing facilities,'' the title II regulations must be consistent with 
section 504 regulations. Thus, the Department has adopted the section 
504 principles for these types of leased buildings. Unlike the 
construction of new buildings where architectural barriers can be 
avoided at little or no cost, the application of new construction 
standards to an existing building being leased raises the same prospect 
of retrofitting buildings as the use of an existing Federal facility, 
and the same program accessibility standard should apply to both owned 
and leased existing buildings. Similarly, requiring that public entities 
only lease accessible space would significantly restrict the options of 
State and local governments in seeking leased space, which would be 
particularly burdensome in rural or sparsely populated areas.
    On the other hand, the more accessible the leased space is, the 
fewer structural modifications will be required in the future for 
particular employees whose disabilities may necessitate barrier removal 
as a reasonable accommodation. Pursuant to the requirements for leased 
buildings contained in the Minimum Guidelines and Requirements for 
Accessible Design published under the Architectural Barriers Act by the 
ATBCB, 36 CFR 1190.34, the Federal Government may not lease a building 
unless it contains (1) One accessible route from an accessible entrance 
to those areas in which the principal activities for which the building 
is leased are conducted, (2) accessible toilet facilities, and (3) 
accessible parking facilities, if a parking area is included within the 
lease (36 CFR 1190.34). Although these requirements are not applicable 
to buildings leased by public entities covered by this regulation, such 
entities are encouraged to look for the most accessible space available 
to lease and to attempt to find space complying at least with these 
minimum Federal requirements.
    Section 35.151(d) gives effect to the intent of Congress, expressed 
in section 504(c) of the Act, that this part recognize the national 
interest in preserving significant historic structures. Commenters 
criticized the Department's use of descriptive terms in the proposed 
rule that are different from those used in the ADA to describe eligible 
historic properties. In addition, some commenters criticized the 
Department's decision to use the concept of ``substantially impairing'' 
the historic features of a property, which is a concept employed in 
regulations implementing section 504 of the Rehabilitation Act of 1973. 
Those commenters recommended that the Department adopt the criteria of 
``adverse effect'' published by the Advisory Council on Historic 
Preservation under the National Historic Preservation Act, 36 CFR 800.9, 
as the standard for determining whether an historic property may be 
altered.
    The Department agrees with these comments to the extent that they 
suggest that the language of the rule should conform to the language 
employed by Congress in the ADA. A definition of ``historic property,''

[[Page 487]]

drawn from section 504 of the ADA, has been added to Sec. 35.104 to 
clarify that the term applies to those properties listed or eligible for 
listing in the National Register of Historic Places, or properties 
designated as historic under State or local law.
    The Department intends that the exception created by this section be 
applied only in those very rare situations in which it is not possible 
to provide access to an historic property using the special access 
provisions established by UFAS and ADAAG. Therefore, paragraph (d)(1) of 
Sec. 35.151 has been revised to clearly state that alterations to 
historic properties shall comply, to the maximum extent feasible, with 
section 4.1.7 of UFAS or section 4.1.7 of ADAAG. Paragraph (d)(2) has 
been revised to provide that, if it has been determined under the 
procedures established in UFAS and ADAAG that it is not feasible to 
provide physical access to an historic property in a manner that will 
not threaten or destroy the historic significance of the property, 
alternative methods of access shall be provided pursuant to the 
requirements of Sec. 35.150.
    In response to comments, the Department has added to the final rule 
a new paragraph (e) setting out the requirements of Sec. 36.151 as 
applied to curb ramps. Paragraph (e) is taken from the statement 
contained in the preamble to the proposed rule that all newly 
constructed or altered streets, roads, and highways must contain curb 
ramps at any intersection having curbs or other barriers to entry from a 
street level pedestrian walkway, and that all newly constructed or 
altered street level pedestrian walkways must have curb ramps at 
intersections to streets, roads, or highways.

                        Subpart E--Communications

                         Section 35.160  General

    Section 35.160 requires the public entity to take such steps as may 
be necessary to ensure that communications with applicants, 
participants, and members of the public with disabilities are as 
effective as communications with others.
    Paragraph (b)(1) requires the public entity to furnish appropriate 
auxiliary aids and services when necessary to afford an individual with 
a disability an equal opportunity to participate in, and enjoy the 
benefits of, the public entity's service, program, or activity. The 
public entity must provide an opportunity for individuals with 
disabilities to request the auxiliary aids and services of their choice. 
This expressed choice shall be given primary consideration by the public 
entity (Sec. 35.160(b)(2)). The public entity shall honor the choice 
unless it can demonstrate that another effective means of communication 
exists or that use of the means chosen would not be required under 
Sec. 35.164.
    Deference to the request of the individual with a disability is 
desirable because of the range of disabilities, the variety of auxiliary 
aids and services, and different circumstances requiring effective 
communication. For instance, some courtrooms are now equipped for 
``computer-assisted transcripts,'' which allow virtually instantaneous 
transcripts of courtroom argument and testimony to appear on displays. 
Such a system might be an effective auxiliary aid or service for a 
person who is deaf or has a hearing loss who uses speech to communicate, 
but may be useless for someone who uses sign language.
    Although in some circumstances a notepad and written materials may 
be sufficient to permit effective communication, in other circumstances 
they may not be sufficient. For example, a qualified interpreter may be 
necessary when the information being communicated is complex, or is 
exchanged for a lengthy period of time. Generally, factors to be 
considered in determining whether an interpreter is required include the 
context in which the communication is taking place, the number of people 
involved, and the importance of the communication.
    Several commenters asked that the rule clarify that the provision of 
readers is sometimes necessary to ensure access to a public entity's 
services, programs or activities. Reading devices or readers should be 
provided when necessary for equal participation and opportunity to 
benefit from any governmental service, program, or activity, such as 
reviewing public documents, examining demonstrative evidence, and 
filling out voter registration forms or forms needed to receive public 
benefits. The importance of providing qualified readers for examinations 
administered by public entities is discussed under Sec. 35.130. Reading 
devices and readers are appropriate auxiliary aids and services where 
necessary to permit an individual with a disability to participate in or 
benefit from a service, program, or activity.
    Section 35.160(b)(2) of the proposed rule, which provided that a 
public entity need not furnish individually prescribed devices, readers 
for personal use or study, or other devices of a personal nature, has 
been deleted in favor of a new section in the final rule on personal 
devices and services (see Sec. 35.135).
    In response to comments, the term ``auxiliary aids and services'' is 
used in place of ``auxiliary aids'' in the final rule. This phrase 
better reflects the range of aids and services that may be required 
under this section.
    A number of comments raised questions about the extent of a public 
entity's obligation to provide access to television programming for 
persons with hearing impairments. Television and videotape programming 
produced by public entities are covered by this

[[Page 488]]

section. Access to audio portions of such programming may be provided by 
closed captioning.

     Section 35.161  Telecommunication Devices for the Deaf (TDD's)

    Section 35.161 requires that, where a public entity communicates 
with applicants and beneficiaries by telephone, TDD's or equally 
effective telecommunication systems be used to communicate with 
individuals with impaired speech or hearing.
    Problems arise when a public entity which does not have a TDD needs 
to communicate with an individual who uses a TDD or vice versa. Title IV 
of the ADA addresses this problem by requiring establishment of 
telephone relay services to permit communications between individuals 
who communicate by TDD and individuals who communicate by the telephone 
alone. The relay services required by title IV would involve a relay 
operator using both a standard telephone and a TDD to type the voice 
messages to the TDD user and read the TDD messages to the standard 
telephone user.
    Section 204(b) of the ADA requires that the regulation implementing 
title II with respect to communications be consistent with the 
Department's regulation implementing section 504 for its federally 
conducted programs and activities at 28 CFR part 39. Section 35.161, 
which is taken from Sec. 39.160(a)(2) of that regulation, requires the 
use of TDD's or equally effective telecommunication systems for 
communication with people who use TDD's. Of course, where relay 
services, such as those required by title IV of the ADA are available, a 
public entity may use those services to meet the requirements of this 
section.
    Many commenters were concerned that public entities should not rely 
heavily on the establishment of relay services. The commenters explained 
that while relay services would be of vast benefit to both public 
entities and individuals who use TDD's, the services are not sufficient 
to provide access to all telephone services. First, relay systems do not 
provide effective access to the increasingly popular automated systems 
that require the caller to respond by pushing a button on a touch tone 
phone. Second, relay systems cannot operate fast enough to convey 
messages on answering machines, or to permit a TDD user to leave a 
recorded message. Third, communication through relay systems may not be 
appropriate in cases of crisis lines pertaining to rape, domestic 
violence, child abuse, and drugs. The Department believes that it is 
more appropriate for the Federal Communications Commission to address 
these issues in its rulemaking under title IV.
    Some commenters requested that those entities with frequent contacts 
with clients who use TDD's have on-site TDD's to provide for direct 
communication between the entity and the individual. The Department 
encourages those entities that have extensive telephone contact with the 
public such as city halls, public libraries, and public aid offices, to 
have TDD's to insure more immediate access. Where the provision of 
telephone service is a major function of the entity, TDD's should be 
available.

              Section 35.162  Telephone Emergency Services

    Many public entities provide telephone emergency services by which 
individuals can seek immediate assistance from police, fire, ambulance, 
and other emergency services. These telephone emergency services--
including ``911'' services--are clearly an important public service 
whose reliability can be a matter of life or death. The legislative 
history of title II specifically reflects congressional intent that 
public entities must ensure that telephone emergency services, including 
911 services, be accessible to persons with impaired hearing and speech 
through telecommunication technology (Conference report at 67; Education 
and Labor report at 84-85).
    Proposed Sec. 35.162 mandated that public entities provide emergency 
telephone services to persons with disabilities that are ``functionally 
equivalent'' to voice services provided to others. Many commenters urged 
the Department to revise the section to make clear that direct access to 
telephone emergency services is required by title II of the ADA as 
indicated by the legislative history (Conference report at 67-68; 
Education and Labor report at 85). In response, the final rule mandates 
``direct access,'' instead of ``access that is functionally equivalent'' 
to that provided to all other telephone users. Telephone emergency 
access through a third party or through a relay service would not 
satisfy the requirement for direct access.
    Several commenters asked about a separate seven-digit emergency call 
number for the 911 services. The requirement for direct access disallows 
the use of a separate seven-digit number where 911 service is available. 
Separate seven-digit emergency call numbers would be unfamiliar to many 
individuals and also more burdensome to use. A standard emergency 911 
number is easier to remember and would save valuable time spent in 
searching in telephone books for a local seven-digit emergency number.
    Many commenters requested the establishment of minimum standards of 
service (e.g., the quantity and location of TDD's and computer modems 
needed in a given emergency center). Instead of establishing these 
scoping requirements, the Department has established a performance 
standard through the mandate for direct access.
    Section 35.162 requires public entities to take appropriate steps, 
including equipping

[[Page 489]]

their emergency systems with modern technology, as may be necessary to 
promptly receive and respond to a call from users of TDD's and computer 
modems. Entities are allowed the flexibility to determine what is the 
appropriate technology for their particular needs. In order to avoid 
mandating use of particular technologies that may become outdated, the 
Department has eliminated the references to the Baudot and ASCII formats 
in the proposed rule.
    Some commenters requested that the section require the installation 
of a voice amplification device on the handset of the dispatcher's 
telephone to amplify the dispatcher's voice. In an emergency, a person 
who has a hearing loss may be using a telephone that does not have an 
amplification device. Installation of speech amplification devices on 
the handsets of the dispatchers' telephones would respond to that 
situation. The Department encourages their use.
    Several commenters emphasized the need for proper maintenance of 
TDD's used in telephone emergency services. Section 35.133, which 
mandates maintenance of accessible features, requires public entities to 
maintain in operable working condition TDD's and other devices that 
provide direct access to the emergency system.

                 Section 35.163  Information and Signage

    Section 35.163(a) requires the public entity to provide information 
to individuals with disabilities concerning accessible services, 
activities, and facilities. Paragraph (b) requires the public entity to 
provide signage at all inaccessible entrances to each of its facilities 
that directs users to an accessible entrance or to a location with 
information about accessible facilities.
    Several commenters requested that, where TDD-equipped pay phones or 
portable TDD's exist, clear signage should be posted indicating the 
location of the TDD. The Department believes that this is required by 
paragraph (a). In addition, the Department recommends that, in large 
buildings that house TDD's, directional signage indicating the location 
of available TDD's should be placed adjacent to banks of telephones that 
do not contain a TDD.

                         Section 35.164  Duties

    Section 35.164, like paragraph (a)(3) of Sec. 35.150, is taken from 
the section 504 regulations for federally conducted programs. Like 
paragraph (a)(3), it limits the obligation of the public entity to 
ensure effective communication in accordance with Davis and the circuit 
court opinions interpreting it. It also includes specific requirements 
for determining the existence of undue financial and administrative 
burdens. The preamble discussion of Sec. 35.150(a) regarding that 
determination is applicable to this section and further explains the 
public entity's obligation to comply with Secs. 35.160-35.164. Because 
of the essential nature of the services provided by telephone emergency 
systems, the Department assumes that Sec. 35.164 will rarely be applied 
to Sec. 35.162.

                    Subpart F--Compliance Procedures

    Subpart F sets out the procedures for administrative enforcement of 
this part. Section 203 of the Act provides that the remedies, 
procedures, and rights set forth in section 505 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794a) for enforcement of section 504 of the 
Rehabilitation Act, which prohibits discrimination on the basis of 
handicap in programs and activities that receive Federal financial 
assistance, shall be the remedies, procedures, and rights for 
enforcement of title II. Section 505, in turn, incorporates by reference 
the remedies, procedures, and rights set forth in title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). Title VI, which 
prohibits discrimination on the basis of race, color, or national origin 
in federally assisted programs, is enforced by the Federal agencies that 
provide the Federal financial assistance to the covered programs and 
activities in question. If voluntary compliance cannot be achieved, 
Federal agencies enforce title VI either by the termination of Federal 
funds to a program that is found to discriminate, following an 
administrative hearing, or by a referral to this Department for judicial 
enforcement.
    Title II of the ADA extended the requirements of section 504 to all 
services, programs, and activities of State and local governments, not 
only those that receive Federal financial assistance. The House 
Committee on Education and Labor explained the enforcement provisions as 
follows:

    It is the Committee's intent that administrative enforcement of 
section 202 of the legislation should closely parallel the Federal 
government's experience with section 504 of the Rehabilitation Act of 
1973. The Attorney General should use section 504 enforcement procedures 
and the Department's coordination role under Executive Order 12250 as 
models for regulation in this area.
    The Committee envisions that the Department of Justice will identify 
appropriate Federal agencies to oversee compliance activities for State 
and local governments. As with section 504, these Federal agencies, 
including the Department of Justice, will receive, investigate, and 
where possible, resolve complaints of discrimination. If a Federal 
agency is unable to resolve a complaint by voluntary means, * * * the 
major enforcement sanction for the Federal government will be referral 
of cases by these Federal agencies to the Department of Justice.
    The Department of Justice may then proceed to file suits in Federal 
district court. As

[[Page 490]]

with section 504, there is also a private right of action for persons 
with disabilities, which includes the full panoply of remedies. Again, 
consistent with section 504, it is not the Committee's intent that 
persons with disabilities need to exhaust Federal administrative 
remedies before exercising their private right of action.

Education & Labor report at 98. See also S. Rep. No. 116, 101st Cong., 
1st Sess., at 57-58 (1989).
    Subpart F effectuates the congressional intent by deferring to 
section 504 procedures where those procedures are applicable, that is, 
where a Federal agency has jurisdiction under section 504 by virtue of 
its provision of Federal financial assistance to the program or activity 
in which the discrimination is alleged to have occurred. Deferral to the 
504 procedures also makes the sanction of fund termination available 
where necessary to achieve compliance. Because the Civil Rights 
Restoration Act (Pub. L. 100-259) extended the application of section 
504 to all of the operations of the public entity receiving the Federal 
financial assistance, many activities of State and local governments are 
already covered by section 504. The procedures in subpart F apply to 
complaints concerning services, programs, and activities of public 
entities that are covered by the ADA.
    Subpart G designates the Federal agencies responsible for enforcing 
the ADA with respect to specific components of State and local 
government. It does not, however, displace existing jurisdiction under 
section 504 of the various funding agencies. Individuals may still file 
discrimination complaints against recipients of Federal financial 
assistance with the agencies that provide that assistance, and the 
funding agencies will continue to process those complaints under their 
existing procedures for enforcing section 504. The substantive standards 
adopted in this part for title II of the ADA are generally the same as 
those required under section 504 for federally assisted programs, and 
public entities covered by the ADA are also covered by the requirements 
of section 504 to the extent that they receive Federal financial 
assistance. To the extent that title II provides greater protection to 
the rights of individuals with disabilities, however, the funding 
agencies will also apply the substantive requirements established under 
title II and this part in processing complaints covered by both this 
part and section 504, except that fund termination procedures may be 
used only for violations of section 504.
    Subpart F establishes the procedures to be followed by the agencies 
designated in subpart G for processing complaints against State and 
local government entities when the designated agency does not have 
jurisdiction under section 504.

                       Section 35.170  Complaints

    Section 35.170 provides that any individual who believes that he or 
she or a specific class of individuals has been subjected to 
discrimination on the basis of disability by a public entity may, by 
himself or herself or by an authorized representative, file a complaint 
under this part within 180 days of the date of the alleged 
discrimination, unless the time for filing is extended by the agency for 
good cause. Although Sec. 35.107 requires public entities that employ 50 
or more persons to establish grievance procedures for resolution of 
complaints, exhaustion of those procedures is not a prerequisite to 
filing a complaint under this section. If a complainant chooses to 
follow the public entity's grievance procedures, however, any resulting 
delay may be considered good cause for extending the time allowed for 
filing a complaint under this part.
    Filing the complaint with any Federal agency will satisfy the 
requirement for timely filing. As explained below, a complaint filed 
with an agency that has jurisdiction under section 504 will be processed 
under the agency's procedures for enforcing section 504.
    Some commenters objected to the complexity of allowing complaints to 
be filed with different agencies. The multiplicity of enforcement 
jurisdiction is the result of following the statutorily mandated 
enforcement scheme. The Department has, however, attempted to simplify 
procedures for complainants by making the Federal agency that receives 
the complaint responsible for referring it to an appropriate agency.
    The Department has also added a new paragraph (c) to this section 
providing that a complaint may be filed with any agency designated under 
subpart G of this part, or with any agency that provides funding to the 
public entity that is the subject of the complaint, or with the 
Department of Justice. Under Sec. 35.171(a)(2), the Department of 
Justice will refer complaints for which it does not have jurisdiction 
under section 504 to an agency that does have jurisdiction under section 
504, or to the agency designated under subpart G as responsible for 
complaints filed against the public entity that is the subject of the 
complaint or in the case of an employment complaint that is also subject 
to title I of the Act, to the Equal Employment Opportunity Commission. 
Complaints filed with the Department of Justice may be sent to the 
Coordination and Review Section, P.O. Box 66118, Civil Rights Division, 
U.S. Department of Justice, Washington, DC 20035-6118.

                Section 35.171  Acceptance of Complaints

    Section 35.171 establishes procedures for determining jurisdiction 
and responsibility for processing complaints against public entities. 
The final rule provides complainants

[[Page 491]]

an opportunity to file with the Federal funding agency of their choice. 
If that agency does not have jurisdiction under section 504, however, 
and is not the agency designated under subpart G as responsible for that 
public entity, the agency must refer the complaint to the Department of 
Justice, which will be responsible for referring it either to an agency 
that does have jurisdiction under section 504 or to the appropriate 
designated agency, or in the case of an employment complaint that is 
also subject to title I of the Act, to the Equal Employment Opportunity 
Commission.
    Whenever an agency receives a complaint over which it has 
jurisdiction under section 504, it will process the complaint under its 
section 504 procedures. When the agency designated under subpart G 
receives a complaint for which it does not have jurisdiction under 
section 504, it will treat the complaint as an ADA complaint under the 
procedures established in this subpart.
    Section 35.171 also describes agency responsibilities for the 
processing of employment complaints. As described in connection with 
Sec. 35.140, additional procedures regarding the coordination of 
employment complaints will be established in a coordination regulation 
issued by DOJ and EEOC. Agencies with jurisdiction under section 504 for 
complaints alleging employment discrimination also covered by title I 
will follow the procedures established by the coordination regulation 
for those complaints. Complaints covered by title I but not section 504 
will be referred to the EEOC, and complaints covered by this part but 
not title I will be processed under the procedures in this part.

                Section 35.172  Resolution of Complaints

    Section 35.172 requires the designated agency to either resolve the 
complaint or issue to the complainant and the public entity a Letter of 
Findings containing findings of fact and conclusions of law and a 
description of a remedy for each violation found.
    The Act requires the Department of Justice to establish 
administrative procedures for resolution of complaints, but does not 
require complainants to exhaust these administrative remedies. The 
Committee Reports make clear that Congress intended to provide a private 
right of action with the full panoply of remedies for individual victims 
of discrimination. Because the Act does not require exhaustion of 
administrative remedies, the complainant may elect to proceed with a 
private suit at any time.

             Section 35.173  Voluntary Compliance Agreements

    Section 35.173 requires the agency to attempt to resolve all 
complaints in which it finds noncompliance through voluntary compliance 
agreements enforceable by the Attorney General.

                        Section 35.174  Referral

    Section 35.174 provides for referral of the matter to the Department 
of Justice if the agency is unable to obtain voluntary compliance.

                     Section 35.175  Attorney's Fees

    Section 35.175 states that courts are authorized to award attorneys 
fees, including litigation expenses and costs, as provided in section 
505 of the Act. Litigation expenses include items such as expert witness 
fees, travel expenses, etc. The Judiciary Committee Report specifies 
that such items are included under the rubric of ``attorneys fees'' and 
not ``costs'' so that such expenses will be assessed against a plaintiff 
only under the standard set forth in Christiansburg Garment Co. v. Equal 
Employment Opportunity Commission, 434 U.S. 412 (1978). (Judiciary 
report at 73.)

         Section 35.176  Alternative Means of Dispute Resolution

    Section 35.176 restates section 513 of the Act, which encourages use 
of alternative means of dispute resolution.

    Section 35.177  Effect of Unavailability of Technical Assistance

    Section 35.177 explains that, as provided in section 506(e) of the 
Act, a public entity is not excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance.

                     Section 35.178  State Immunity

    Section 35.178 restates the provision of section 502 of the Act that 
a State is not immune under the eleventh amendment to the Constitution 
of the United States from an action in Federal or State court for 
violations of the Act, and that the same remedies are available for any 
such violations as are available in an action against an entity other 
than a State.

                     Subpart G--Designated Agencies

                   Section 35.190  Designated Agencies

    Subpart G designates the Federal agencies responsible for 
investigating complaints under this part. At least 26 agencies currently 
administer programs of Federal financial assistance that are subject to 
the nondiscrimination requirements of section 504 as well as other civil 
rights statutes. A majority of these agencies administer modest programs 
of Federal financial assistance and/or devote minimal resources 
exclusively to ``external'' civil rights enforcement activities. Under 
Executive Order 12250, the Department

[[Page 492]]

of Justice has encouraged the use of delegation agreements under which 
certain civil rights compliance responsibilities for a class of 
recipients funded by more than one agency are delegated by an agency or 
agencies to a ``lead'' agency. For example, many agencies that fund 
institutions of higher education have signed agreements that designate 
the Department of Education as the ``lead'' agency for this class of 
recipients.
    The use of delegation agreements reduces overlap and duplication of 
effort, and thereby strengthens overall civil rights enforcement. 
However, the use of these agreements to date generally has been limited 
to education and health care recipients. These classes of recipients are 
funded by numerous agencies and the logical connection to a lead agency 
is clear (e.g., the Department of Education for colleges and 
universities, and the Department of Health and Human Services for 
hospitals).
    The ADA's expanded coverage of State and local government operations 
further complicates the process of establishing Federal agency 
jurisdiction for the purpose of investigating complaints of 
discrimination on the basis of disability. Because all operations of 
public entities now are covered irrespective of the presence or absence 
of Federal financial assistance, many additional State and local 
government functions and organizations now are subject to Federal 
jurisdiction. In some cases, there is no historical or single clear-cut 
subject matter relationship with a Federal agency as was the case in the 
education example described above. Further, the 33,000 governmental 
jurisdictions subject to the ADA differ greatly in their organization, 
making a detailed and workable division of Federal agency jurisdiction 
by individual State, county, or municipal entity unrealistic.
    This regulation applies the delegation concept to the investigation 
of complaints of discrimination on the basis of disability by public 
entities under the ADA. It designates eight agencies, rather than all 
agencies currently administering programs of Federal financial 
assistance, as responsible for investigating complaints under this part. 
These ``designated agencies'' generally have the largest civil rights 
compliance staffs, the most experience in complaint investigations and 
disability issues, and broad yet clear subject area responsibilities. 
This division of responsibilities is made functionally rather than by 
public entity type or name designation. For example, all entities 
(regardless of their title) that exercise responsibilities, regulate, or 
administer services or programs relating to lands and natural resources 
fall within the jurisdiction of the Department of Interior.
    Complaints under this part will be investigated by the designated 
agency most closely related to the functions exercised by the 
governmental component against which the complaint is lodged. For 
example, a complaint against a State medical board, where such a board 
is a recognizable entity, will be investigated by the Department of 
Health and Human Services (the designated agency for regulatory 
activities relating to the provision of health care), even if the board 
is part of a general umbrella department of planning and regulation (for 
which the Department of Justice is the designated agency). If two or 
more agencies have apparent responsibility over a complaint, 
Sec. 35.190(c) provides that the Assistant Attorney General shall 
determine which one of the agencies shall be the designated agency for 
purposes of that complaint.
    Thirteen commenters, including four proposed designated agencies, 
addressed the Department of Justice's identification in the proposed 
regulation of nine ``designated agencies'' to investigate complaints 
under this part. Most comments addressed the proposed specific 
delegations to the various individual agencies. The Department of 
Justice agrees with several commenters who pointed out that 
responsibility for ``historic and cultural preservation'' functions 
appropriately belongs with the Department of Interior rather than the 
Department of Education. The Department of Justice also agrees with the 
Department of Education that ``museums'' more appropriately should be 
delegated to the Department of Interior, and that ``preschool and 
daycare programs'' more appropriately should be assigned to the 
Department of Health and Human Services, rather than to the Department 
of Education. The final rule reflects these decisions.
    The Department of Commerce opposed its listing as the designated 
agency for ``commerce and industry, including general economic 
development, banking and finance, consumer protection, insurance, and 
small business''. The Department of Commerce cited its lack of a 
substantial existing section 504 enforcement program and experience with 
many of the specific functions to be delegated. The Department of 
Justice accedes to the Department of Commerce's position, and has 
assigned itself as the designated agency for these functions.
    In response to a comment from the Department of Health and Human 
Services, the regulation's category of ``medical and nursing schools'' 
has been clarified to read ``schools of medicine, dentistry, nursing, 
and other health-related fields''. Also in response to a comment from 
the Department of Health and Human Services, ``correctional 
institutions'' have been specifically added to the public safety and 
administration of justice functions assigned to the Department of 
Justice.
    The regulation also assigns the Department of Justice as the 
designated agency responsible for all State and local government 
functions not assigned to other designated

[[Page 493]]

agencies. The Department of Justice, under an agreement with the 
Department of the Treasury, continues to receive and coordinate the 
investigation of complaints filed under the Revenue Sharing Act. This 
entitlement program, which was terminated in 1986, provided civil rights 
compliance jurisdiction for a wide variety of complaints regarding the 
use of Federal funds to support various general activities of local 
governments. In the absence of any similar program of Federal financial 
assistance administered by another Federal agency, placement of 
designated agency responsibilities for miscellaneous and otherwise 
undesignated functions with the Department of Justice is an appropriate 
continuation of current practice.
    The Department of Education objected to the proposed rule's 
inclusion of the functional area of ``arts and humanities'' within its 
responsibilities, and the Department of Housing and Urban Development 
objected to its proposed designation as responsible for activities 
relating to rent control, the real estate industry, and housing code 
enforcement. The Department has deleted these areas from the lists 
assigned to the Departments of Education and Housing and Urban 
Development, respectively, and has added a new paragraph (c) to 
Sec. 35.190, which provides that the Department of Justice may assign 
responsibility for components of State or local governments that 
exercise responsibilities, regulate, or administer services, programs, 
or activities relating to functions not assigned to specific designated 
agencies by paragraph (b) of this section to other appropriate agencies. 
The Department believes that this approach will provide more flexibility 
in determining the appropriate agency for investigation of complaints 
involving those components of State and local governments not 
specifically addressed by the listings in paragraph (b). As provided in 
Secs. 35.170 and 35.171, complaints filed with the Department of Justice 
will be referred to the appropriate agency.
    Several commenters proposed a stronger role for the Department of 
Justice, especially with respect to the receipt and assignment of 
complaints, and the overall monitoring of the effectiveness of the 
enforcement activities of Federal agencies. As discussed above, 
Secs. 35.170 and 35.171 have been revised to provide for referral of 
complaints by the Department of Justice to appropriate enforcement 
agencies. Also, language has been added to Sec. 35.190(a) of the final 
regulation stating that the Assistant Attorney General shall provide 
policy guidance and interpretations to designated agencies to ensure the 
consistent and effective implementation of this part.



PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES--Table of Contents




                           Subpart A--General

Sec.
36.101  Purpose.
36.102  Application.
36.103  Relationship to other laws.
36.104  Definitions.
36.105--36.199  [Reserved]

                     Subpart B--General Requirements

36.201  General.
36.202  Activities.
36.203  Integrated settings.
36.204  Administrative methods.
36.205  Association.
36.206  Retaliation or coercion.
36.207  Places of public accommodations located in private residences.
36.208  Direct threat.
36.209  Illegal use of drugs.
36.210  Smoking.
36.211  Maintenance of accessible features.
36.212  Insurance.
36.213  Relationship of subpart B to subparts C and D of this part.
36.214--36.299  [Reserved]

                    Subpart C--Specific Requirements

36.301  Eligibility criteria.
36.302  Modifications in policies, practices, or procedures.
36.303  Auxiliary aids and services.
36.304  Removal of barriers.
36.305  Alternatives to barrier removal.
36.306  Personal devices and services.
36.307  Accessible or special goods.
36.308  Seating in assembly areas.
36.309  Examinations and courses.
36.310  Transportation provided by public accommodations.
36.311--36.399  [Reserved]

               Subpart D--New Construction and Alterations

36.401  New construction.
36.402  Alterations.
36.403  Alterations: Path of travel.
36.404  Alterations: Elevator exemption.
36.405  Alterations: Historic preservation.
36.406  Standards for new construction and alterations.
36.407  Temporary suspension of certain detectable warning requirements.
36.408--36.499  [Reserved]

                         Subpart E--Enforcement

36.501  Private suits.

[[Page 494]]

36.502  Investigations and compliance reviews.
36.503  Suit by the Attorney General.
36.504  Relief.
36.505  Attorneys fees.
36.506  Alternative means of dispute resolution.
36.507  Effect of unavailability of technical assistance.
36.508  Effective date.
36.509--36.599  [Reserved]

     Subpart F--Certification of State Laws or Local Building Codes

36.601  Definitions.
36.602  General rule.
36.603  Filing a request for certification.
36.604  Preliminary determination.
36.605  Procedure following preliminary determination of equivalency.
36.606  Procedure following preliminary denial of certification.
36.607  Effect of certification.
36.608  Guidance concerning model codes.

Appendix A to Part 36--Standards for Accessible Design
Appendix B to Part 36--Preamble to Regulation on Nondiscrimination on 
          the Basis of Disability by Public Accommodations and in 
          Commercial Facilities (Published July 26, 1991)

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).

    Source: Order No. 1513-91, 56 FR 35592, July 26, 1991, unless 
otherwise noted.



                           Subpart A--General



Sec. 36.101  Purpose.

    The purpose of this part is to implement title III of the Americans 
with Disabilities Act of 1990 (42 U.S.C. 12181), which prohibits 
discrimination on the basis of disability by public accommodations and 
requires places of public accommodation and commercial facilities to be 
designed, constructed, and altered in compliance with the accessibility 
standards established by this part.



Sec. 36.102  Application.

    (a) General. This part applies to any--
    (1) Public accommodation;
    (2) Commercial facility; or
    (3) Private entity that offers examinations or courses related to 
applications, licensing, certification, or credentialing for secondary 
or postsecondary education, professional, or trade purposes.
    (b) Public accommodations. (1) The requirements of this part 
applicable to public accommodations are set forth in subparts B, C, and 
D of this part.
    (2) The requirements of subparts B and C of this part obligate a 
public accommodation only with respect to the operations of a place of 
public accommodation.
    (3) The requirements of subpart D of this part obligate a public 
accommodation only with respect to--
    (i) A facility used as, or designed or constructed for use as, a 
place of public accommodation; or
    (ii) A facility used as, or designed and constructed for use as, a 
commercial facility.
    (c) Commercial facilities. The requirements of this part applicable 
to commercial facilities are set forth in subpart D of this part.
    (d) Examinations and courses. The requirements of this part 
applicable to private entities that offer examinations or courses as 
specified in paragraph (a) of this section are set forth in Sec. 36.309.
    (e) Exemptions and exclusions. This part does not apply to any 
private club (except to the extent that the facilities of the private 
club are made available to customers or patrons of a place of public 
accommodation), or to any religious entity or public entity.



Sec. 36.103  Relationship to other laws.

    (a) Rule of interpretation. Except as otherwise provided in this 
part, this part shall not be construed to apply a lesser standard than 
the standards applied under title V of the Rehabilitation Act of 1973 
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant 
to that title.
    (b) Section 504. This part does not affect the obligations of a 
recipient of Federal financial assistance to comply with the 
requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 
794) and regulations issued by Federal agencies implementing section 
504.
    (c) Other laws. This part does not invalidate or limit the remedies, 
rights, and procedures of any other Federal laws, or State or local laws 
(including State common law) that provide greater or equal protection 
for the rights of

[[Page 495]]

individuals with disabilities or individuals associated with them.



Sec. 36.104  Definitions.

    For purposes of this part, the term--
    Act means the Americans with Disabilities Act of 1990 (Pub. L. 101-
336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
    Commerce means travel, trade, traffic, commerce, transportation, or 
communication--
    (1) Among the several States;
    (2) Between any foreign country or any territory or possession and 
any State; or
    (3) Between points in the same State but through another State or 
foreign country.
    Commercial facilities means facilities--
    (1) Whose operations will affect commerce;
    (2) That are intended for nonresidential use by a private entity; 
and
    (3) That are not--
    (i) Facilities that are covered or expressly exempted from coverage 
under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-3631);
    (ii) Aircraft; or
    (iii) Railroad locomotives, railroad freight cars, railroad 
cabooses, commuter or intercity passenger rail cars (including coaches, 
dining cars, sleeping cars, lounge cars, and food service cars), any 
other railroad cars described in section 242 of the Act or covered under 
title II of the Act, or railroad rights-of-way. For purposes of this 
definition, ``rail'' and ``railroad'' have the meaning given the term 
``railroad'' in section 202(e) of the Federal Railroad Safety Act of 
1970 (45 U.S.C. 431(e)).
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1) The phrase physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine;
    (ii) Any mental or psychological disorder such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (iii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism;
    (iv) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a private entity as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a private entity as having such an 
impairment.
    (5) The term disability does not include--

[[Page 496]]

    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, rolling stock or other conveyances, roads, walks, 
passageways, parking lots, or other real or personal property, including 
the site where the building, property, structure, or equipment is 
located.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    Individual with a disability means a person who has a disability. 
The term ``individual with a disability'' does not include an individual 
who is currently engaging in the illegal use of drugs, when the private 
entity acts on the basis of such use.
    Place of public accommodation means a facility, operated by a 
private entity, whose operations affect commerce and fall within at 
least one of the following categories--
    (1) An inn, hotel, motel, or other place of lodging, except for an 
establishment located within a building that contains not more than five 
rooms for rent or hire and that is actually occupied by the proprietor 
of the establishment as the residence of the proprietor;
    (2) A restaurant, bar, or other establishment serving food or drink;
    (3) A motion picture house, theater, concert hall, stadium, or other 
place of exhibition or entertainment;
    (4) An auditorium, convention center, lecture hall, or other place 
of public gathering;
    (5) A bakery, grocery store, clothing store, hardware store, 
shopping center, or other sales or rental establishment;
    (6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, 
travel service, shoe repair service, funeral parlor, gas station, office 
of an accountant or lawyer, pharmacy, insurance office, professional 
office of a health care provider, hospital, or other service 
establishment;
    (7) A terminal, depot, or other station used for specified public 
transportation;
    (8) A museum, library, gallery, or other place of public display or 
collection;
    (9) A park, zoo, amusement park, or other place of recreation;
    (10) A nursery, elementary, secondary, undergraduate, or 
postgraduate private school, or other place of education;
    (11) A day care center, senior citizen center, homeless shelter, 
food bank, adoption agency, or other social service center 
establishment; and
    (12) A gymnasium, health spa, bowling alley, golf course, or other 
place of exercise or recreation.
    Private club means a private club or establishment exempted from 
coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 
2000a(e)).
    Private entity means a person or entity other than a public entity.
    Public accommodation means a private entity that owns, leases (or 
leases to), or operates a place of public accommodation.
    Public entity means--
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act). (45 U.S.C. 541)
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately and impartially both receptively and 
expressively, using any necessary specialized vocabulary.

[[Page 497]]

    Readily achievable means easily accomplishable and able to be 
carried out without much difficulty or expense. In determining whether 
an action is readily achievable factors to be considered include--
    (1) The nature and cost of the action needed under this part;
    (2) The overall financial resources of the site or sites involved in 
the action; the number of persons employed at the site; the effect on 
expenses and resources; legitimate safety requirements that are 
necessary for safe operation, including crime prevention measures; or 
the impact otherwise of the action upon the operation of the site;
    (3) The geographic separateness, and the administrative or fiscal 
relationship of the site or sites in question to any parent corporation 
or entity;
    (4) If applicable, the overall financial resources of any parent 
corporation or entity; the overall size of the parent corporation or 
entity with respect to the number of its employees; the number, type, 
and location of its facilities; and
    (5) If applicable, the type of operation or operations of any parent 
corporation or entity, including the composition, structure, and 
functions of the workforce of the parent corporation or entity.
    Religious entity means a religious organization, including a place 
of worship.
    Service animal means any guide dog, signal dog, or other animal 
individually trained to do work or perform tasks for the benefit of an 
individual with a disability, including, but not limited to, guiding 
individuals with impaired vision, alerting individuals with impaired 
hearing to intruders or sounds, providing minimal protection or rescue 
work, pulling a wheelchair, or fetching dropped items.
    Specified public transportation means transportation by bus, rail, 
or any other conveyance (other than by aircraft) that provides the 
general public with general or special service (including charter 
service) on a regular and continuing basis.
    State means each of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin 
Islands, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands.
    Undue burden means significant difficulty or expense. In determining 
whether an action would result in an undue burden, factors to be 
considered include--
    (1) The nature and cost of the action needed under this part;
    (2) The overall financial resources of the site or sites involved in 
the action; the number of persons employed at the site; the effect on 
expenses and resources; legitimate safety requirements that are 
necessary for safe operation, including crime prevention measures; or 
the impact otherwise of the action upon the operation of the site;
    (3) The geographic separateness, and the administrative or fiscal 
relationship of the site or sites in question to any parent corporation 
or entity;
    (4) If applicable, the overall financial resources of any parent 
corporation or entity; the overall size of the parent corporation or 
entity with respect to the number of its employees; the number, type, 
and location of its facilities; and
    (5) If applicable, the type of operation or operations of any parent 
corporation or entity, including the composition, structure, and 
functions of the workforce of the parent corporation or entity.
Secs. 36.105--36.199  [Reserved]



                     Subpart B--General Requirements



Sec. 36.201   General.

    (a) Prohibition of discrimination. No individual shall be 
discriminated against on the basis of disability in the full and equal 
enjoyment of the goods, services, facilities, privileges, advantages, or 
accommodations of any place of public accommodation by any private 
entity who owns, leases (or leases to), or operates a place of public 
accommodation.
    (b) Landlord and tenant responsibilities. Both the landlord who owns 
the building that houses a place of public accommodation and the tenant 
who

[[Page 498]]

owns or operates the place of public accommodation are public 
accommodations subject to the requirements of this part. As between the 
parties, allocation of responsibility for complying with the obligations 
of this part may be determined by lease or other contract.



Sec. 36.202  Activities.

    (a) Denial of participation. A public accommodation shall not 
subject an individual or class of individuals on the basis of a 
disability or disabilities of such individual or class, directly, or 
through contractual, licensing, or other arrangements, to a denial of 
the opportunity of the individual or class to participate in or benefit 
from the goods, services, facilities, privileges, advantages, or 
accommodations of a place of public accommodation.
    (b) Participation in unequal benefit. A public accommodation shall 
not afford an individual or class of individuals, on the basis of a 
disability or disabilities of such individual or class, directly, or 
through contractual, licensing, or other arrangements, with the 
opportunity to participate in or benefit from a good, service, facility, 
privilege, advantage, or accommodation that is not equal to that 
afforded to other individuals.
    (c) Separate benefit. A public accommodation shall not provide an 
individual or class of individuals, on the basis of a disability or 
disabilities of such individual or class, directly, or through 
contractual, licensing, or other arrangements with a good, service, 
facility, privilege, advantage, or accommodation that is different or 
separate from that provided to other individuals, unless such action is 
necessary to provide the individual or class of individuals with a good, 
service, facility, privilege, advantage, or accommodation, or other 
opportunity that is as effective as that provided to others.
    (d) Individual or class of individuals. For purposes of paragraphs 
(a) through (c) of this section, the term ``individual or class of 
individuals'' refers to the clients or customers of the public 
accommodation that enters into the contractual, licensing, or other 
arrangement.



Sec. 36.203   Integrated settings.

    (a) General. A public accommodation shall afford goods, services, 
facilities, privileges, advantages, and accommodations to an individual 
with a disability in the most integrated setting appropriate to the 
needs of the individual.
    (b) Opportunity to participate. Notwithstanding the existence of 
separate or different programs or activities provided in accordance with 
this subpart, a public accommodation shall not deny an individual with a 
disability an opportunity to participate in such programs or activities 
that are not separate or different.
    (c) Accommodations and services. (1) Nothing in this part shall be 
construed to require an individual with a disability to accept an 
accommodation, aid, service, opportunity, or benefit available under 
this part that such individual chooses not to accept.
    (2) Nothing in the Act or this part authorizes the representative or 
guardian of an individual with a disability to decline food, water, 
medical treatment, or medical services for that individual.



Sec. 36.204  Administrative methods.

    A public accommodation shall not, directly or through contractual or 
other arrangements, utilize standards or criteria or methods of 
administration that have the effect of discriminating on the basis of 
disability, or that perpetuate the discrimination of others who are 
subject to common administrative control.



Sec. 36.205  Association.

    A public accommodation shall not exclude or otherwise deny equal 
goods, services, facilities, privileges, advantages, accommodations, or 
other opportunities to an individual or entity because of the known 
disability of an individual with whom the individual or entity is known 
to have a relationship or association.



Sec. 36.206   Retaliation or coercion.

    (a) No private or public entity shall discriminate against any 
individual because that individual has opposed any act or practice made 
unlawful by this part, or because that individual made a

[[Page 499]]

charge, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under the Act or this part.
    (b) No private or public entity shall coerce, intimidate, threaten, 
or interfere with any individual in the exercise or enjoyment of, or on 
account of his or her having exercised or enjoyed, or on account of his 
or her having aided or encouraged any other individual in the exercise 
or enjoyment of, any right granted or protected by the Act or this part.
    (c) Illustrations of conduct prohibited by this section include, but 
are not limited to:
    (1) Coercing an individual to deny or limit the benefits, services, 
or advantages to which he or she is entitled under the Act or this part;
    (2) Threatening, intimidating, or interfering with an individual 
with a disability who is seeking to obtain or use the goods, services, 
facilities, privileges, advantages, or accommodations of a public 
accommodation;
    (3) Intimidating or threatening any person because that person is 
assisting or encouraging an individual or group entitled to claim the 
rights granted or protected by the Act or this part to exercise those 
rights; or
    (4) Retaliating against any person because that person has 
participated in any investigation or action to enforce the Act or this 
part.



Sec. 36.207   Places of public accommodation located in private residences.

    (a) When a place of public accommodation is located in a private 
residence, the portion of the residence used exclusively as a residence 
is not covered by this part, but that portion used exclusively in the 
operation of the place of public accommodation or that portion used both 
for the place of public accommodation and for residential purposes is 
covered by this part.
    (b) The portion of the residence covered under paragraph (a) of this 
section extends to those elements used to enter the place of public 
accommodation, including the homeowner's front sidewalk, if any, the 
door or entryway, and hallways; and those portions of the residence, 
interior or exterior, available to or used by customers or clients, 
including restrooms.



Sec. 36.208  Direct threat.

    (a) This part does not require a public accommodation to permit an 
individual to participate in or benefit from the goods, services, 
facilities, privileges, advantages and accommodations of that public 
accommodation when that individual poses a direct threat to the health 
or safety of others.
    (b) Direct threat means a significant risk to the health or safety 
of others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision of auxiliary aids or 
services.
    (c) In determining whether an individual poses a direct threat to 
the health or safety of others, a public accommodation must make an 
individualized assessment, based on reasonable judgment that relies on 
current medical knowledge or on the best available objective evidence, 
to ascertain: the nature, duration, and severity of the risk; the 
probability that the potential injury will actually occur; and whether 
reasonable modifications of policies, practices, or procedures will 
mitigate the risk.



Sec. 36.209   Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) A public accommodation shall not discriminate on the basis of 
illegal use of drugs against an individual who is not engaging in 
current illegal use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and drug rehabilitation services. (1) A public 
accommodation shall not deny health services, or services provided in 
connection with drug rehabilitation, to an individual on the basis of 
that individual's current illegal use

[[Page 500]]

of drugs, if the individual is otherwise entitled to such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (c) Drug testing. (1) This part does not prohibit a public 
accommodation from adopting or administering reasonable policies or 
procedures, including but not limited to drug testing, designed to 
ensure that an individual who formerly engaged in the illegal use of 
drugs is not now engaging in current illegal use of drugs.
    (2) Nothing in this paragraph (c) shall be construed to encourage, 
prohibit, restrict, or authorize the conducting of testing for the 
illegal use of drugs.



Sec. 36.210   Smoking.

    This part does not preclude the prohibition of, or the imposition of 
restrictions on, smoking in places of public accommodation.



Sec. 36.211   Maintenance of accessible features.

    (a) A public accommodation shall maintain in operable working 
condition those features of facilities and equipment that are required 
to be readily accessible to and usable by persons with disabilities by 
the Act or this part.
    (b) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.



Sec. 36.212   Insurance.

    (a) This part shall not be construed to prohibit or restrict--
    (1) An insurer, hospital or medical service company, health 
maintenance organization, or any agent, or entity that administers 
benefit plans, or similar organizations from underwriting risks, 
classifying risks, or administering such risks that are based on or not 
inconsistent with State law; or
    (2) A person or organization covered by this part from establishing, 
sponsoring, observing or administering the terms of a bona fide benefit 
plan that are based on underwriting risks, classifying risks, or 
administering such risks that are based on or not inconsistent with 
State law; or
    (3) A person or organization covered by this part from establishing, 
sponsoring, observing or administering the terms of a bona fide benefit 
plan that is not subject to State laws that regulate insurance.
    (b) Paragraphs (a) (1), (2), and (3) of this section shall not be 
used as a subterfuge to evade the purposes of the Act or this part.
    (c) A public accommodation shall not refuse to serve an individual 
with a disability because its insurance company conditions coverage or 
rates on the absence of individuals with disabilities.



Sec. 36.213  Relationship of subpart B to subparts C and D of this part.

    Subpart B of this part sets forth the general principles of 
nondiscrimination applicable to all entities subject to this part. 
Subparts C and D of this part provide guidance on the application of the 
statute to specific situations. The specific provisions, including the 
limitations on those provisions, control over the general provisions in 
circumstances where both specific and general provisions apply.
Secs. 36.214--36.299  [Reserved]



                    Subpart C--Specific Requirements



Sec. 36.301  Eligibility criteria.

    (a) General. A public accommodation shall not impose or apply 
eligibility criteria that screen out or tend to screen out an individual 
with a disability or any class of individuals with disabilities from 
fully and equally enjoying any goods, services, facilities, privileges, 
advantages, or accommodations, unless such criteria can be shown to be 
necessary for the provision of the goods, services, facilities, 
privileges, advantages, or accommodations being offered.
    (b) Safety. A public accommodation may impose legitimate safety 
requirements that are necessary for safe operation. Safety requirements 
must be based on actual risks and not on mere speculation, stereotypes, 
or generalizations about individuals with disabilities.
    (c) Charges. A public accommodation may not impose a surcharge on a 
particular individual with a disability or

[[Page 501]]

any group of individuals with disabilities to cover the costs of 
measures, such as the provision of auxiliary aids, barrier removal, 
alternatives to barrier removal, and reasonable modifications in 
policies, practices, or procedures, that are required to provide that 
individual or group with the nondiscriminatory treatment required by the 
Act or this part.



Sec. 36.302  Modifications in policies, practices, or procedures.

    (a) General. A public accommodation shall make reasonable 
modifications in policies, practices, or procedures, when the 
modifications are necessary to afford goods, services, facilities, 
privileges, advantages, or accommodations to individuals with 
disabilities, unless the public accommodation can demonstrate that 
making the modifications would fundamentally alter the nature of the 
goods, services, facilities, privileges, advantages, or accommodations.
    (b) Specialties--(1) General. A public accommodation may refer an 
individual with a disability to another public accommodation, if that 
individual is seeking, or requires, treatment or services outside of the 
referring public accommodation's area of specialization, and if, in the 
normal course of its operations, the referring public accommodation 
would make a similar referral for an individual without a disability who 
seeks or requires the same treatment or services.
    (2) Illustration--medical specialties. A health care provider may 
refer an individual with a disability to another provider, if that 
individual is seeking, or requires, treatment or services outside of the 
referring provider's area of specialization, and if the referring 
provider would make a similar referral for an individual without a 
disability who seeks or requires the same treatment or services. A 
physician who specializes in treating only a particular condition cannot 
refuse to treat an individual with a disability for that condition, but 
is not required to treat the individual for a different condition.
    (c) Service animals--(1) General. Generally, a public accommodation 
shall modify policies, practices, or procedures to permit the use of a 
service animal by an individual with a disability.
    (2) Care or supervision of service animals. Nothing in this part 
requires a public accommodation to supervise or care for a service 
animal.
    (d) Check-out aisles. A store with check-out aisles shall ensure 
that an adequate number of accessible check-out aisles are kept open 
during store hours, or shall otherwise modify its policies and 
practices, in order to ensure that an equivalent level of convenient 
service is provided to individuals with disabilities as is provided to 
others. If only one check-out aisle is accessible, and it is generally 
used for express service, one way of providing equivalent service is to 
allow persons with mobility impairments to make all their purchases at 
that aisle.



Sec. 36.303  Auxiliary aids and services.

    (a) General. A public accommodation shall take those steps that may 
be necessary to ensure that no individual with a disability is excluded, 
denied services, segregated or otherwise treated differently than other 
individuals because of the absence of auxiliary aids and services, 
unless the public accommodation can demonstrate that taking those steps 
would fundamentally alter the nature of the goods, services, facilities, 
privileges, advantages, or accommodations being offered or would result 
in an undue burden, i.e., significant difficulty or expense.
    (b) Examples. The term ``auxiliary aids and services'' includes--
    (1) Qualified interpreters, notetakers, computer-aided transcription 
services, written materials, telephone handset amplifiers, assistive 
listening devices, assistive listening systems, telephones compatible 
with hearing aids, closed caption decoders, open and closed captioning, 
telecommunications devices for deaf persons (TDD's), videotext displays, 
or other effective methods of making aurally delivered materials 
available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered materials available to individuals with visual 
impairments;

[[Page 502]]

    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    (c) Effective communication. A public accommodation shall furnish 
appropriate auxiliary aids and services where necessary to ensure 
effective communication with individuals with disabilities.
    (d) Telecommunication devices for the deaf (TDD's). (1) A public 
accommodation that offers a customer, client, patient, or participant 
the opportunity to make outgoing telephone calls on more than an 
incidental convenience basis shall make available, upon request, a TDD 
for the use of an individual who has impaired hearing or a communication 
disorder.
    (2) This part does not require a public accommodation to use a TDD 
for receiving or making telephone calls incident to its operations.
    (e) Closed caption decoders. Places of lodging that provide 
televisions in five or more guest rooms and hospitals that provide 
televisions for patient use shall provide, upon request, a means for 
decoding captions for use by an individual with impaired hearing.
    (f) Alternatives. If provision of a particular auxiliary aid or 
service by a public accommodation would result in a fundamental 
alteration in the nature of the goods, services, facilities, privileges, 
advantages, or accommodations being offered or in an undue burden, i.e., 
significant difficulty or expense, the public accommodation shall 
provide an alternative auxiliary aid or service, if one exists, that 
would not result in an alteration or such burden but would nevertheless 
ensure that, to the maximum extent possible, individuals with 
disabilities receive the goods, services, facilities, privileges, 
advantages, or accommodations offered by the public accommodation.



Sec. 36.304  Removal of barriers.

    (a) General. A public accommodation shall remove architectural 
barriers in existing facilities, including communication barriers that 
are structural in nature, where such removal is readily achievable, 
i.e., easily accomplishable and able to be carried out without much 
difficulty or expense.
    (b) Examples. Examples of steps to remove barriers include, but are 
not limited to, the following actions--
    (1) Installing ramps;
    (2) Making curb cuts in sidewalks and entrances;
    (3) Repositioning shelves;
    (4) Rearranging tables, chairs, vending machines, display racks, and 
other furniture;
    (5) Repositioning telephones;
    (6) Adding raised markings on elevator control buttons;
    (7) Installing flashing alarm lights;
    (8) Widening doors;
    (9) Installing offset hinges to widen doorways;
    (10) Eliminating a turnstile or providing an alternative accessible 
path;
    (11) Installing accessible door hardware;
    (12) Installing grab bars in toilet stalls;
    (13) Rearranging toilet partitions to increase maneuvering space;
    (14) Insulating lavatory pipes under sinks to prevent burns;
    (15) Installing a raised toilet seat;
    (16) Installing a full-length bathroom mirror;
    (17) Repositioning the paper towel dispenser in a bathroom;
    (18) Creating designated accessible parking spaces;
    (19) Installing an accessible paper cup dispenser at an existing 
inaccessible water fountain;
    (20) Removing high pile, low density carpeting; or
    (21) Installing vehicle hand controls.
    (c) Priorities. A public accommodation is urged to take measures to 
comply with the barrier removal requirements of this section in 
accordance with the following order of priorities.
    (1) First, a public accommodation should take measures to provide 
access to a place of public accommodation from public sidewalks, 
parking, or public transportation. These measures include, for example, 
installing an entrance ramp, widening entrances, and providing 
accessible parking spaces.
    (2) Second, a public accommodation should take measures to provide 
access to those areas of a place of public accommodation where goods and 
services are made available to the public. These

[[Page 503]]

measures include, for example, adjusting the layout of display racks, 
rearranging tables, providing Brailled and raised character signage, 
widening doors, providing visual alarms, and installing ramps.
    (3) Third, a public accommodation should take measures to provide 
access to restroom facilities. These measures include, for example, 
removal of obstructing furniture or vending machines, widening of doors, 
installation of ramps, providing accessible signage, widening of toilet 
stalls, and installation of grab bars.
    (4) Fourth, a public accommodation should take any other measures 
necessary to provide access to the goods, services, facilities, 
privileges, advantages, or accommodations of a place of public 
accommodation.
    (d) Relationship to alterations requirements of subpart D of this 
part. (1) Except as provided in paragraph (d)(2) of this section, 
measures taken to comply with the barrier removal requirements of this 
section shall comply with the applicable requirements for alterations in 
Sec. 36.402 and Secs. 36.404-36.406 of this part for the element being 
altered. The path of travel requirements of Sec. 36.403 shall not apply 
to measures taken solely to comply with the barrier removal requirements 
of this section.
    (2) If, as a result of compliance with the alterations requirements 
specified in paragraph (d)(1) of this section, the measures required to 
remove a barrier would not be readily achievable, a public accommodation 
may take other readily achievable measures to remove the barrier that do 
not fully comply with the specified requirements. Such measures include, 
for example, providing a ramp with a steeper slope or widening a doorway 
to a narrower width than that mandated by the alterations requirements. 
No measure shall be taken, however, that poses a significant risk to the 
health or safety of individuals with disabilities or others.
    (e) Portable ramps. Portable ramps should be used to comply with 
this section only when installation of a permanent ramp is not readily 
achievable. In order to avoid any significant risk to the health or 
safety of individuals with disabilities or others in using portable 
ramps, due consideration shall be given to safety features such as 
nonslip surfaces, railings, anchoring, and strength of materials.
    (f) Selling or serving space. The rearrangement of temporary or 
movable structures, such as furniture, equipment, and display racks is 
not readily achievable to the extent that it results in a significant 
loss of selling or serving space.
    (g) Limitation on barrier removal obligations. (1) The requirements 
for barrier removal under Sec. 36.304 shall not be interpreted to exceed 
the standards for alterations in subpart D of this part.
    (2) To the extent that relevant standards for alterations are not 
provided in subpart D of this part, then the requirements of Sec. 36.304 
shall not be interpreted to exceed the standards for new construction in 
subpart D of this part.
    (3) This section does not apply to rolling stock and other 
conveyances to the extent that Sec. 36.310 applies to rolling stock and 
other conveyances.



Sec. 36.305  Alternatives to barrier removal.

    (a) General. Where a public accommodation can demonstrate that 
barrier removal is not readily achievable, the public accommodation 
shall not fail to make its goods, services, facilities, privileges, 
advantages, or accommodations available through alternative methods, if 
those methods are readily achievable.
    (b) Examples. Examples of alternatives to barrier removal include, 
but are not limited to, the following actions--
    (1) Providing curb service or home delivery;
    (2) Retrieving merchandise from inaccessible shelves or racks;
    (3) Relocating activities to accessible locations;
    (c) Multiscreen cinemas. If it is not readily achievable to remove 
barriers to provide access by persons with mobility impairments to all 
of the theaters of a multiscreen cinema, the cinema shall establish a 
film rotation schedule that provides reasonable access for individuals 
who use wheelchairs to all films. Reasonable notice shall be provided to 
the public as to the location and time of accessible showings.

[[Page 504]]



Sec. 36.306  Personal devices and services.

    This part does not require a public accommodation to provide its 
customers, clients, or participants with personal devices, such as 
wheelchairs; individually prescribed devices, such as prescription 
eyeglasses or hearing aids; or services of a personal nature including 
assistance in eating, toileting, or dressing.



Sec. 36.307  Accessible or special goods.

    (a) This part does not require a public accommodation to alter its 
inventory to include accessible or special goods that are designed for, 
or facilitate use by, individuals with disabilities.
    (b) A public accommodation shall order accessible or special goods 
at the request of an individual with disabilities, if, in the normal 
course of its operation, it makes special orders on request for 
unstocked goods, and if the accessible or special goods can be obtained 
from a supplier with whom the public accommodation customarily does 
business.
    (c) Examples of accessible or special goods include items such as 
Brailled versions of books, books on audio cassettes, closed-captioned 
video tapes, special sizes or lines of clothing, and special foods to 
meet particular dietary needs.



Sec. 36.308  Seating in assembly areas.

    (a) Existing facilities. (1) To the extent that it is readily 
achievable, a public accommodation in assembly areas shall--
    (i) Provide a reasonable number of wheelchair seating spaces and 
seats with removable aisle-side arm rests; and
    (ii) Locate the wheelchair seating spaces so that they--
    (A) Are dispersed throughout the seating area;
    (B) Provide lines of sight and choice of admission prices comparable 
to those for members of the general public;
    (C) Adjoin an accessible route that also serves as a means of egress 
in case of emergency; and
    (D) Permit individuals who use wheelchairs to sit with family 
members or other companions.
    (2) If removal of seats is not readily achievable, a public 
accommodation shall provide, to the extent that it is readily achievable 
to do so, a portable chair or other means to permit a family member or 
other companion to sit with an individual who uses a wheelchair.
    (3) The requirements of paragraph (a) of this section shall not be 
interpreted to exceed the standards for alterations in subpart D of this 
part.
    (b) New construction and alterations. The provision and location of 
wheelchair seating spaces in newly constructed or altered assembly areas 
shall be governed by the standards for new construction and alterations 
in subpart D of this part.



Sec. 36.309  Examinations and courses.

    (a) General. Any private entity that offers examinations or courses 
related to applications, licensing, certification, or credentialing for 
secondary or postsecondary education, professional, or trade purposes 
shall offer such examinations or courses in a place and manner 
accessible to persons with disabilities or offer alternative accessible 
arrangements for such individuals.
    (b) Examinations. (1) Any private entity offering an examination 
covered by this section must assure that--
    (i) The examination is selected and administered so as to best 
ensure that, when the examination is administered to an individual with 
a disability that impairs sensory, manual, or speaking skills, the 
examination results accurately reflect the individual's aptitude or 
achievement level or whatever other factor the examination purports to 
measure, rather than reflecting the individual's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the examination purports to measure);
    (ii) An examination that is designed for individuals with impaired 
sensory, manual, or speaking skills is offered at equally convenient 
locations, as often, and in as timely a manner as are other 
examinations; and
    (iii) The examination is administered in facilities that are 
accessible to individuals with disabilities or alternative accessible 
arrangements are made.

[[Page 505]]

    (2) Required modifications to an examination may include changes in 
the length of time permitted for completion of the examination and 
adaptation of the manner in which the examination is given.
    (3) A private entity offering an examination covered by this section 
shall provide appropriate auxiliary aids for persons with impaired 
sensory, manual, or speaking skills, unless that private entity can 
demonstrate that offering a particular auxiliary aid would fundamentally 
alter the measurement of the skills or knowledge the examination is 
intended to test or would result in an undue burden. Auxiliary aids and 
services required by this section may include taped examinations, 
interpreters or other effective methods of making orally delivered 
materials available to individuals with hearing impairments, Brailled or 
large print examinations and answer sheets or qualified readers for 
individuals with visual impairments or learning disabilities, 
transcribers for individuals with manual impairments, and other similar 
services and actions.
    (4) Alternative accessible arrangements may include, for example, 
provision of an examination at an individual's home with a proctor if 
accessible facilities or equipment are unavailable. Alternative 
arrangements must provide comparable conditions to those provided for 
nondisabled individuals.
    (c) Courses. (1) Any private entity that offers a course covered by 
this section must make such modifications to that course as are 
necessary to ensure that the place and manner in which the course is 
given are accessible to individuals with disabilities.
    (2) Required modifications may include changes in the length of time 
permitted for the completion of the course, substitution of specific 
requirements, or adaptation of the manner in which the course is 
conducted or course materials are distributed.
    (3) A private entity that offers a course covered by this section 
shall provide appropriate auxiliary aids and services for persons with 
impaired sensory, manual, or speaking skills, unless the private entity 
can demonstrate that offering a particular auxiliary aid or service 
would fundamentally alter the course or would result in an undue burden. 
Auxiliary aids and services required by this section may include taped 
texts, interpreters or other effective methods of making orally 
delivered materials available to individuals with hearing impairments, 
Brailled or large print texts or qualified readers for individuals with 
visual impairments and learning disabilities, classroom equipment 
adapted for use by individuals with manual impairments, and other 
similar services and actions.
    (4) Courses must be administered in facilities that are accessible 
to individuals with disabilities or alternative accessible arrangements 
must be made.
    (5) Alternative accessible arrangements may include, for example, 
provision of the course through videotape, cassettes, or prepared notes. 
Alternative arrangements must provide comparable conditions to those 
provided for nondisabled individuals.



Sec. 36.310  Transportation provided by public accommodations.

    (a) General. (1) A public accommodation that provides transportation 
services, but that is not primarily engaged in the business of 
transporting people, is subject to the general and specific provisions 
in subparts B, C, and D of this part for its transportation operations, 
except as provided in this section.
    (2) Examples. Transportation services subject to this section 
include, but are not limited to, shuttle services operated between 
transportation terminals and places of public accommodation, customer 
shuttle bus services operated by private companies and shopping centers, 
student transportation systems, and transportation provided within 
recreational facilities such as stadiums, zoos, amusement parks, and ski 
resorts.
    (b) Barrier removal. A public accommodation subject to this section 
shall remove transportation barriers in existing vehicles and rail 
passenger cars used for transporting individuals (not including barriers 
that can only be removed through the retrofitting of vehicles or rail 
passenger cars by the installation of a hydraulic or other lift) where 
such removal is readily achievable.

[[Page 506]]

    (c) Requirements for vehicles and systems. A public accommodation 
subject to this section shall comply with the requirements pertaining to 
vehicles and transportation systems in the regulations issued by the 
Secretary of Transportation pursuant to section 306 of the Act.
Secs. 36.311--36.399  [Reserved]



               Subpart D--New Construction and Alterations



Sec. 36.401   New construction.

    (a) General. (1) Except as provided in paragraphs (b) and (c) of 
this section, discrimination for purposes of this part includes a 
failure to design and construct facilities for first occupancy after 
January 26, 1993, that are readily accessible to and usable by 
individuals with disabilities.
    (2) For purposes of this section, a facility is designed and 
constructed for first occupancy after January 26, 1993, only--
    (i) If the last application for a building permit or permit 
extension for the facility is certified to be complete, by a State, 
County, or local government after January 26, 1992 (or, in those 
jurisdictions where the government does not certify completion of 
applications, if the last application for a building permit or permit 
extension for the facility is received by the State, County, or local 
government after January 26, 1992); and
    (ii) If the first certificate of occupancy for the facility is 
issued after January 26, 1993.
    (b) Commercial facilities located in private residences. (1) When a 
commercial facility is located in a private residence, the portion of 
the residence used exclusively as a residence is not covered by this 
subpart, but that portion used exclusively in the operation of the 
commercial facility or that portion used both for the commercial 
facility and for residential purposes is covered by the new construction 
and alterations requirements of this subpart.
    (2) The portion of the residence covered under paragraph (b)(1) of 
this section extends to those elements used to enter the commercial 
facility, including the homeowner's front sidewalk, if any, the door or 
entryway, and hallways; and those portions of the residence, interior or 
exterior, available to or used by employees or visitors of the 
commercial facility, including restrooms.
    (c) Exception for structural impracticability. (1) Full compliance 
with the requirements of this section is not required where an entity 
can demonstrate that it is structurally impracticable to meet the 
requirements. Full compliance will be considered structurally 
impracticable only in those rare circumstances when the unique 
characteristics of terrain prevent the incorporation of accessibility 
features.
    (2) If full compliance with this section would be structurally 
impracticable, compliance with this section is required to the extent 
that it is not structurally impracticable. In that case, any portion of 
the facility that can be made accessible shall be made accessible to the 
extent that it is not structurally impracticable.
    (3) If providing accessibility in conformance with this section to 
individuals with certain disabilities (e.g., those who use wheelchairs) 
would be structurally impracticable, accessibility shall nonetheless be 
ensured to persons with other types of disabilities (e.g., those who use 
crutches or who have sight, hearing, or mental impairments) in 
accordance with this section.
    (d) Elevator exemption. (1) For purposes of this paragraph (d)--
    (i) Professional office of a health care provider means a location 
where a person or entity regulated by a State to provide professional 
services related to the physical or mental health of an individual makes 
such services available to the public. The facility housing the 
``professional office of a health care provider'' only includes floor 
levels housing at least one health care provider, or any floor level 
designed or intended for use by at least one health care provider.
    (ii) Shopping center or shopping mall means--
    (A) A building housing five or more sales or rental establishments; 
or
    (B) A series of buildings on a common site, either under common 
ownership or common control or developed either as one project or as a 
series of related

[[Page 507]]

projects, housing five or more sales or rental establishments. For 
purposes of this section, places of public accommodation of the types 
listed in paragraph (5) of the definition of ``place of public 
accommodation'' in section Sec. 36.104 are considered sales or rental 
establishments. The facility housing a ``shopping center or shopping 
mall'' only includes floor levels housing at least one sales or rental 
establishment, or any floor level designed or intended for use by at 
least one sales or rental establishment.
    (2) This section does not require the installation of an elevator in 
a facility that is less than three stories or has less than 3000 square 
feet per story, except with respect to any facility that houses one or 
more of the following:
    (i) A shopping center or shopping mall, or a professional office of 
a health care provider.
    (ii) A terminal, depot, or other station used for specified public 
transportation, or an airport passenger terminal. In such a facility, 
any area housing passenger services, including boarding and debarking, 
loading and unloading, baggage claim, dining facilities, and other 
common areas open to the public, must be on an accessible route from an 
accessible entrance.
    (3) The elevator exemption set forth in this paragraph (d) does not 
obviate or limit, in any way the obligation to comply with the other 
accessibility requirements established in paragraph (a) of this section. 
For example, in a facility that houses a shopping center or shopping 
mall, or a professional office of a health care provider, the floors 
that are above or below an accessible ground floor and that do not house 
sales or rental establishments or a professional office of a health care 
provider, must meet the requirements of this section but for the 
elevator.



Sec. 36.402  Alterations.

    (a) General. (1) Any alteration to a place of public accommodation 
or a commercial facility, after January 26, 1992, shall be made so as to 
ensure that, to the maximum extent feasible, the altered portions of the 
facility are readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs.
    (2) An alteration is deemed to be undertaken after January 26, 1992, 
if the physical alteration of the property begins after that date.
    (b) Alteration. For the purposes of this part, an alteration is a 
change to a place of public accommodation or a commercial facility that 
affects or could affect the usability of the building or facility or any 
part thereof.
    (1) Alterations include, but are not limited to, remodeling, 
renovation, rehabilitation, reconstruction, historic restoration, 
changes or rearrangement in structural parts or elements, and changes or 
rearrangement in the plan configuration of walls and full-height 
partitions. Normal maintenance, reroofing, painting or wallpapering, 
asbestos removal, or changes to mechanical and electrical systems are 
not alterations unless they affect the usability of the building or 
facility.
    (2) If existing elements, spaces, or common areas are altered, then 
each such altered element, space, or area shall comply with the 
applicable provisions of appendix A to this part.
    (c) To the maximum extent feasible. The phrase ``to the maximum 
extent feasible,'' as used in this section, applies to the occasional 
case where the nature of an existing facility makes it virtually 
impossible to comply fully with applicable accessibility standards 
through a planned alteration. In these circumstances, the alteration 
shall provide the maximum physical accessibility feasible. Any altered 
features of the facility that can be made accessible shall be made 
accessible. If providing accessibility in conformance with this section 
to individuals with certain disabilities (e.g., those who use 
wheelchairs) would not be feasible, the facility shall be made 
accessible to persons with other types of disabilities (e.g., those who 
use crutches, those who have impaired vision or hearing, or those who 
have other impairments).



Sec. 36.403  Alterations: Path of travel.

    (a) General. An alteration that affects or could affect the 
usability of or access to an area of a facility that contains a primary 
function shall be made so as to ensure that, to the maximum extent 
feasible, the path of travel to the altered area and the restrooms,

[[Page 508]]

telephones, and drinking fountains serving the altered area, are readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the cost and scope of such 
alterations is disproportionate to the cost of the overall alteration.
    (b) Primary function. A ``primary function'' is a major activity for 
which the facility is intended. Areas that contain a primary function 
include, but are not limited to, the customer services lobby of a bank, 
the dining area of a cafeteria, the meeting rooms in a conference 
center, as well as offices and other work areas in which the activities 
of the public accommodation or other private entity using the facility 
are carried out. Mechanical rooms, boiler rooms, supply storage rooms, 
employee lounges or locker rooms, janitorial closets, entrances, 
corridors, and restrooms are not areas containing a primary function.
    (c) Alterations to an area containing a primary function. (1) 
Alterations that affect the usability of or access to an area containing 
a primary function include, but are not limited to--
    (i) Remodeling merchandise display areas or employee work areas in a 
department store;
    (ii) Replacing an inaccessible floor surface in the customer service 
or employee work areas of a bank;
    (iii) Redesigning the assembly line area of a factory; or
    (iv) Installing a computer center in an accounting firm.
    (2) For the purposes of this section, alterations to windows, 
hardware, controls, electrical outlets, and signage shall not be deemed 
to be alterations that affect the usability of or access to an area 
containing a primary function.
    (d) Landlord/tenant: If a tenant is making alterations as defined in 
Sec. 36.402 that would trigger the requirements of this section, those 
alterations by the tenant in areas that only the tenant occupies do not 
trigger a path of travel obligation upon the landlord with respect to 
areas of the facility under the landlord's authority, if those areas are 
not otherwise being altered.
    (e) Path of travel. (1) A ``path of travel'' includes a continuous, 
unobstructed way of pedestrian passage by means of which the altered 
area may be approached, entered, and exited, and which connects the 
altered area with an exterior approach (including sidewalks, streets, 
and parking areas), an entrance to the facility, and other parts of the 
facility.
    (2) An accessible path of travel may consist of walks and sidewalks, 
curb ramps and other interior or exterior pedestrian ramps; clear floor 
paths through lobbies, corridors, rooms, and other improved areas; 
parking access aisles; elevators and lifts; or a combination of these 
elements.
    (3) For the purposes of this part, the term ``path of travel'' also 
includes the restrooms, telephones, and drinking fountains serving the 
altered area.
    (f) Disproportionality. (1) Alterations made to provide an 
accessible path of travel to the altered area will be deemed 
disproportionate to the overall alteration when the cost exceeds 20% of 
the cost of the alteration to the primary function area.
    (2) Costs that may be counted as expenditures required to provide an 
accessible path of travel may include:
    (i) Costs associated with providing an accessible entrance and an 
accessible route to the altered area, for example, the cost of widening 
doorways or installing ramps;
    (ii) Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
    (iii) Costs associated with providing accessible telephones, such as 
relocating the telephone to an accessible height, installing 
amplification devices, or installing a telecommunications device for 
deaf persons (TDD);
    (iv) Costs associated with relocating an inaccessible drinking 
fountain.
    (g) Duty to provide accessible features in the event of 
disproportionality. (1) When the cost of alterations necessary to make 
the path of travel to the altered area fully accessible is 
disproportionate to the cost of the overall alteration, the path of 
travel shall be made accessible to the extent that it can be made 
accessible without incurring disproportionate costs.
    (2) In choosing which accessible elements to provide, priority 
should be

[[Page 509]]

given to those elements that will provide the greatest access, in the 
following order:
    (i) An accessible entrance;
    (ii) An accessible route to the altered area;
    (iii) At least one accessible restroom for each sex or a single 
unisex restroom;
    (iv) Accessible telephones;
    (v) Accessible drinking fountains; and
    (vi) When possible, additional accessible elements such as parking, 
storage, and alarms.
    (h) Series of smaller alterations. (1) The obligation to provide an 
accessible path of travel may not be evaded by performing a series of 
small alterations to the area served by a single path of travel if those 
alterations could have been performed as a single undertaking.
    (2)(i) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alterations to the primary function areas 
on that path of travel during the preceding three year period shall be 
considered in determining whether the cost of making that path of travel 
accessible is disproportionate.
    (ii) Only alterations undertaken after January 26, 1992, shall be 
considered in determining if the cost of providing an accessible path of 
travel is disproportionate to the overall cost of the alterations.



Sec. 36.404  Alterations: Elevator exemption.

    (a) This section does not require the installation of an elevator in 
an altered facility that is less than three stories or has less than 
3,000 square feet per story, except with respect to any facility that 
houses a shopping center, a shopping mall, the professional office of a 
health care provider, a terminal, depot, or other station used for 
specified public transportation, or an airport passenger terminal.
    (1) For the purposes of this section, professional office of a 
health care provider means a location where a person or entity regulated 
by a State to provide professional services related to the physical or 
mental health of an individual makes such services available to the 
public. The facility that houses a professional office of a health care 
provider only includes floor levels housing by at least one health care 
provider, or any floor level designed or intended for use by at least 
one health care provider.
    (2) For the purposes of this section, shopping center or shopping 
mall means--
    (i) A building housing five or more sales or rental establishments; 
or
    (ii) A series of buildings on a common site, connected by a common 
pedestrian access route above or below the ground floor, that is either 
under common ownership or common control or developed either as one 
project or as a series of related projects, housing five or more sales 
or rental establishments. For purposes of this section, places of public 
accommodation of the types listed in paragraph (5) of the definition of 
place of public accommodation in Sec. 36.104 are considered sales or 
rental establishments. The facility housing a shopping center or 
shopping mall only includes floor levels housing at least one sales or 
rental establishment, or any floor level designed or intended for use by 
at least one sales or rental establishment.
    (b) The exemption provided in paragraph (a) of this section does not 
obviate or limit in any way the obligation to comply with the other 
accessibility requirements established in this subpart. For example, 
alterations to floors above or below the accessible ground floor must be 
accessible regardless of whether the altered facility has an elevator.



Sec. 36.405  Alterations: Historic preservation.

    (a) Alterations to buildings or facilities that are eligible for 
listing in the National Register of Historic Places under the National 
Historic Preservation Act (16 U.S.C. 470 et seq.), or are designated as 
historic under State or local law, shall comply to the maximum extent 
feasible with section 4.1.7 of appendix A to this part.

[[Page 510]]

    (b) If it is determined under the procedures set out in section 
4.1.7 of appendix A that it is not feasible to provide physical access 
to an historic property that is a place of public accommodation in a 
manner that will not threaten or destroy the historic significance of 
the building or facility, alternative methods of access shall be 
provided pursuant to the requirements of subpart C of this part.



Sec. 36.406  Standards for new construction and alterations.

    (a) New construction and alterations subject to this part shall 
comply with the standards for accessible design published as appendix A 
to this part (ADAAG).
    (b) The chart in the appendix to this section provides guidance to 
the user in reading appendix A to this part (ADAAG) together with 
subparts A through D of this part, when determining requirements for a 
particular facility.

                         Appendix to Sec. 36.406

    This chart has no effect for purposes of compliance or enforcement. 
It does not necessarily provide complete or mandatory information.

------------------------------------------------------------------------
                                     Subparts A-D            ADAAG      
------------------------------------------------------------------------
Application, General............  36.102(b)(3):       1, 2, 3, 4.1.1.   
                                   public                               
                                   accommodations.                      
                                  36.102(c):                            
                                   commercial                           
                                   facilities.                          
                                  36.102(e): public                     
                                   entities.                            
                                  36.103 (other                         
                                   laws).                               
                                  36.401 (``for                         
                                   first                                
                                   occupancy'').                        
                                  36.402(a)                             
                                   (alterations).                       
Definitions.....................  36.104: commercial  3.5 Definitions,  
                                   facilities,         including:       
                                   facility, place     addition,        
                                   of public           alteration,      
                                   accommodation,      building,        
                                   private club,       element,         
                                   public              facility, space, 
                                   accommodation,      story.           
                                   public entity,                       
                                   religious entity.                    
                                  36.401(d)(1)(ii),   4.1.6(j),         
                                   36.404(a)(2):       technical        
                                   shopping center     infeasibility.   
                                   or shopping mall.                    
                                  36.401(d)(1)(i),                      
                                   36.404(a)(1):                        
                                   professional                         
                                   office of a                          
                                   health care                          
                                   provider.                            
                                  36.402:                               
                                   alteration;                          
                                   usability.                           
                                  36.402(c): to the                     
                                   maximum extent                       
                                   feasible.                            
New Construction:...............  36.401(a) General.  4.1.2.            
General.........................  36.401(b)           4.1.3.            
                                   Commercial                           
                                   facilities in                        
                                   private                              
                                   residences.                          
                                  36.207 Places of                      
                                   public                               
                                   accommodation in                     
                                   private                              
                                   residences.                          
Work Areas......................  ..................  4.1.1(3).         
Structural Impracticability.....  36.401(c).........  4.1.1(5)(a).      
Elevator Exemption..............  36.401(d).........  4.1.3(5).         
                                  36.404............                    
Other Exceptions................  ..................  4.1.1(5), 4.1.3(5)
                                                       and throughout.  
Alterations: General............  36.401(b):                            
                                   commercial                           
                                   facilities in                        
                                   private                              
                                   residences.                          
                                  36.402............  4.1.6(1).         
Alterations Affecting an Area     36.403............  4.1.6(2).         
 Containing A Primary Function;                                         
 Path of Travel;                                                        
 Disproportionality.                                                    
Alterations: Special Technical    ..................  4.1.6(3).         
 Provisions.                                                            
Additions.......................  36.401-36.405.....  4.1.5.            
Historic Preservation...........  36.405............  4.1.7.            
Technical Provisions............  ..................  4.2 through 4.35. 
Restaurants and Cafeterias......  ..................  5.                
Medical Care Facilities.........  ..................  6.                
Business and Mercantile.........  ..................  7.                
Libraries.......................  ..................  8.                
Transient Lodging (Hotels,        ..................  9.                
 Homeless Shelters, Etc.).                                              
Transportation Facilities.......  ..................  10.               
------------------------------------------------------------------------


[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by Order No. 
1836-94, 59 FR 2675, Jan. 18, 1994]

[[Page 511]]



Sec. 36.407  Temporary suspension of certain detectable warning requirements.

    The detectable warning requirements contained in sections 4.7.7, 
4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily 
until July 26, 1998.

[Order No. 2043-96, 61 FR 39324, July 29, 1996]
Secs. 36.408--36.499  [Reserved]



                         Subpart E--Enforcement



Sec. 36.501  Private suits.

    (a) General. Any person who is being subjected to discrimination on 
the basis of disability in violation of the Act or this part or who has 
reasonable grounds for believing that such person is about to be 
subjected to discrimination in violation of section 303 of the Act or 
subpart D of this part may institute a civil action for preventive 
relief, including an application for a permanent or temporary 
injunction, restraining order, or other order. Upon timely application, 
the court may, in its discretion, permit the Attorney General to 
intervene in the civil action if the Attorney General or his or her 
designee certifies that the case is of general public importance. Upon 
application by the complainant and in such circumstances as the court 
may deem just, the court may appoint an attorney for such complainant 
and may authorize the commencement of the civil action without the 
payment of fees, costs, or security. Nothing in this section shall 
require a person with a disability to engage in a futile gesture if the 
person has actual notice that a person or organization covered by title 
III of the Act or this part does not intend to comply with its 
provisions.
    (b) Injunctive relief. In the case of violations of Sec. 36.304, 
Secs. 36.308, 36.310(b), 36.401, 36.402, 36.403, and 36.405 of this 
part, injunctive relief shall include an order to alter facilities to 
make such facilities readily accessible to and usable by individuals 
with disabilities to the extent required by the Act or this part. Where 
appropriate, injunctive relief shall also include requiring the 
provision of an auxiliary aid or service, modification of a policy, or 
provision of alternative methods, to the extent required by the Act or 
this part.



Sec. 36.502  Investigations and compliance reviews.

    (a) The Attorney General shall investigate alleged violations of the 
Act or this part.
    (b) Any individual who believes that he or she or a specific class 
of persons has been subjected to discrimination prohibited by the Act or 
this part may request the Department to institute an investigation.
    (c) Where the Attorney General has reason to believe that there may 
be a violation of this part, he or she may initiate a compliance review.



Sec. 36.503  Suit by the Attorney General.

    Following a compliance review or investigation under Sec. 36.502, or 
at any other time in his or her discretion, the Attorney General may 
commence a civil action in any appropriate United States district court 
if the Attorney General has reasonable cause to believe that--
    (a) Any person or group of persons is engaged in a pattern or 
practice of discrimination in violation of the Act or this part; or
    (b) Any person or group of persons has been discriminated against in 
violation of the Act or this part and the discrimination raises an issue 
of general public importance.



Sec. 36.504  Relief.

    (a) Authority of court. In a civil action under Sec. 36.503, the 
court--
    (1) May grant any equitable relief that such court considers to be 
appropriate, including, to the extent required by the Act or this part--
    (i) Granting temporary, preliminary, or permanent relief;
    (ii) Providing an auxiliary aid or service, modification of policy, 
practice, or procedure, or alternative method; and
    (iii) Making facilities readily accessible to and usable by 
individuals with disabilities;
    (2) May award other relief as the court considers to be appropriate, 
including monetary damages to persons aggrieved when requested by the 
Attorney General; and

[[Page 512]]

    (3) May, to vindicate the public interest, assess a civil penalty 
against the entity in an amount
    (i) Not exceeding $50,000 for a first violation; and
    (ii) Not exceeding $100,000 for any subsequent violation.
    (b) Single violation. For purposes of paragraph (a) (3) of this 
section, in determining whether a first or subsequent violation has 
occurred, a determination in a single action, by judgment or settlement, 
that the covered entity has engaged in more than one discriminatory act 
shall be counted as a single violation.
    (c) Punitive damages. For purposes of paragraph (a)(2) of this 
section, the terms ``monetary damages'' and ``such other relief'' do not 
include punitive damages.
    (d) Judicial consideration. In a civil action under Sec. 36.503, the 
court, when considering what amount of civil penalty, if any, is 
appropriate, shall give consideration to any good faith effort or 
attempt to comply with this part by the entity. In evaluating good 
faith, the court shall consider, among other factors it deems relevant, 
whether the entity could have reasonably anticipated the need for an 
appropriate type of auxiliary aid needed to accommodate the unique needs 
of a particular individual with a disability.



Sec. 36.505  Attorneys fees.

    In any action or administrative proceeding commenced pursuant to the 
Act or this part, the court or agency, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney's 
fee, including litigation expenses, and costs, and the United States 
shall be liable for the foregoing the same as a private individual.



Sec. 36.506  Alternative means of dispute resolution.

    Where appropriate and to the extent authorized by law, the use of 
alternative means of dispute resolution, including settlement 
negotiations, conciliation, facilitation, mediation, factfinding, 
minitrials, and arbitration, is encouraged to resolve disputes arising 
under the Act and this part.



Sec. 36.507  Effect of unavailability of technical assistance.

    A public accommodation or other private entity shall not be excused 
from compliance with the requirements of this part because of any 
failure to receive technical assistance, including any failure in the 
development or dissemination of any technical assistance manual 
authorized by the Act.



Sec. 36.508  Effective date.

    (a) General. Except as otherwise provided in this section and in 
this part, this part shall become effective on January 26, 1992.
    (b) Civil actions. Except for any civil action brought for a 
violation of section 303 of the Act, no civil action shall be brought 
for any act or omission described in section 302 of the Act that 
occurs--
    (1) Before July 26, 1992, against businesses with 25 or fewer 
employees and gross receipts of $1,000,000 or less.
    (2) Before January 26, 1993, against businesses with 10 or fewer 
employees and gross receipts of $500,000 or less.
    (c) Transportation services provided by public accommodations. Newly 
purchased or leased vehicles required to be accessible by Sec. 36.310 
must be readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, if the 
solicitation for the vehicle is made after August 25, 1990.
Secs. 36.509--36.599  [Reserved]



     Subpart F--Certification of State Laws or Local Building Codes



Sec. 36.601  Definitions.

    Assistant Attorney General means the Assistant Attorney General for 
Civil Rights or his or her designee.
    Certification of equivalency means a final certification that a code 
meets or exceeds the minimum requirements of title III of the Act for 
accessibility and usability of facilities covered by that title.
    Code means a State law or local building code or similar ordinance, 
or part thereof, that establishes accessibility requirements.
    Model code means a nationally recognized document developed by a 
private

[[Page 513]]

entity for use by State or local jurisdictions in developing codes as 
defined in this section. A model code is intended for incorporation by 
reference or adoption in whole or in part, with or without amendment, by 
State or local jurisdictions.
    Preliminary determination of equivalency means a preliminary 
determination that a code appears to meet or exceed the minimum 
requirements of title III of the Act for accessibility and usability of 
facilities covered by that title.
    Submitting official means the State or local official who--
    (1) Has principal responsibility for administration of a code, or is 
authorized to submit a code on behalf of a jurisdiction; and
    (2) Files a request for certification under this subpart.



Sec. 36.602  General rule.

    On the application of a State or local government, the Assistant 
Attorney General may certify that a code meets or exceeds the minimum 
requirements of the Act for the accessibility and usability of places of 
public accommodation and commercial facilities under this part by 
issuing a certification of equivalency. At any enforcement proceeding 
under title III of the Act, such certification shall be rebuttable 
evidence that such State law or local ordinance does meet or exceed the 
minimum requirements of title III.



Sec. 36.603  Filing request for certification.

    (a) A submitting official may file a request for certification of a 
code under this subpart.
    (b) Before filing a request for certification of a code, the 
submitting official shall ensure that--
    (1) Adequate public notice of intention to file a request for 
certification, notice of a hearing, and notice of the location at which 
the request and materials can be inspected is published within the 
relevant jurisdiction;
    (2) Copies of the proposed request and supporting materials are made 
available for public examination and copying at the office of the State 
or local agency charged with administration and enforcement of the code; 
and
    (3) The local or State jurisdiction holds a public hearing on the 
record, in the State or locality, at which the public is invited to 
comment on the proposed request for certification.
    (c) The submitting official shall include the following materials 
and information in support of the request:
    (1) The text of the jurisdiction's code; any standard, regulation, 
code, or other relevant document incorporated by reference or otherwise 
referenced in the code; the law creating and empowering the agency; any 
relevant manuals, guides, or any other interpretive information issued 
that pertain to the code; and any formal opinions of the State Attorney 
General or the chief legal officer of the jurisdiction that pertain to 
the code;
    (2) Any model code or statute on which the pertinent code is based, 
and an explanation of any differences between the model and the 
pertinent code;
    (3) A transcript of the public hearing required by paragraph (b)(3) 
of this section; and
    (4) Any additional information that the submitting official may wish 
to be considered.
    (d) The submitting official shall file the original and one copy of 
the request and of supporting materials with the Assistant Attorney 
General. The submitting official shall clearly label the request as a 
``request for certification'' of a code. A copy of the request and 
supporting materials will be available for public examination and 
copying at the offices of the Assistant Attorney General in Washington, 
DC. The submitting official shall ensure that copies of the request and 
supporting materials are available for public examination and copying at 
the office of the State or local agency charged with administration and 
enforcement of the code. The submitting official shall ensure that 
adequate public notice of the request for certification and of the 
location at which the request and materials can be inspected is 
published within the relevant jurisdiction.
    (e) Upon receipt of a request for certification, the Assistant 
Attorney General may request further information that he or she 
considers relevant to the

[[Page 514]]

determinations required to be made under this subpart.

(Approved by the Office of Management and Budget under control number 
1190-0005)

[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58 FR 
17522, Apr. 5, 1993]



Sec. 36.604  Preliminary determination.

    After consultation with the Architectural and Transportation 
Barriers Compliance Board, the Assistant Attorney General shall make a 
preliminary determination of equivalency or a preliminary determination 
to deny certification.



Sec. 36.605  Procedure following preliminary determination of equivalency.

    (a) If the Assistant Attorney General makes a preliminary 
determination of equivalency under Sec. 36.604, he or she shall inform 
the submitting official, in writing, of that preliminary determination. 
The Assistant Attorney General shall also--
    (1) Publish a notice in the Federal Register that advises the public 
of the preliminary determination of equivalency with respect to the 
particular code, and invite interested persons and organizations, 
including individuals with disabilities, during a period of at least 60 
days following publication of the notice, to file written comments 
relevant to whether a final certification of equivalency should be 
issued;
    (2) After considering the information received in response to the 
notice described in paragraph (a) of this section, and after publishing 
a separate notice in the Federal Register, hold an informal hearing in 
Washington, DC at which interested persons, including individuals with 
disabilities, are provided an opportunity to express their views with 
respect to the preliminary determination of equivalency; and
    (b) The Assistant Attorney General, after consultation with the 
Architectural and Transportation Barriers Compliance Board, and 
consideration of the materials and information submitted pursuant to 
this section and Sec. 36.603, shall issue either a certification of 
equivalency or a final determination to deny the request for 
certification. He or she shall publish notice of the certification of 
equivalency or denial of certification in the Federal Register.



Sec. 36.606  Procedure following preliminary denial of certification.

    (a) If the Assistant Attorney General makes a Preliminary 
determination to deny certification of a code under Sec. 36.604, he or 
she shall notify the submitting official of the determination. The 
notification may include specification of the manner in which the code 
could be amended in order to qualify for certification.
    (b) The Assistant Attorney General shall allow the submitting 
official not less than 15 days to submit data, views, and arguments in 
opposition to the preliminary determination to deny certification. If 
the submitting official does not submit materials, the Assistant 
Attorney General shall not be required to take any further action. If 
the submitting official submits materials, the Assistant Attorney 
General shall evaluate those materials and any other relevant 
information. After evaluation of any newly submitted materials, the 
Assistant Attorney General shall make either a final denial of 
certification or a preliminary determination of equivalency.



Sec. 36.607  Effect of certification.

    (a)(1) A certification shall be considered a certification of 
equivalency only with respect to those features or elements that are 
both covered by the certified code and addressed by the standards 
against which equivalency is measured.
    (2) For example, if certain equipment is not covered by the code, 
the determination of equivalency cannot be used as evidence with respect 
to the question of whether equipment in a building built according to 
the code satisfies the Act's requirements with respect to such 
equipment. By the same token, certification would not be relevant to 
construction of a facility for children, if the regulations against 
which equivalency is measured do not address children's facilities.
    (b) A certification of equivalency is effective only with respect to 
the particular edition of the code for which certification is granted. 
Any amendments or other changes to the code

[[Page 515]]

after the date of the certified edition are not considered part of the 
certification.
    (c) A submitting official may reapply for certification of 
amendments or other changes to a code that has already received 
certification.



Sec. 36.608  Guidance concerning model codes.

    Upon application by an authorized representative of a private entity 
responsible for developing a model code, the Assistant Attorney General 
may review the relevant model code and issue guidance concerning whether 
and in what respects the model code is consistent with the minimum 
requirements of the Act for the accessibility and usability of places of 
public accommodation and commercial facilities under this part.

         Appendix A to Part 36--Standards for Accessible Design

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[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58 FR 
17522, Apr. 5, 1993; Order No. 1836-94, 59 FR 2675, Jan. 18, 1994]

[[Page 607]]

 Appendix B to Part 36--Preamble to Regulation on Nondiscrimination on 
   the Basis of Disability by Public Accommodations and in Commercial 
                  Facilities (Published July 26, 1991)

    Note: For the convenience of the reader, this appendix contains the 
text of the preamble to the final regulation on nondiscrimination on the 
basis of disability by public accommodations and in commercial 
facilities beginning at the heading ``Section-by-Section Analysis and 
Response to Comments'' and ending before ``List of Subjects in 28 CFR 
part 36'' (56 FR 35546, July 26, 1991).

          Section-By-Section Analysis and Response to Comments

                           Subpart A--General

                         Section 36.101  Purpose

    Section 36.101 states the purpose of the rule, which is to 
effectuate title III of the Americans with Disabilities Act of 1990. 
This title prohibits discrimination on the basis of disability by public 
accommodations, requires places of public accommodation and commercial 
facilities to be designed, constructed, and altered in compliance with 
the accessibility standards established by this part, and requires that 
examinations or courses related to licensing or certification for 
professional or trade purposes be accessible to persons with 
disabilities.

                       Section 36.102  Application

    Section 36.102 specifies the range of entities and facilities that 
have obligations under the final rule. The rule applies to any public 
accommodation or commercial facility as those terms are defined in 
Sec. 36.104. It also applies, in accordance with section 309 of the ADA, 
to private entities that offer examinations or courses related to 
applications, licensing, certification, or credentialing for secondary 
or postsecondary education, professional, or trade purposes. Except as 
provided in Sec. 36.206, ``Retaliation or coercion,'' this part does not 
apply to individuals other than public accommodations or to public 
entities. Coverage of private individuals and public entities is 
discussed in the preamble to Sec. 36.206.
    As defined in Sec. 36.104, a public accommodation is a private 
entity that owns, leases or leases to, or operates a place of public 
accommodation. Section 36.102(b)(2) emphasizes that the general and 
specific public accommodations requirements of subparts B and C obligate 
a public accommodation only with respect to the operations of a place of 
public accommodation. This distinction is drawn in recognition of the 
fact that a private entity that meets the regulatory definition of 
public accommodation could also own, lease or lease to, or operate 
facilities that are not places of public accommodation. The rule would 
exceed the reach of the ADA if it were to apply the public 
accommodations requirements of subparts B and C to the operations of a 
private entity that do not involve a place of public accommodation. 
Similarly, Sec. 36.102(b)(3) provides that the new construction and 
alterations requirements of subpart D obligate a public accommodation 
only with respect to facilities used as, or designed or constructed for 
use as, places of public accommodation or commercial facilities.
    On the other hand, as mandated by the ADA and reflected in 
Sec. 36.102(c), the new construction and alterations requirements of 
subpart D apply to a commercial facility whether or not the facility is 
a place of public accommodation, or is owned, leased, leased to, or 
operated by a public accommodation.
    Section 36.102(e) states that the rule does not apply to any private 
club, religious entity, or public entity. Each of these terms is defined 
in Sec. 36.104. The exclusion of private clubs and religious entities is 
derived from section 307 of the ADA; and the exclusion of public 
entities is based on the statutory definition of public accommodation in 
section 301(7) of the ADA, which excludes entities other than private 
entities from coverage under title III of the ADA.

               Section 36.103  Relationship to Other Laws

    Section 36.103 is derived from sections 501 (a) and (b) of the ADA. 
Paragraph (a) provides that, except as otherwise specifically provided 
by this part, the ADA is not intended to apply lesser standards than are 
required under title V of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 790-794), or the regulations implementing that title. The 
standards of title V of the Rehabilitation Act apply for purposes of the 
ADA to the extent that the ADA has not explicitly adopted a different 
standard from title V. Where the ADA explicitly provides a different 
standard from section 504, the ADA standard applies to the ADA, but not 
to section 504. For example, section 504 requires that all federally 
assisted programs and activities be readily accessible to and usable by 
individuals with handicaps, even if major structural alterations are 
necessary to make a program accessible. Title III of the ADA, in 
contrast, only requires alterations to existing facilities if the 
modifications are ``readily achievable,'' that is, able to be 
accomplished easily and without much difficulty or expense. A public 
accommodation that is covered under both section 504 and the ADA is 
still required to meet the ``program accessibility'' standard in order 
to comply with section 504, but would not be in violation of the ADA 
unless

[[Page 608]]

it failed to make ``readily achievable'' modifications. On the other 
hand, an entity covered by the ADA is required to make ``readily 
achievable'' modifications, even if the program can be made accessible 
without any architectural modifications. Thus, an entity covered by both 
section 504 and title III of the ADA must meet both the ``program 
accessibility'' requirement and the ``readily achievable'' requirement.
    Paragraph (b) makes explicit that the rule does not affect the 
obligation of recipients of Federal financial assistance to comply with 
the requirements imposed under section 504 of the Rehabilitation Act of 
1973.
    Paragraph (c) makes clear that Congress did not intend to displace 
any of the rights or remedies provided by other Federal laws or other 
State or local laws (including State common law) that provide greater or 
equal protection to individuals with disabilities. A plaintiff may 
choose to pursue claims under a State law that does not confer greater 
substantive rights, or even confers fewer substantive rights, if the 
alleged violation is protected under the alternative law and the 
remedies are greater. For example, assume that a person with a physical 
disability seeks damages under a State law that allows compensatory and 
punitive damages for discrimination on the basis of physical disability, 
but does not allow them on the basis of mental disability. In that 
situation, the State law would provide narrower coverage, by excluding 
mental disabilities, but broader remedies, and an individual covered by 
both laws could choose to bring an action under both laws. Moreover, 
State tort claims confer greater remedies and are not preempted by the 
ADA. A plaintiff may join a State tort claim to a case brought under the 
ADA. In such a case, the plaintiff must, of course, prove all the 
elements of the State tort claim in order to prevail under that cause of 
action.
    A commenter had concerns about privacy requirements for banking 
transactions using telephone relay services. Title IV of the Act 
provides adequate protections for ensuring the confidentiality of 
communications using the relay services. This issue is more 
appropriately addressed by the Federal Communications Commission in its 
regulation implementing title IV of the Act.

                       Section 36.104  Definitions

    ``Act.'' The word ``Act'' is used in the regulation to refer to the 
Americans with Disabilities Act of 1990, Pub. L. 101-336, which is also 
referred to as the ``ADA.''
    ``Commerce.'' The definition of ``commerce'' is identical to the 
statutory definition provided in section 301(l) of the ADA. It means 
travel, trade, traffic, commerce, transportation, or communication among 
the several States, between any foreign country or any territory or 
possession and any State, or between points in the same State but 
through another State or foreign country. Commerce is defined in the 
same manner as in title II of the Civil Rights Act of 1964, which 
prohibits racial discrimination in public accommodations.
    The term ``commerce'' is used in the definition of ``place of public 
accommodation.'' According to that definition, one of the criteria that 
an entity must meet before it can be considered a place of public 
accommodation is that its operations affect commerce. The term 
``commerce'' is similarly used in the definition of ``commercial 
facility.''
    The use of the phrase ``operations affect commerce'' applies the 
full scope of coverage of the Commerce Clause of the Constitution in 
enforcing the ADA. The Constitution gives Congress broad authority to 
regulate interstate commerce, including the activities of local business 
enterprises (e.g., a physician's office, a neighborhood restaurant, a 
laundromat, or a bakery) that affect interstate commerce through the 
purchase or sale of products manufactured in other States, or by 
providing services to individuals from other States. Because of the 
integrated nature of the national economy, the ADA and this final rule 
will have extremely broad application.
    ``Commercial facilities'' are those facilities that are intended for 
nonresidential use by a private entity and whose operations affect 
commerce. As explained under Sec. 36.401, ``New construction,'' the new 
construction and alteration requirements of subpart D of the rule apply 
to all commercial facilities, whether or not they are places of public 
accommodation. Those commercial facilities that are not places of public 
accommodation are not subject to the requirements of subparts B and C 
(e.g., those requirements concerning auxiliary aids and general 
nondiscrimination provisions).
    Congress recognized that the employees within commercial facilities 
would generally be protected under title I (employment) of the Act. 
However, as the House Committee on Education and Labor pointed out, 
``[t]o the extent that new facilities are built in a manner that make[s] 
them accessible to all individuals, including potential employees, there 
will be less of a need for individual employers to engage in reasonable 
accommodations for particular employees.'' H.R. Rep. No. 485, 101st 
Cong., 2d Sess., pt. 2, at 117 (1990) [hereinafter ``Education and Labor 
report'']. While employers of fewer than 15 employees are not covered by 
title I's employment discrimination provisions, there is no such 
limitation with respect to new construction covered under title III. 
Congress chose not to so limit the new construction provisions because 
of its desire for a uniform requirement of accessibility in new 
construction, because accessibility can be accomplished easily in the 
design and construction

[[Page 609]]

stage, and because future expansion of a business or sale or lease of 
the property to a larger employer or to a business that is a place of 
public accommodation is always a possibility.
    The term ``commercial facilities'' is not intended to be defined by 
dictionary or common industry definitions. Included in this category are 
factories, warehouses, office buildings, and other buildings in which 
employment may occur. The phrase, ``whose operations affect commerce,'' 
is to be read broadly, to include all types of activities reached under 
the commerce clause of the Constitution.
    Privately operated airports are also included in the category of 
commercial facilities. They are not, however, places of public 
accommodation because they are not terminals used for ``specified public 
transportation.'' (Transportation by aircraft is specifically excluded 
from the statutory definition of ``specified public transportation.'') 
Thus, privately operated airports are subject to the new construction 
and alteration requirements of this rule (subpart D) but not to subparts 
B and C. (Airports operated by public entities are covered by title II 
of the Act.) Places of public accommodation located within airports, 
such as restaurants, shops, lounges, or conference centers, however, are 
covered by subparts B and C of this part.
    The statute's definition of ``commercial facilities'' specifically 
includes only facilities ``that are intended for nonresidential use'' 
and specifically exempts those facilities that are covered or expressly 
exempted from coverage under the Fair Housing Act of 1968, as amended 
(42 U.S.C. 3601-3631). The interplay between the Fair Housing Act and 
the ADA with respect to those facilities that are ``places of public 
accommodation'' was the subject of many comments and is addressed in the 
preamble discussion of the definition of ``place of public 
accommodation.''
    ``Current illegal use of drugs.'' The phrase ``current illegal use 
of drugs'' is used in Sec. 36.209. Its meaning is discussed in the 
preamble for that section.
    ``Disability.'' The definition of the term ``disability'' is 
comparable to the definition of the term ``individual with handicaps'' 
in section 7(8)(B) of the Rehabilitation Act and section 802(h) of the 
Fair Housing Act. The Education and Labor Committee report makes clear 
that the analysis of the term ``individual with handicaps'' by the 
Department of Health, Education, and Welfare in its regulations 
implementing section 504 (42 FR 22685 (May 4, 1977)) and the analysis by 
the Department of Housing and Urban Development in its regulation 
implementing the Fair Housing Amendments Act of 1988 (54 FR 3232 (Jan. 
23, 1989)) should also apply fully to the term ``disability'' (Education 
and Labor report at 50).
    The use of the term ``disability'' instead of ``handicap'' and the 
term ``individual with a disability'' instead of ``individual with 
handicaps'' represents an effort by the Congress to make use of up-to-
date, currently accepted terminology. The terminology applied to 
individuals with disabilities is a very significant and sensitive issue. 
As with racial and ethnic terms, the choice of words to describe a 
person with a disability is overlaid with stereotypes, patronizing 
attitudes, and other emotional connotations. Many individuals with 
disabilities, and organizations representing such individuals, object to 
the use of such terms as ``handicapped person'' or ``the handicapped.'' 
In other recent legislation, Congress also recognized this shift in 
terminology, e.g., by changing the name of the National Council on the 
Handicapped to the National Council on Disability (Pub. L. 100-630).
    In enacting the Americans with Disabilities Act, Congress concluded 
that it was important for the current legislation to use terminology 
most in line with the sensibilities of most Americans with disabilities. 
No change in definition or substance is intended nor should be 
attributed to this change in phraseology.
    The term ``disability'' means, with respect to an individual--
    (A) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (B) A record of such an impairment; or
    (C) Being regarded as having such an impairment.
    If an individual meets any one of these three tests, he or she is 
considered to be an individual with a disability for purposes of 
coverage under the Americans with Disabilities Act.
    Congress adopted this same basic definition of ``disability,'' first 
used in the Rehabilitation Act of 1973 and in the Fair Housing 
Amendments Act of 1988, for a number of reasons. It has worked well 
since it was adopted in 1974. There is a substantial body of 
administrative interpretation and judicial precedent on this definition. 
Finally, it would not be possible to guarantee comprehensiveness by 
providing a list of specific disabilities, especially because new 
disorders may be recognized in the future, as they have since the 
definition was first established in 1974.

Test A--A Physical or Mental Impairment That Substantially Limits One or 
          More of the Major Life Activities of Such Individual

    Physical or mental impairment. Under the first test, an individual 
must have a physical or mental impairment. As explained in paragraph (1) 
(i) of the definition, ``impairment'' means any physiological disorder 
or condition, cosmetic disfigurement, or anatomical

[[Page 610]]

loss affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense organs (including speech organs that are 
not respiratory, such as vocal cords, soft palate, and tongue); 
respiratory, including speech organs; cardiovascular; reproductive; 
digestive; genitourinary; hemic and lymphatic; skin; and endocrine. It 
also means any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. This list closely tracks the one used in 
the regulations for section 504 of the Rehabilitation Act of 1973 (see, 
e.g., 45 CFR 84.3(j)(2)(i)).
    Many commenters asked that ``traumatic brain injury'' be added to 
the list in paragraph (1)(i). Traumatic brain injury is already included 
because it is a physiological condition affecting one of the listed body 
systems, i.e., ``neurological.'' Therefore, it was unnecessary for the 
Department to add the term to the regulation.
    It is not possible to include a list of all the specific conditions, 
contagious and noncontagious diseases, or infections that would 
constitute physical or mental impairments because of the difficulty of 
ensuring the comprehensiveness of such a list, particularly in light of 
the fact that other conditions or disorders may be identified in the 
future. However, the list of examples in paragraph (1)(iii) of the 
definition includes: Orthopedic, visual, speech and hearing impairments; 
cerebral palsy; epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
specific learning disabilities, HIV disease (symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism.
    The examples of ``physical or mental impairments'' in paragraph 
(1)(iii) are the same as those contained in many section 504 
regulations, except for the addition of the phrase ``contagious and 
noncontagious'' to describe the types of diseases and conditions 
included, and the addition of ``HIV disease (symptomatic or 
asymptomatic)'' and ``tuberculosis'' to the list of examples. These 
additions are based on the ADA committee reports, caselaw, and official 
legal opinions interpreting section 504. In School Board of Nassau 
County v. Arline, 480 U.S. 273 (1987), a case involving an individual 
with tuberculosis, the Supreme Court held that people with contagious 
diseases are entitled to the protections afforded by section 504. 
Following the Arline decision, this Department's Office of Legal Counsel 
issued a legal opinion that concluded that symptomatic HIV disease is an 
impairment that substantially limits a major life activity; therefore it 
has been included in the definition of disability under this part. The 
opinion also concluded that asymptomatic HIV disease is an impairment 
that substantially limits a major life activity, either because of its 
actual effect on the individual with HIV disease or because the 
reactions of other people to individuals with HIV disease cause such 
individuals to be treated as though they are disabled. See Memorandum 
from Douglas W. Kmiec, Acting Assistant Attorney General, Office of 
Legal Counsel, Department of Justice, to Arthur B. Culvahouse, Jr., 
Counsel to the President (Sept. 27, 1988), reprinted in Hearings on S. 
933, the Americans with Disabilities Act, Before the Subcomm. on the 
Handicapped of the Senate Comm. on Labor and Human Resources, 101st 
Cong., 1st Sess. 346 (1989). The phrase ``symptomatic or asymptomatic'' 
was inserted in the final rule after ``HIV disease'' in response to 
commenters who suggested that the clarification was necessary to give 
full meaning to the Department's opinion.
    Paragraph (1)(iv) of the definition states that the phrase 
``physical or mental impairment'' does not include homosexuality or 
bisexuality. These conditions were never considered impairments under 
other Federal disability laws. Section 511(a) of the statute makes clear 
that they are likewise not to be considered impairments under the 
Americans with Disabilities Act.
    Physical or mental impairment does not include simple physical 
characteristics, such as blue eyes or black hair. Nor does it include 
environmental, cultural, economic, or other disadvantages, such as 
having a prison record, or being poor. Nor is age a disability. 
Similarly, the definition does not include common personality traits 
such as poor judgment or a quick temper where these are not symptoms of 
a mental or psychological disorder. However, a person who has these 
characteristics and also has a physical or mental impairment may be 
considered as having a disability for purposes of the Americans with 
Disabilities Act based on the impairment.
    Substantial limitation of a major life activity. Under Test A, the 
impairment must be one that ``substantially limits a major life 
activity.'' Major life activities include such things as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working. For example, a person who is 
paraplegic is substantially limited in the major life activity of 
walking, a person who is blind is substantially limited in the major 
life activity of seeing, and a person who is mentally retarded is 
substantially limited in the major life activity of learning. A person 
with traumatic brain injury is substantially limited in the major life 
activities of caring for one's self, learning, and working because of 
memory deficit, confusion, contextual difficulties, and inability to 
reason appropriately.
    A person is considered an individual with a disability for purposes 
of Test A, the first prong of the definition, when the individual's

[[Page 611]]

important life activities are restricted as to the conditions, manner, 
or duration under which they can be performed in comparison to most 
people. A person with a minor, trivial impairment, such as a simple 
infected finger, is not impaired in a major life activity. A person who 
can walk for 10 miles continuously is not substantially limited in 
walking merely because, on the eleventh mile, he or she begins to 
experience pain, because most people would not be able to walk eleven 
miles without experiencing some discomfort.
    The Department received many comments on the proposed rule's 
inclusion of the word ``temporary'' in the definition of ``disability.'' 
The preamble indicated that impairments are not necessarily excluded 
from the definition of ``disability'' simply because they are temporary, 
but that the duration, or expected duration, of an impairment is one 
factor that may properly be considered in determining whether the 
impairment substantially limits a major life activity. The preamble 
recognized, however, that temporary impairments, such as a broken leg, 
are not commonly regarded as disabilities, and only in rare 
circumstances would the degree of the limitation and its expected 
duration be substantial: Nevertheless, many commenters objected to 
inclusion of the word ``temporary'' both because it is not in the 
statute and because it is not contained in the definition of 
``disability'' set forth in the title I regulations of the Equal 
Employment Opportunity Commission (EEOC). The word ``temporary'' has 
been deleted from the final rule to conform with the statutory language. 
The question of whether a temporary impairment is a disability must be 
resolved on a case-by-case basis, taking into consideration both the 
duration (or expected duration) of the impairment and the extent to 
which it actually limits a major life activity of the affected 
individual.
    The question of whether a person has a disability should be assessed 
without regard to the availability of mitigating measures, such as 
reasonable modifications or auxiliary aids and services. For example, a 
person with hearing loss is substantially limited in the major life 
activity of hearing, even though the loss may be improved through the 
use of a hearing aid. Likewise, persons with impairments, such as 
epilepsy or diabetes, that substantially limit a major life activity, 
are covered under the first prong of the definition of disability, even 
if the effects of the impairment are controlled by medication.
    Many commenters asked that environmental illness (also known as 
multiple chemical sensitivity) as well as allergy to cigarette smoke be 
recognized as disabilities. The Department, however, declines to state 
categorically that these types of allergies or sensitivities are 
disabilities, because the determination as to whether an impairment is a 
disability depends on whether, given the particular circumstances at 
issue, the impairment substantially limits one or more major life 
activities (or has a history of, or is regarded as having such an 
effect).
    Sometimes respiratory or neurological functioning is so severely 
affected that an individual will satisfy the requirements to be 
considered disabled under the regulation. Such an individual would be 
entitled to all of the protections afforded by the Act and this part. In 
other cases, individuals may be sensitive to environmental elements or 
to smoke but their sensitivity will not rise to the level needed to 
constitute a disability. For example, their major life activity of 
breathing may be somewhat, but not substantially, impaired. In such 
circumstances, the individuals are not disabled and are not entitled to 
the protections of the statute despite their sensitivity to 
environmental agents.
    In sum, the determination as to whether allergies to cigarette 
smoke, or allergies or sensitivities characterized by the commenters as 
environmental illness are disabilities covered by the regulation must be 
made using the same case-by-case analysis that is applied to all other 
physical or mental impairments. Moreover, the addition of specific 
regulatory provisions relating to environmental illness in the final 
rule would be inappropriate at this time pending future consideration of 
the issue by the Architectural and Transportation Barriers Compliance 
Board, the Environmental Protection Agency, and the Occupational Safety 
and Health Administration of the Department of Labor.

                 Test B--A Record of Such an Impairment

    This test is intended to cover those who have a record of an 
impairment. As explained in paragraph (3) of the rule's definition of 
disability, this includes a person who has a history of an impairment 
that substantially limited a major life activity, such as someone who 
has recovered from an impairment. It also includes persons who have been 
misclassified as having an impairment.
    This provision is included in the definition in part to protect 
individuals who have recovered from a physical or mental impairment that 
previously substantially limited them in a major life activity. 
Discrimination on the basis of such a past impairment is prohibited. 
Frequently occurring examples of the first group (those who have a 
history of an impairment) are persons with histories of mental or 
emotional illness, heart disease, or cancer; examples of the second 
group (those who have been misclassified as having an impairment) are 
persons who have been misclassified as having mental retardation or 
mental illness.

[[Page 612]]

           Test C--Being Regarded as Having Such an Impairment

    This test, as contained in paragraph (4) of the definition, is 
intended to cover persons who are treated by a private entity or public 
accommodation as having a physical or mental impairment that 
substantially limits a major life activity. It applies when a person is 
treated as if he or she has an impairment that substantially limits a 
major life activity, regardless of whether that person has an 
impairment.
    The Americans with Disabilities Act uses the same ``regarded as'' 
test set forth in the regulations implementing section 504 of the 
Rehabilitation Act. See, e.g., 28 CFR 42.540(k)(2)(iv), which provides:

    (iv) ``Is regarded as having an impairment'' means (A) Has a 
physical or mental impairment that does not substantially limit major 
life activities but that is treated by a recipient as constituting such 
a limitation; (B) Has a physical or mental impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or (C) Has none of the impairments defined in 
paragraph (k)(2)(i) of this section but is treated by a recipient as 
having such an impairment.

    The perception of the private entity or public accommodation is a 
key element of this test. A person who perceives himself or herself to 
have an impairment, but does not have an impairment, and is not treated 
as if he or she has an impairment, is not protected under this test. A 
person would be covered under this test if a restaurant refused to serve 
that person because of a fear of ``negative reactions'' of others to 
that person. A person would also be covered if a public accommodation 
refused to serve a patron because it perceived that the patron had an 
impairment that limited his or her enjoyment of the goods or services 
being offered.
    For example, persons with severe burns often encounter 
discrimination in community activities, resulting in substantial 
limitation of major life activities. These persons would be covered 
under this test based on the attitudes of others towards the impairment, 
even if they did not view themselves as ``impaired.''
    The rationale for this third test, as used in the Rehabilitation Act 
of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 
(1987). The Court noted that, although an individual may have an 
impairment that does not in fact substantially limit a major life 
activity, the reaction of others may prove just as disabling. ``Such an 
impairment might not diminish a person's physical or mental 
capabilities, but could nevertheless substantially limit that person's 
ability to work as a result of the negative reactions of others to the 
impairment.'' Id. at 283. The Court concluded that, by including this 
test in the Rehabilitation Act's definition, ``Congress acknowledged 
that society's accumulated myths and fears about disability and disease 
are as handicapping as are the physical limitations that flow from 
actual impairment.'' Id. at 284.
    Thus, a person who is not allowed into a public accommodation 
because of the myths, fears, and stereotypes associated with 
disabilities would be covered under this third test whether or not the 
person's physical or mental condition would be considered a disability 
under the first or second test in the definition.
    If a person is refused admittance on the basis of an actual or 
perceived physical or mental condition, and the public accommodation can 
articulate no legitimate reason for the refusal (such as failure to meet 
eligibility criteria), a perceived concern about admitting persons with 
disabilities could be inferred and the individual would qualify for 
coverage under the ``regarded as'' test. A person who is covered because 
of being regarded as having an impairment is not required to show that 
the public accommodation's perception is inaccurate (e.g., that he will 
be accepted by others, or that insurance rates will not increase) in 
order to be admitted to the public accommodation.
    Paragraph (5) of the definition lists certain conditions that are 
not included within the definition of ``disability.'' The excluded 
conditions are: transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, other sexual behavior disorders, compulsive gambling, 
kleptomania, pyromania, and psychoactive substance use disorders 
resulting from current illegal use of drugs. Unlike homosexuality and 
bisexuality, which are not considered impairments under either the 
Americans with Disabilities Act (see the definition of ``disability,'' 
paragraph (1)(iv)) or section 504, the conditions listed in paragraph 
(5), except for transvestism, are not necessarily excluded as 
impairments under section 504. (Transvestism was excluded from the 
definition of disability for section 504 by the Fair Housing Amendments 
Act of 1988, Pub. L. 100-430, Sec. 6(b).) The phrase ``current illegal 
use of drugs'' used in this definition is explained in the preamble to 
Sec. 36.209.
    ``Drug.'' The definition of the term ``drug'' is taken from section 
510(d)(2) of the ADA.
    ``Facility.'' ``Facility'' means all or any portion of buildings, 
structures, sites, complexes, equipment, rolling stock or other 
conveyances, roads, walks, passageways, parking lots, or other real or 
personal property, including the site where the building, property, 
structure, or equipment is located.

[[Page 613]]

Committee reports made clear that the definition of facility was drawn 
from the definition of facility in current Federal regulations (see, 
e.g., Education and Labor report at 114). It includes both indoor and 
outdoor areas where human-constructed improvements, structures, 
equipment, or property have been added to the natural environment.
    The term ``rolling stock or other conveyances'' was not included in 
the definition of facility in the proposed rule. However, commenters 
raised questions about the applicability of this part to places of 
public accommodation operated in mobile facilities (such as cruise 
ships, floating restaurants, or mobile health units). Those places of 
public accommodation are covered under this part, and would be included 
in the definition of ``facility.'' Thus the requirements of subparts B 
and C would apply to those places of public accommodation. For example, 
a covered entity could not discriminate on the basis of disability in 
the full and equal enjoyment of the facilities (Sec. 36.201). Similarly, 
a cruise line could not apply eligibility criteria to potential 
passengers in a manner that would screen out individuals with 
disabilities, unless the criteria are ``necessary,'' as provided in 
Sec. 36.301.
    However, standards for new construction and alterations of such 
facilities are not yet included in the Americans with Disabilities Act 
Accessibility Guidelines for Buildings and Facilities (ADAAG) adopted by 
Sec. 36.406 and incorporated in appendix A. The Department therefore 
will not interpret the new construction and alterations provisions of 
subpart D to apply to the types of facilities discussed here, pending 
further development of specific requirements.
    Requirements pertaining to accessible transportation services 
provided by public accommodations are included in Sec. 36.310 of this 
part; standards pertaining to accessible vehicles will be issued by the 
Secretary of Transportation pursuant to section 306 of the Act, and will 
be codified at 49 CFR part 37.
    A public accommodation has obligations under this rule with respect 
to a cruise ship to the extent that its operations are subject to the 
laws of the United States.
    The definition of ``facility'' only includes the site over which the 
private entity may exercise control or on which a place of public 
accommodation or a commercial facility is located. It does not include, 
for example, adjacent roads or walks controlled by a public entity that 
is not subject to this part. Public entities are subject to the 
requirements of title II of the Act. The Department's regulation 
implementing title II, which will be codified at 28 CFR part 35, 
addresses the obligations of public entities to ensure accessibility by 
providing curb ramps at pedestrian walkways.
    ``Illegal use of drugs.'' The definition of ``illegal use of drugs'' 
is taken from section 510(d)(1) of the Act and clarifies that the term 
includes the illegal use of one or more drugs.
    ``Individual with a disability'' means a person who has a disability 
but does not include an individual who is currently illegally using 
drugs, when the public accommodation acts on the basis of such use. The 
phrase ``current illegal use of drugs'' is explained in the preamble to 
Sec. 36.209.
    ``Place of public accommodation.'' The term ``place of public 
accommodation'' is an adaptation of the statutory definition of ``public 
accommodation'' in section 301(7) of the ADA and appears as an element 
of the regulatory definition of public accommodation. The final rule 
defines ``place of public accommodation'' as a facility, operated by a 
private entity, whose operations affect commerce and fall within at 
least one of 12 specified categories. The term ``public accommodation,'' 
on the other hand, is reserved by the final rule for the private entity 
that owns, leases (or leases to), or operates a place of public 
accommodation. It is the public accommodation, and not the place of 
public accommodation, that is subject to the regulation's 
nondiscrimination requirements. Placing the obligation not to 
discriminate on the public accommodation, as defined in the rule, is 
consistent with section 302(a) of the ADA, which places the obligation 
not to discriminate on any person who owns, leases (or leases to), or 
operates a place of public accommodation.
    Facilities operated by government agencies or other public entities 
as defined in this section do not qualify as places of public 
accommodation. The actions of public entities are governed by title II 
of the ADA and will be subject to regulations issued by the Department 
of Justice under that title. The receipt of government assistance by a 
private entity does not by itself preclude a facility from being 
considered as a place of public accommodation.
    The definition of place of public accommodation incorporates the 12 
categories of facilities represented in the statutory definition of 
public accommodation in section 301(7) of the ADA:
    1. Places of lodging.
    2. Establishments serving food or drink.
    3. Places of exhibition or entertainment.
    4. Places of public gathering.
    5. Sales or rental establishments.
    6. Service establishments.
    7. Stations used for specified public transportation.
    8. Places of public display or collection.
    9. Places of recreation.
    10. Places of education.
    11. Social service center establishments.
    12. Places of exercise or recreation.

[[Page 614]]

    In order to be a place of public accommodation, a facility must be 
operated by a private entity, its operations must affect commerce, and 
it must fall within one of these 12 categories. While the list of 
categories is exhaustive, the representative examples of facilities 
within each category are not. Within each category only a few examples 
are given. The category of social service center establishments would 
include not only the types of establishments listed, day care centers, 
senior citizen centers, homeless shelters, food banks, adoption 
agencies, but also establishments such as substance abuse treatment 
centers, rape crisis centers, and halfway houses. As another example, 
the category of sales or rental establishments would include an 
innumerable array of facilities that would sweep far beyond the few 
examples given in the regulation. For example, other retail or wholesale 
establishments selling or renting items, such as bookstores, videotape 
rental stores, car rental establishment, pet stores, and jewelry stores 
would also be covered under this category, even though they are not 
specifically listed.
    Several commenters requested clarification as to the coverage of 
wholesale establishments under the category of ``sales or rental 
establishments.'' The Department intends for wholesale establishments to 
be covered under this category as places of public accommodation except 
in cases where they sell exclusively to other businesses and not to 
individuals. For example, a company that grows food produce and supplies 
its crops exclusively to food processing corporations on a wholesale 
basis does not become a public accommodation because of these 
transactions. If this company operates a road side stand where its crops 
are sold to the public, the road side stand would be a sales 
establishment covered by the ADA. Conversely, a sales establishment that 
markets its goods as ``wholesale to the public'' and sells to 
individuals would not be exempt from ADA coverage despite its use of the 
word ``wholesale'' as a marketing technique.
    Of course, a company that operates a place of public accommodation 
is subject to this part only in the operation of that place of public 
accommodation. In the example given above, the wholesale produce company 
that operates a road side stand would be a public accommodation only for 
the purposes of the operation of that stand. The company would be 
prohibited from discriminating on the basis of disability in the 
operation of the road side stand, and it would be required to remove 
barriers to physical access to the extent that it is readily achievable 
to do so (see Sec. 36.304); however, in the event that it is not readily 
achievable to remove barriers, for example, by replacing a gravel 
surface or regrading the area around the stand to permit access by 
persons with mobility impairments, the company could meet its 
obligations through alternative methods of making its goods available, 
such as delivering produce to a customer in his or her car (see 
Sec. 36.305). The concepts of readily achievable barrier removal and 
alternatives to barrier removal are discussed further in the preamble 
discussion of Secs. 36.304 and 36.305.
    Even if a facility does not fall within one of the 12 categories, 
and therefore does not qualify as a place of public accommodation, it 
still may be a commercial facility as defined in Sec. 36.104 and be 
subject to the new construction and alterations requirements of subpart 
D.
    A number of commenters questioned the treatment of residential 
hotels and other residential facilities in the Department's proposed 
rule. These commenters were essentially seeking resolution of the 
relationship between the Fair Housing Act and the ADA concerning 
facilities that are both residential in nature and engage in activities 
that would cause them to be classified as ``places of public 
accommodation'' under the ADA. The ADA's express exemption relating to 
the Fair Housing Act applies only to ``commercial facilities'' and not 
to ``places of public accommodation.''
    A facility whose operations affect interstate commerce is a place of 
public accommodation for purposes of the ADA to the extent that its 
operations include those types of activities engaged in or services 
provided by the facilities contained on the list of 12 categories in 
section 301(7) of the ADA. Thus, a facility that provides social 
services would be considered a ``social service center establishment.'' 
Similarly, the category ``places of lodging'' would exclude solely 
residential facilities because the nature of a place of lodging 
contemplates the use of the facility for short-term stays.
    Many facilities, however, are mixed use facilities. For example, in 
a large hotel that has a separate residential apartment wing, the 
residential wing would not be covered by the ADA because of the nature 
of the occupancy of that part of the facility. This residential wing 
would, however, be covered by the Fair Housing Act. The separate 
nonresidential accommodations in the rest of the hotel would be a place 
of lodging, and thus a public accommodation subject to the requirements 
of this final rule. If a hotel allows both residential and short-term 
stays, but does not allocate space for these different uses in separate, 
discrete units, both the ADA and the Fair Housing Act may apply to the 
facility. Such determinations will need to be made on a case-by-case 
basis. Any place of lodging of the type described in paragraph (1) of 
the definition of place of public accommodation and that is an 
establishment located within a building that contains not more than five 
rooms for rent or

[[Page 615]]

hire and is actually occupied by the proprietor of the establishment as 
his or her residence is not covered by the ADA. (This exclusion from 
coverage does not apply to other categories of public accommodations, 
for example, professional offices or homeless shelters, that are located 
in a building that is also occupied as a private residence.)
    A number of commenters noted that the term ``residential hotel'' may 
also apply to a type of hotel commonly known as a ``single room 
occupancy hotel.'' Although such hotels or portions of such hotels may 
fall under the Fair Housing Act when operated or used as long-term 
residences, they are also considered ``places of lodging'' under the ADA 
when guests of such hotels are free to use them on a short-term basis. 
In addition, ``single room occupancy hotels'' may provide social 
services to their guests, often through the operation of Federal or 
State grant programs. In such a situation, the facility would be 
considered a ``social service center establishment'' and thus covered by 
the ADA as a place of public accommodation, regardless of the length of 
stay of the occupants.
    A similar analysis would also be applied to other residential 
facilities that provide social services, including homeless shelters, 
shelters for people seeking refuge from domestic violence, nursing 
homes, residential care facilities, and other facilities where persons 
may reside for varying lengths of time. Such facilities should be 
analyzed under the Fair Housing Act to determine the application of that 
statute. The ADA, however, requires a separate and independent analysis. 
For example, if the facility, or a portion of the facility, is intended 
for or permits short-term stays, or if it can appropriately be 
categorized as a service establishment or as a social service 
establishment, then the facility or that portion of the facility used 
for the covered purpose is a place of public accommodation under the 
ADA. For example, a homeless shelter that is intended and used only for 
long-term residential stays and that does not provide social services to 
its residents would not be covered as a place of public accommodation. 
However, if this facility permitted short-term stays or provided social 
services to its residents, it would be covered under the ADA either as a 
``place of lodging'' or as a ``social service center establishment,'' or 
as both.
    A private home, by itself, does not fall within any of the 12 
categories. However, it can be covered as a place of public 
accommodation to the extent that it is used as a facility that would 
fall within one of the 12 categories. For example, if a professional 
office of a dentist, doctor, or psychologist is located in a private 
home, the portion of the home dedicated to office use (including areas 
used both for the residence and the office, e.g., the entrance to the 
home that is also used as the entrance to the professional office) would 
be considered a place of public accommodation. Places of public 
accommodation located in residential facilities are specifically 
addressed in Sec. 36.207.
    If a tour of a commercial facility that is not otherwise a place of 
public accommodation, such as, for example, a factory or a movie studio 
production set, is open to the general public, the route followed by the 
tour is a place of public accommodation and the tour must be operated in 
accordance with the rule's requirements for public accommodations. The 
place of public accommodation defined by the tour does not include those 
portions of the commercial facility that are merely viewed from the tour 
route. Hence, the barrier removal requirements of Sec. 36.304 only apply 
to the physical route followed by the tour participants and not to work 
stations or other areas that are merely adjacent to, or within view of, 
the tour route. If the tour is not open to the general public, but 
rather is conducted, for example, for selected business colleagues, 
partners, customers, or consultants, the tour route is not a place of 
public accommodation and the tour is not subject to the requirements for 
public accommodations.
    Public accommodations that receive Federal financial assistance are 
subject to the requirements of section 504 of the Rehabilitation Act as 
well as the requirements of the ADA.
    Private schools, including elementary and secondary schools, are 
covered by the rule as places of public accommodation. The rule itself, 
however, does not require a private school to provide a free appropriate 
education or develop an individualized education program in accordance 
with regulations of the Department of Education implementing section 504 
of the Rehabilitation Act of 1973, as amended (34 CFR part 104), and 
regulations implementing the Individuals with Disabilities Education Act 
(34 CFR part 300). The receipt of Federal assistance by a private 
school, however, would trigger application of the Department of 
Education's regulations to the extent mandated by the particular type of 
assistance received.
    ``Private club.'' The term ``private club'' is defined in accordance 
with section 307 of the ADA as a private club or establishment exempted 
from coverage under title II of the Civil Rights Act of 1964. Title II 
of the 1964 Act exempts any ``private club or other establishment not in 
fact open to the public, except to the extent that the facilities of 
such establishment are made available to the customers or patrons of [a 
place of public accommodation as defined in title II].'' The rule, 
therefore, as reflected in Sec. 36.102(e) of the application section, 
limits the coverage of private clubs accordingly. The obligations of a 
private club that rents space to any other private entity for the 
operation of a

[[Page 616]]

place of public accommodation are discussed further in connection with 
Sec. 36.201.
    In determining whether a private entity qualifies as a private club 
under title II, courts have considered such factors as the degree of 
member control of club operations, the selectivity of the membership 
selection process, whether substantial membership fees are charged, 
whether the entity is operated on a nonprofit basis, the extent to which 
the facilities are open to the public, the degree of public funding, and 
whether the club was created specifically to avoid compliance with the 
Civil Rights Act. See e.g., Tillman v. Wheaton-Haven Recreation Ass'n, 
410 U.S. 431 (1973); Daniel v. Paul, 395 U.S. 298 (1969); Olzman v. Lake 
Hills Swim Club, Inc., 495 F.2d 1333 (2d Cir. 1974); Anderson v. Pass 
Christian Isles Golf Club, Inc., 488 F.2d 855 (5th Cir. 1974); Smith v. 
YMCA, 462 F.2d 634 (5th Cir. 1972); Stout v. YMCA, 404 F.2d 687 (5th 
Cir. 1968); United States v. Richberg, 398 F.2d 523 (5th Cir. 1968); 
Nesmith v. YMCA, 397 F.2d 96 (4th Cir. 1968); United States v. Lansdowne 
Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989); Durham v. Red Lake Fishing 
and Hunting Club, Inc., 666 F. Supp. 954 (W.D. Tex. 1987); New York v. 
Ocean Club, Inc., 602 F. Supp. 489 (E.D.N.Y. 1984); Brown v. Loudoun 
Golf and Country Club, Inc., 573 F. Supp. 399 (E.D. Va. 1983); United 
States v. Trustees of Fraternal Order of Eagles, 472 F. Supp. 1174 (E.D. 
Wis. 1979); Cornelius v. Benevolent Protective Order of Elks, 382 F. 
Supp. 1182 (D. Conn. 1974).
    ``Private entity.'' The term ``private entity'' is defined as any 
individual or entity other than a public entity. It is used as part of 
the definition of ``public accommodation'' in this section.
    The definition adds ``individual'' to the statutory definition of 
private entity (see section 301(6) of the ADA). This addition clarifies 
that an individual may be a private entity and, therefore, may be 
considered a public accommodation if he or she owns, leases (or leases 
to), or operates a place of public accommodation. The explicit inclusion 
of individuals under the definition of private entity is consistent with 
section 302(a) of the ADA, which broadly prohibits discrimination on the 
basis of disability by any person who owns, leases (or leases to), or 
operates a place of public accommodation.
    ``Public accommodation.'' The term ``public accommodation'' means a 
private entity that owns, leases (or leases to), or operates a place of 
public accommodation. The regulatory term, ``public accommodation,'' 
corresponds to the statutory term, ``person,'' in section 302(a) of the 
ADA. The ADA prohibits discrimination ``by any person who owns, leases 
(or leases to), or operates a place of public accommodation.'' The text 
of the regulation consequently places the ADA's nondiscrimination 
obligations on ``public accommodations'' rather than on ``persons'' or 
on ``places of public accommodation.''
    As stated in Sec. 36.102(b)(2), the requirements of subparts B and C 
obligate a public accommodation only with respect to the operations of a 
place of public accommodation. A public accommodation must also meet the 
requirements of subpart D with respect to facilities used as, or 
designed or constructed for use as, places of public accommodation or 
commercial facilities.
    ``Public entity.'' The term ``public entity'' is defined in 
accordance with section 201(1) of the ADA as any State or local 
government; any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and the 
National Railroad Passenger Corporation, and any commuter authority (as 
defined in section 103(8) of the Rail Passenger Service Act). It is used 
in the definition of ``private entity'' in Sec. 36.104. Public entities 
are excluded from the definition of private entity and therefore cannot 
qualify as public accommodations under this regulation. However, the 
actions of public entities are covered by title II of the ADA and by the 
Department's title II regulations codified at 28 CFR part 35.
    ``Qualified interpreter.'' The Department received substantial 
comment regarding the lack of a definition of ``qualified interpreter.'' 
The proposed rule defined auxiliary aids and services to include the 
statutory term, ``qualified interpreters'' (Sec. 36.303(b)), but did not 
define that term. Section 36.303 requires the use of a qualified 
interpreter where necessary to achieve effective communication, unless 
an undue burden or fundamental alteration would result. Commenters 
stated that a lack of guidance on what the term means would create 
confusion among those trying to secure interpreting services and often 
result in less than effective communication.
    Many commenters were concerned that, without clear guidance on the 
issue of ``qualified'' interpreter, the rule would be interpreted to 
mean ``available, rather than qualified'' interpreters. Some claimed 
that few public accommodations would understand the difference between a 
qualified interpreter and a person who simply knows a few signs or how 
to fingerspell.
    In order to clarify what is meant by ``qualified interpreter'' the 
Department has added a definition of the term to the final rule. A 
qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively and 
expressively, using any necessary specialized vocabulary. This 
definition focuses on the actual ability of the interpreter in a 
particular interpreting context to facilitate effective communication 
between the public accommodation and the individual with disabilities.
    Public comment also revealed that public accommodations have at 
times asked persons who are deaf to provide family members

[[Page 617]]

or friends to interpret. In certain circumstances, notwithstanding that 
the family member or friend is able to interpret or is a certified 
interpreter, the family member or friend may not be qualified to render 
the necessary interpretation because of factors such as emotional or 
personal involvement or considerations of confidentiality that may 
adversely affect the ability to interpret ``effectively, accurately, and 
impartially.''
    ``Readily achievable.'' The definition of ``readily achievable'' 
follows the statutory definition of that term in section 301(9) of the 
ADA. Readily achievable means easily accomplishable and able to be 
carried out without much difficulty or expense. The term is used as a 
limitation on the obligation to remove barriers under Secs. 36.304(a), 
36.305(a), 36.308(a), and 36.310(b). Further discussion of the meaning 
and application of the term ``readily achievable'' may be found in the 
preamble section for Sec. 36.304.
    The definition lists factors to be considered in determining whether 
barrier removal is readily achievable in any particular circumstance. A 
significant number of commenters objected to Sec. 36.306 of the proposed 
rule, which listed identical factors to be considered for determining 
``readily achievable'' and ``undue burden'' together in one section. 
They asserted that providing a consolidated section blurred the 
distinction between the level of effort required by a public 
accommodation under the two standards. The readily achievable standard 
is a ``lower'' standard than the ``undue burden'' standard in terms of 
the level of effort required, but the factors used in determining 
whether an action is readily achievable or would result in an undue 
burden are identical (See Education and Labor report at 109). Although 
the preamble to the proposed rule clearly delineated the relationship 
between the two standards, to eliminate any confusion the Department has 
deleted Sec. 36.306 of the proposed rule. That section, in any event, as 
other commenters noted, had merely repeated the lists of factors 
contained in the definitions of readily achievable and undue burden.
    The list of factors included in the definition is derived from 
section 301(9) of the ADA. It reflects the congressional intention that 
a wide range of factors be considered in determining whether an action 
is readily achievable. It also takes into account that many local 
facilities are owned or operated by parent corporations or entities that 
conduct operations at many different sites. This section makes clear 
that, in some instances, resources beyond those of the local facility 
where the barrier must be removed may be relevant in determining whether 
an action is readily achievable. One must also evaluate the degree to 
which any parent entity has resources that may be allocated to the local 
facility.
    The statutory list of factors in section 301(9) of the Act uses the 
term ``covered entity'' to refer to the larger entity of which a 
particular facility may be a part. ``Covered entity'' is not a defined 
term in the ADA and is not used consistently throughout the Act. The 
definition, therefore, substitutes the term ``parent entity'' in place 
of ``covered entity'' in paragraphs (3), (4), and (5) when referring to 
the larger private entity whose overall resources may be taken into 
account. This usage is consistent with the House Judiciary Committee's 
use of the term ``parent company'' to describe the larger entity of 
which the local facility is a part (H.R. Rep. No. 485, 101st Cong., 2d 
Sess., pt. 3, at 40-41, 54-55 (1990) (hereinafter ``Judiciary 
report'')).
    A number of commenters asked for more specific guidance as to when 
and how the resources of a parent corporation or entity are to be taken 
into account in determining what is readily achievable. The Department 
believes that this complex issue is most appropriately resolved on a 
case-by-case basis. As the comments reflect, there is a wide variety of 
possible relationships between the site in question and any parent 
corporation or other entity. It would be unwise to posit legal 
ramifications under the ADA of even generic relationships (e.g., banks 
involved in foreclosures or insurance companies operating as trustees or 
in other similar fiduciary relationships), because any analysis will 
depend so completely on the detailed fact situations and the exact 
nature of the legal relationships involved. The final rule does, 
however, reorder the factors to be considered. This shift and the 
addition of the phrase ``if applicable'' make clear that the line of 
inquiry concerning factors will start at the site involved in the action 
itself. This change emphasizes that the overall resources, size, and 
operations of the parent corporation or entity should be considered to 
the extent appropriate in light of ``the geographic separateness, and 
the administrative or fiscal relationship of the site or sites in 
question to any parent corporation or entity.''
    Although some commenters sought more specific numerical guidance on 
the definition of readily achievable, the Department has declined to 
establish in the final rule any kind of numerical formula for 
determining whether an action is readily achievable. It would be 
difficult to devise a specific ceiling on compliance costs that would 
take into account the vast diversity of enterprises covered by the ADA's 
public accommodations requirements and the economic situation that any 
particular entity would find itself in at any moment. The final rule, 
therefore, implements the flexible case-by-case approach chosen by 
Congress.
    A number of commenters requested that security considerations be 
explicitly recognized as a factor in determining whether a barrier 
removal action is readily achievable.

[[Page 618]]

The Department believes that legitimate safety requirements, including 
crime prevention measures, may be taken into account so long as they are 
based on actual risks and are necessary for safe operation of the public 
accommodation. This point has been included in the definition.
    Some commenters urged the Department not to consider acts of barrier 
removal in complete isolation from each other in determining whether 
they are readily achievable. The Department believes that it is 
appropriate to consider the cost of other barrier removal actions as one 
factor in determining whether a measure is readily achievable.
    ``Religious entity.'' The term ``religious entity'' is defined in 
accordance with section 307 of the ADA as a religious organization or 
entity controlled by a religious organization, including a place of 
worship. Section 36.102(e) of the rule states that the rule does not 
apply to any religious entity.
    The ADA's exemption of religious organizations and religious 
entities controlled by religious organizations is very broad, 
encompassing a wide variety of situations. Religious organizations and 
entities controlled by religious organizations have no obligations under 
the ADA. Even when a religious organization carries out activities that 
would othervise make it a public accommodation, the religious 
organization is exempt from ADA coverage. Thus, if a church itself 
operates a day care center, a nursing home, a private school, or a 
diocesan school system, the operations of the center, home, school, or 
schools would not be subject to the requirements of the ADA or this 
part. The religious entity would not lose its exemption merely because 
the services provided were open to the general public. The test is 
whether the church or other religious organization operates the public 
accommodation, not which individuals receive the public accommodation's 
services.
    Religious entities that are controlled by religious organizations 
are also exempt from the ADA's requirements. Many religious 
organizations in the United States use lay boards and other secular or 
corporate mechanisms to operate schools and an array of social services. 
The use of a lay board or other mechanism does not itself remove the 
ADA's religious exemption. Thus, a parochial school, having religious 
doctrine in its curriculum and sponsored by a religious order, could be 
exempt either as a religious organization or as an entity controlled by 
a religious organization, even if it has a lay board. The test remains a 
factual one--whether the church or other religious organization controls 
the operations of the school or of the service or whether the school or 
service is itself a religious organization.
    Although a religious organization or a religious entity that is 
controlled by a religious organization has no obligations under the 
rule, a public accommodation that is not itself a religious 
organization, but that operates a place of public accommodation in 
leased space on the property of a religious entity, which is not a place 
of worship, is subject to the rule's requirements if it is not under 
control of a religious organization. When a church rents meeting space, 
which is not a place of worship, to a local community group or to a 
private, independent day care center, the ADA applies to the activities 
of the local community group and day care center if a lease exists and 
consideration is paid.
    ``Service animal.'' The term ``service animal'' encompasses any 
guide dog, signal dog, or other animal individually trained to provide 
assistance to an individual with a disability. The term is used in 
Sec. 36.302(c), which requires public accommodations generally to modify 
policies, practices, and procedures to accommodate the use of service 
animals in places of public accommodation.
    ``Specified public transportation.'' The definition of ``specified 
public transportation'' is identical to the statutory definition in 
section 301(10) of the ADA. The term means transportation by bus, rail, 
or any other conveyance (other than by aircraft) that provides the 
general public with general or special service (including charter 
service) on a regular and continuing basis. It is used in category (7) 
of the definition of ``place of public accommodation,'' which includes 
stations used for specified public transportation.
    The effect of this definition, which excludes transportation by 
aircraft, is that it excludes privately operated airports from coverage 
as places of public accommodation. However, places of public 
accommodation located within airports would be covered by this part. 
Airports that are operated by public entities are covered by title II of 
the ADA and, if they are operated as part of a program receiving Federal 
financial assistance, by section 504 of the Rehabilitation Act. 
Privately operated airports are similarly covered by section 504 if they 
are operated as part of a program receiving Federal financial 
assistance. The operations of any portion of any airport that are under 
the control of an air carrier are covered by the Air Carrier Access Act. 
In addition, airports are covered as commercial facilities under this 
rule.
    ``State.'' The definition of ``State'' is identical to the statutory 
definition in section 3(3) of the ADA. The term is used in the 
definitions of ``commerce'' and ``public entity'' in Sec. 36.104.
    ``Undue burden.'' The definition of ``undue burden'' is analogous to 
the statutory definition of ``undue hardship'' in employment under 
section 101(10) of the ADA. The term undue burden means ``significant 
difficulty or expense'' and serves as a limitation on the obligation to 
provide auxiliary aids and services under Sec. 36.303 and Secs. 36.309 
(b)(3) and

[[Page 619]]

(c)(3). Further discussion of the meaning and application of the term 
undue burden may be found in the preamble discussion of Sec. 36.303.
    The definition lists factors considered in determining whether 
provision of an auxiliary aid or service in any particular circumstance 
would result in an undue burden. The factors to be considered in 
determining whether an action would result in an undue burden are 
identical to those to be considered in determining whether an action is 
readily achievable. However, ``readily achievable'' is a lower standard 
than ``undue burden'' in that it requires a lower level of effort on the 
part of the public accommodation (see Education and Labor report at 
109).
    Further analysis of the factors to be considered in determining 
undue burden may be found in the preamble discussion of the definition 
of the term ``readily achievable.''

                     Subpart B--General Requirements

    Subpart B includes general prohibitions restricting a public 
accommodation from discriminating against people with disabilities by 
denying them the opportunity to benefit from goods or services, by 
giving them unequal goods or services, or by giving them different or 
separate goods or services. These general prohibitions are patterned 
after the basic, general prohibitions that exist in other civil rights 
laws that prohibit discrimination on the basis of race, sex, color, 
religion, or national origin.

                         Section 36.201  General

    Section 36.201(a) contains the general rule that prohibits 
discrimination on the basis of disability in the full and equal 
enjoyment of goods, services, facilities, privileges, advantages, and 
accommodations of any place of public accommodation.
    Full and equal enjoyment means the right to participate and to have 
an equal opportunity to obtain the same results as others to the extent 
possible with such accommodations as may be required by the Act and 
these regulations. It does not mean that an individual with a disability 
must achieve an identical result or level of achievement as persons 
without a disability. For example, an exercise class cannot exclude a 
person who uses a wheelchair because he or she cannot do all of the 
exercises and derive the same result from the class as persons without a 
disability.
    Section 302(a) of the ADA states that the prohibition against 
discrimination applies to ``any person who owns, leases (or leases to), 
or operates a place of public accommodation,'' and this language is 
reflected in Sec. 36.201(a). The coverage is quite extensive and would 
include sublessees, management companies, and any other entity that 
owns, leases, leases to, or operates a place of public accommodation, 
even if the operation is only for a short time.
    The first sentence of paragraph (b) of Sec. 36.201 reiterates the 
general principle that both the landlord that owns the building that 
houses the place of public accommodation, as well as the tenant that 
owns or operates the place of public accommodation, are public 
accommodations subject to the requirements of this part. Although the 
statutory language could be interpreted as placing equal responsibility 
on all private entities, whether lessor, lessee, or operator of a public 
accommodation, the committee reports suggest that liability may be 
allocated. Section 36.201(b) of that section of the proposed rule 
attempted to allocate liability in the regulation itself. Paragraph 
(b)(2) of that section made a specific allocation of liability for the 
obligation to take readily achievable measures to remove barriers, and 
paragraph (b)(3) made a specific allocation for the obligation to 
provide auxiliary aids.
    Numerous commenters pointed out that these allocations would not 
apply in all situations. Some asserted that paragraph (b)(2) of the 
proposed rule only addressed the situation when a lease gave the tenant 
the right to make alterations with permission of the landlord, but 
failed to address other types of leases, e.g., those that are silent on 
the right to make alterations, or those in which the landlord is not 
permitted to enter a tenant's premises to make alterations. Several 
commenters noted that many leases contain other clauses more relevant to 
the ADA than the alterations clause. For example, many leases contain a 
``compliance clause,'' a clause which allocates responsibility to a 
particular party for compliance with all relevant Federal, State, and 
local laws. Many commenters pointed out various types of relationships 
that were left unaddressed by the regulation, e.g., sale and leaseback 
arrangements where the landlord is a financial institution with no 
control or responsibility for the building; franchises; subleases; and 
management companies which, at least in the hotel industry, often have 
control over operations but are unable to make modifications to the 
premises.
    Some commenters raised specific questions as to how the barrier 
removal allocation would work as a practical matter. Paragraph (b)(2) of 
the proposed rule provided that the burden of making readily achievable 
modifications within the tenant's place of public accommodation would 
shift to the landlord when the modifications were not readily achievable 
for the tenant or when the landlord denied a tenant's request for 
permission to make such modifications. Commenters noted that the rule 
did not specify exactly when the burden would actually shift from tenant 
to landlord and whether the landlord would have to accept a tenant's 
word that a particular action is not readily achievable.

[[Page 620]]

Others questioned if the tenant should be obligated to use alternative 
methods of barrier removal before the burden shifts. In light of the 
fact that readily achievable removal of barriers can include such 
actions as moving of racks and displays, some commenters doubted the 
appropriateness of requiring a landlord to become involved in day-to-day 
operations of its tenants' businesses.
    The Department received widely differing comments in response to the 
preamble question asking whether landlord and tenant obligations should 
vary depending on the length of time remaining on an existing lease. 
Many suggested that tenants should have no responsibilities in ``shorter 
leases,'' which commenters defined as ranging anywhere from 90 days to 
three years. Other commenters pointed out that the time remaining on the 
lease should not be a factor in the rule's allocation of 
responsibilities, but is relevant in determining what is readily 
achievable for the tenant. The Department agrees with this latter 
approach and will interpret the rule in that manner.
    In recognition of the somewhat limited applicability of the 
allocation scheme contained in the proposed rule, paragraphs (b)(2) and 
(b)(3) have been deleted from the final rule. The Department has 
substituted instead a statement that allocation of responsibility as 
between the parties for taking readily achievable measures to remove 
barriers and to provide auxiliary aids and services both in common areas 
and within places of public accommodation may be determined by the lease 
or other contractual relationships between the parties. The ADA was not 
intended to change existing landlord/tenant responsibilities as set 
forth in the lease. By deleting specific provisions from the rule, the 
Department gives full recognition to this principle. As between the 
landlord and tenant, the extent of responsibility for particular 
obligations may be, and in many cases probably will be, determined by 
contract.
    The suggested allocation of responsibilities contained in the 
proposed rule may be used if appropriate in a particular situation. 
Thus, the landlord would generally be held responsible for making 
readily achievable changes and providing auxiliary aids and services in 
common areas and for modifying policies, practices, or procedures 
applicable to all tenants, and the tenant would generally be responsible 
for readily achievable changes, provision of auxiliary aids, and 
modification of policies within its own place of public accommodation.
    Many commenters objected to the proposed rule's allocation of 
responsibility for providing auxiliary aids and services solely to the 
tenant, pointing out that this exclusive allocation may not be 
appropriate in the case of larger public accommodations that operate 
their businesses by renting space out to smaller public accommodations. 
For example, large theaters often rent to smaller traveling companies 
and hospitals often rely on independent contractors to provide 
childbirth classes. Groups representing persons with disabilities 
objected to the proposed rule because, in their view, it permitted the 
large theater or hospital to evade ADA responsibilities by leasing to 
independent smaller entities. They suggested that these types of public 
accommodations are not really landlords because they are in the business 
of providing a service, rather than renting space, as in the case of a 
shopping center or office building landlord. These commenters believed 
that responsibility for providing auxiliary aids should shift to the 
landlord, if the landlord relies on a smaller public accommodation or 
independent contractor to provide services closely related to those of 
the larger public accommodation, and if the needed auxiliary aids prove 
to be an undue burden for the smaller public accommodation. The final 
rule no longer lists specific allocations to specific parties but, 
rather, leaves allocation of responsibilities to the lease negotiations. 
Parties are, therefore, free to allocate the responsibility for 
auxiliary aids.
    Section 36.201(b)(4) of the proposed rule, which provided that 
alterations by a tenant on its own premises do not trigger a path of 
travel obligation on the landlord, has been moved to Sec. 36.403(d) of 
the final rule.
    An entity that is not in and of itself a public accommodation, such 
as a trade association or performing artist, may become a public 
accommodation when it leases space for a conference or performance at a 
hotel, convention center, or stadium. For an entity to become a public 
accommodation when it is the lessee of space, however, the Department 
believes that consideration in some form must be given. Thus, a Boy 
Scout troop that accepts donated space does not become a public 
accommodation because the troop has not ``leased'' space, as required by 
the ADA.
    As a public accommodation, the trade association or performing 
artist will be responsible for compliance with this part. Specific 
responsibilities should be allocated by contract, but, generally, the 
lessee should be responsible for providing auxiliary aids and services 
(which could include interpreters, Braille programs, etc.) for the 
participants in its conference or performance as well as for assuring 
that displays are accessible to individuals with disabilities.
    Some commenters suggested that the rule should allocate 
responsibilities for areas other than removal of barriers and auxiliary 
aids. The final rule leaves allocation of all areas to the lease 
negotiations. However, in general landlords should not be given 
responsibility for policies a tenant applies in operating its business, 
if such policies are solely those of the tenant. Thus, if a restaurant 
tenant discriminates by refusing to seat a

[[Page 621]]

patron, it would be the tenant, and not the landlord, who would be 
responsible, because the discriminatory policy is imposed solely by the 
tenant and not by the landlord. If, however, a tenant refuses to modify 
a ``no pets'' rule to allow service animals in its restaurant because 
the landlord mandates such a rule, then both the landlord and the tenant 
would be liable for violation of the ADA when a person with a service 
dog is refused entrance. The Department wishes to emphasize, however, 
that the parties are free to allocate responsibilities in any way they 
choose.
    Private clubs are also exempt from the ADA. However, consistent with 
title II of the Civil Rights Act (42 U.S.C. 2000a(e), a private club is 
considered a public accommodation to the extent that ``the facilities of 
such establishment are made available to the customers or patrons'' of a 
place of public accommodation. Thus, if a private club runs a day care 
center that is open exclusively to its own members, the club, like the 
church in the example above, would have no responsibility for compliance 
with the ADA. Nor would the day care center have any responsibilities 
because it is part of the private club exempt from the ADA.
    On the other hand, if the private club rents to a day care center 
that is open to the public, then the private club would have the same 
obligations as any other public accommodation that functions as a 
landlord with respect to compliance with title III within the day care 
center. In such a situation, both the private club that ``leases to'' a 
public accommodation and the public accommodation lessee (the day care 
center) would be subject to the ADA. This same principle would apply if 
the private club were to rent to, for example, a bar association, which 
is not generally a public accommodation but which, as explained above, 
becomes a public accommodation when it leases space for a conference.

                       Section 36.202  Activities

    Section 36.202 sets out the general forms of discrimination 
prohibited by title III of the ADA. These general prohibitions are 
further refined by the specific prohibitions in subpart C. Section 
36.213 makes clear that the limitations on the ADA's requirements 
contained in subpart C, such as ``necessity'' (Sec. 36.301(a)) and 
``safety'' (Sec. 36.301(b)), are applicable to the prohibitions in 
Sec. 36.202. Thus, it is unnecessary to add these limitations to 
Sec. 36.202 as has been requested by some commenters. In addition, the 
language of Sec. 36.202 very closely tracks the language of section 
302(b)(1)(A) of the Act, and that statutory provision does not expressly 
contain these limitations.
    Deny participation--Section 36.202(a) provides that it is 
discriminatory to deny a person with a disability the right to 
participate in or benefit from the goods, services, facilities, 
privileges, advantages, or accommodations of a place of public 
accommodation.
    A public accommodation may not exclude persons with disabilities on 
the basis of disability for reasons other than those specifically set 
forth in this part. For example, a public accommodation cannot refuse to 
serve a person with a disability because its insurance company 
conditions coverage or rates on the absence of persons with 
disabilities. This is a frequent basis of exclusion from a variety of 
community activities and is prohibited by this part.
    Unequal benefit--Section 36.202(b) prohibits services or 
accommodations that are not equal to those provided others. For example, 
persons with disabilities must not be limited to certain performances at 
a theater.
    Separate benefit--Section 36.202(c) permits different or separate 
benefits or services only when necessary to provide persons with 
disabilities opportunities as effective as those provided others. This 
paragraph permitting separate benefits ``when necessary'' should be read 
together with Sec. 36.203(a), which requires integration in ``the most 
integrated setting appropriate to the needs of the individual.'' The 
preamble to that section provides further guidance on separate programs. 
Thus, this section would not prohibit the designation of parking spaces 
for persons with disabilities.
    Each of the three paragraphs (a)-(c) prohibits discrimination 
against an individual or class of individuals ``either directly or 
through contractual, licensing, or other arrangements.'' The intent of 
the contractual prohibitions of these paragraphs is to prohibit a public 
accommodation from doing indirectly, through a contractual relationship, 
what it may not do directly. Thus, the ``individual or class of 
individuals'' referenced in the three paragraphs is intended to refer to 
the clients and customers of the public accommodation that entered into 
a contractual arrangement. It is not intended to encompass the clients 
or customers of other entities. A public accommodation, therefore, is 
not liable under this provision for discrimination that may be practiced 
by those with whom it has a contractual relationship, when that 
discrimination is not directed against its own clients or customers. For 
example, if an amusement park contracts with a food service company to 
operate its restaurants at the park, the amusement park is not 
responsible for other operations of the food service company that do not 
involve clients or customers of the amusement park. Section 36.202(d) 
makes this clear by providing that the term ``individual or class of 
individuals'' refers to the clients or customers of the public 
accommodation that enters into the contractual, licensing, or other 
arrangement.

[[Page 622]]

                   Section 36.203  Integrated Settings

    Section 36.203 addresses the integration of persons with 
disabilities. The ADA recognizes that the provision of goods and 
services in an integrated manner is a fundamental tenet of 
nondiscrimination on the basis of disability. Providing segregated 
accommodations and services relegates persons with disabilities to the 
status of second-class citizens. For example, it would be a violation of 
this provision to require persons with mental disabilities to eat in the 
back room of a restaurant or to refuse to allow a person with a 
disability the full use of a health spa because of stereotypes about the 
person's ability to participate. Section 36.203(a) states that a public 
accommodation shall afford goods, services, facilities, privileges, 
advantages, and accommodations to an individual with a disability in the 
most integrated setting appropriate to the needs of the individual. 
Section 36.203(b) specifies that, notwithstanding the existence of 
separate or different programs or activities provided in accordance with 
this section, an individual with a disability shall not be denied the 
opportunity to participate in such programs or activities that are not 
separate or different. Section 306.203(c), which is derived from section 
501(d) of the Americans with Disabilities Act, states that nothing in 
this part shall be construed to require an individual with a disability 
to accept an accommodation, aid, service, opportunity, or benefit that 
he or she chooses not to accept.
    Taken together, these provisions are intended to prohibit exclusion 
and segregation of individuals with disabilities and the denial of equal 
opportunities enjoyed by others, based on, among other things, 
presumptions, patronizing attitudes, fears, and stereotypes about 
individuals with disabilities. Consistent with these standards, public 
accommodations are required to make decisions based on facts applicable 
to individuals and not on the basis of presumptions as to what a class 
of individuals with disabilities can or cannot do.
    Sections 36.203 (b) and (c) make clear that individuals with 
disabilities cannot be denied the opportunity to participate in programs 
that are not separate or different. This is an important and overarching 
principle of the Americans with Disabilities Act. Separate, special, or 
different programs that are designed to provide a benefit to persons 
with disabilities cannot be used to restrict the participation of 
persons with disabilities in general, integrated activities.
    For example, a person who is blind may wish to decline participating 
in a special museum tour that allows persons to touch sculptures in an 
exhibit and instead tour the exhibit at his or her own pace with the 
museum's recorded tour. It is not the intent of this section to require 
the person who is blind to avail himself or herself of the special tour. 
Modified participation for persons with disabilities must be a choice, 
not a requirement.
    Further, it would not be a violation of this section for an 
establishment to offer recreational programs specially designed for 
children with mobility impairments in those limited circumstances. 
However, it would be a violation of this section if the entity then 
excluded these children from other recreational services made available 
to nondisabled children, or required children with disabilities to 
attend only designated programs.
    Many commenters asked that the Department clarify a public 
accommodation's obligations within the integrated program when it offers 
a separate program, but an individual with a disability chooses not to 
participate in the separate program. It is impossible to make a blanket 
statement as to what level of auxiliary aids or modifications are 
required in the integrated program. Rather, each situation must be 
assessed individually. Assuming the integrated program would be 
appropriate for a particular individual, the extent to which that 
individual must be provided with modifications will depend not only on 
what the individual needs but also on the limitations set forth in 
subpart C. For example, it may constitute an undue burden for a 
particular public accommodation, which provides a full-time interpreter 
in its special guided tour for individuals with hearing impairments, to 
hire an additional interpreter for those individuals who choose to 
attend the integrated program. The Department cannot identify 
categorically the level of assistance or aid required in the integrated 
program.
    The preamble to the proposed rule contained a statement that some 
interpreted as encouraging the continuation of separate schools, 
sheltered workshops, special recreational programs, and other similar 
programs. It is important to emphasize that Sec. 36.202(c) only calls 
for separate programs when such programs are ``necessary'' to provide as 
effective an opportunity to individuals with disabilities as to other 
individuals. Likewise, Sec. 36.203(a) only permits separate programs 
when a more integrated setting would not be ``appropriate.'' Separate 
programs are permitted, then, in only limited circumstances. The 
sentence at issue has been deleted from the preamble because it was too 
broadly stated and had been erroneously interpreted as Departmental 
encouragement of separate programs without qualification.
    The proposed rule's reference in Sec. 36.203(b) to separate programs 
or activities provided in accordance with ``this section'' has been 
changed to ``this subpart'' in recognition of the fact that separate 
programs or activities

[[Page 623]]

may, in some limited circumstances, be permitted not only by 
Sec. 36.203(a) but also by Sec. 36.202(c).
    In addition, some commenters suggested that the individual with the 
disability is the only one who can decide whether a setting is 
``appropriate'' and what the ``needs'' are. Others suggested that only 
the public accommodation can make these determinations. The regulation 
does not give exclusive responsibility to either party. Rather, the 
determinations are to be made based on an objective view, presumably one 
which would take into account views of both parties.
    Some commenters expressed concern that Sec. 36.203(c), which states 
that nothing in the rule requires an individual with a disability to 
accept special accommodations and services provided under the ADA, could 
be interpreted to allow guardians of infants or older people with 
disabilities to refuse medical treatment for their wards. Section 
36.203(c) has been revised to make it clear that paragraph (c) is 
inapplicable to the concern of the commenters. A new paragraph (c)(2) 
has been added stating that nothing in the regulation authorizes the 
representative or guardian of an individual with a disability to decline 
food, water, medical treatment, or medical services for that individual. 
New paragraph (c) clarifies that neither the ADA nor the regulation 
alters current Federal law ensuring the rights of incompetent 
individuals with disabilities to receive food, water, and medical 
treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 
5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 
U.S.C 794); Developmentally Disabled Assistance and Bill of Rights Act 
(42 U.S.C. 6042).
    Sections 36.203(c) (1) and (2) are based on section 501(d) of the 
ADA. Section Sec. 501(d) was designed to clarify that nothing in the ADA 
requires individuals with disabilities to accept special accommodations 
and services for individuals with disabilities that may segregate them:

    The Committee added this section (501(d)) to clarify that nothing in 
the ADA is intended to permit discriminatory treatment on the basis of 
disability, even when such treatment is rendered under the guise of 
providing an accommodation, service, aid or benefit to the individual 
with disability. For example, a blind individual may choose not to avail 
himself or herself of the right to go to the front of a line, even if a 
particular public accommodation has chosen to offer such a modification 
of a policy for blind individuals. Or, a blind individual may choose to 
decline to participate in a special museum tour that allows persons to 
touch sculptures in an exhibit and instead tour the exhibits at his or 
her own pace with the museum's recorded tour.

(Judiciary report at 71-72.) The Act is not to be construed to mean that 
an individual with disabilities must accept special accommodations and 
services for individuals with disabilities when that individual chooses 
to participate in the regular services already offered. Because medical 
treatment, including treatment for particular conditions, is not a 
special accommodation or service for individuals with disabilities under 
section 501(d), neither the Act nor this part provides affirmative 
authority to suspend such treatment. Section 501(d) is intended to 
clarify that the Act is not designed to foster discrimination through 
mandatory acceptance of special services when other alternatives are 
provided; this concern does not reach to the provision of medical 
treatment for the disabling condition itself.
    Section 36.213 makes clear that the limitations contained in subpart 
C are to be read into subpart B. Thus, the integration requirement is 
subject to the various defenses contained in subpart C, such as safety, 
if eligibility criteria are at issue (Sec. 36.301(b)), or fundamental 
alteration and undue burden, if the concern is provision of auxiliary 
aids (Sec. 36.303(a)).

                 Section 36.204  Administrative Methods

    Section 36.204 specifies that an individual or entity shall not, 
directly, or through contractual or other arrangements, utilize 
standards or criteria or methods of administration that have the effect 
of discriminating on the basis of disability or that perpetuate the 
discrimination of others who are subject to common administrative 
control. The preamble discussion of Sec. 36.301 addresses eligibility 
criteria in detail.
    Section 36.204 is derived from section 302(b)(1)(D) of the Americans 
with Disabilities Act, and it uses the same language used in the 
employment section of the ADA (section 102(b)(3)). Both sections 
incorporate a disparate impact standard to ensure the effectiveness of 
the legislative mandate to end discrimination. This standard is 
consistent with the interpretation of section 504 by the U.S. Supreme 
Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate 
explained that members of Congress made numerous statements during 
passage of section 504 regarding eliminating architectural barriers, 
providing access to transportation, and eliminating discriminatory 
effects of job qualification procedures. The Court then noted: ``These 
statements would ring hollow if the resulting legislation could not 
rectify the harms resulting from action that discriminated by effect as 
well as by design.'' Id at 297 (footnote omitted).
    Of course, Sec. 36.204 is subject to the various limitations 
contained in subpart C including,

[[Page 624]]

for example, necessity (Sec. 36.301(a)), safety (Sec. 36.301(b)), 
fundamental alteration (Sec. 36.302(a)), readily achievable 
(Sec. 36.304(a)), and undue burden (Sec. 36.303(a)).

                       Section 36.205  Association

    Section 36.205 implements section 302(b)(1)(E) of the Act, which 
provides that a public accommodation shall not exclude or otherwise deny 
equal goods, services, facilities, privileges, advantages, 
accommodations, or other opportunities to an individual or entity 
because of the known disability of an individual with whom the 
individual or entity is known to have a relationship or association. 
This section is unchanged from the proposed rule.
    The individuals covered under this section include any individuals 
who are discriminated against because of their known association with an 
individual with a disability. For example, it would be a violation of 
this part for a day care center to refuse admission to a child because 
his or her brother has HIV disease.
    This protection is not limited to those who have a familial 
relationship with the individual who has a disability. If a place of 
public accommodation refuses admission to a person with cerebral palsy 
and his or her companions, the companions have an independent right of 
action under the ADA and this section.
    During the legislative process, the term ``entity'' was added to 
section 302(b)(1)(E) to clarify that the scope of the provision is 
intended to encompass not only persons who have a known association with 
a person with a disability, but also entities that provide services to 
or are otherwise associated with such individuals. This provision was 
intended to ensure that entities such as health care providers, 
employees of social service agencies, and others who provide 
professional services to persons with disabilities are not subjected to 
discrimination because of their professional association with persons 
with disabilities. For example, it would be a violation of this section 
to terminate the lease of a entity operating an independent living 
center for persons with disabilities, or to seek to evict a health care 
provider because that individual or entity provides services to persons 
with mental impairments.

                 Section 36.206  Retaliation or Coercion

    Section 36.206 implements section 503 of the ADA, which prohibits 
retaliation against any individual who exercises his or her rights under 
the Act. This section is unchanged from the proposed rule. Paragraph (a) 
of Sec. 36.206 provides that no private entity or public entity shall 
discriminate against any individual because that individual has 
exercised his or her right to oppose any act or practice made unlawful 
by this part, or because that individual made a charge, testified, 
assisted, or participated in any manner in an investigation, proceeding, 
or hearing under the Act or this part.
    Paragraph (b) provides that no private entity or public entity shall 
coerce, intimidate, threaten, or interfere with any individual in the 
exercise of his or her rights under this part or because that individual 
aided or encouraged any other individual in the exercise or enjoyment of 
any right granted or protected by the Act or this part.
    Illustrations of practices prohibited by this section are contained 
in paragraph (c), which is modeled on a similar provision in the 
regulations issued by the Department of Housing and Urban Development to 
implement the Fair Housing Act (see 24 CFR 100.400(c)(l)). Prohibited 
actions may include:
    (1) Coercing an individual to deny or limit the benefits, services, 
or advantages to which he or she is entitled under the Act or this part;
    (2) Threatening, intimidating, or interfering with an individual who 
is seeking to obtain or use the goods, services, facilities, privileges, 
advantages, or accommodations of a public accommodation;
    (3) Intimidating or threatening any person because that person is 
assisting or encouraging an individual or group entitled to claim the 
rights granted or protected by the Act or this part to exercise those 
rights; or
    (4) Retaliating against any person because that person has 
participated in any investigation or action to enforce the Act or this 
part.
    This section protects not only individuals who allege a violation of 
the Act or this part, but also any individuals who support or assist 
them. This section applies to all investigations or proceedings 
initiated under the Act or this part without regard to the ultimate 
resolution of the underlying allegations. Because this section prohibits 
any act of retaliation or coercion in response to an individual's effort 
to exercise rights established by the Act and this part (or to support 
the efforts of another individual), the section applies not only to 
public accommodations that are otherwise subject to this part, but also 
to individuals other than public accommodations or to public entities. 
For example, it would be a violation of the Act and this part for a 
private individual, e.g., a restaurant customer, to harass or intimidate 
an individual with a disability in an effort to prevent that individual 
from patronizing the restaurant. It would, likewise, be a violation of 
the Act and this part for a public entity to take adverse action against 
an employee who appeared as a witness on behalf of an individual who 
sought to enforce the Act.

[[Page 625]]

   Section 36.207  Places of Public Accommodation Located in Private 
                               Residences

    A private home used exclusively as a residence is not covered by 
title III because it is neither a ``commercial facility'' nor a ``place 
of public accommodation.'' In some situations, however, a private home 
is not used exclusively as a residence, but houses a place of public 
accommodation in all or part of a home (e.g., an accountant who meets 
with his or her clients at his or her residence). Section 36.207(a) 
provides that those portions of the private residence used in the 
operation of the place of public accommodation are covered by this part.
    For instance, a home or a portion of a home may be used as a day 
care center during the day and a residence at night. If all parts of the 
house are used for the day care center, then the entire residence is a 
place of public accommodation because no part of the house is used 
exclusively as a residence. If an accountant uses one room in the house 
solely as his or her professional office, then a portion of the house is 
used exclusively as a place of public accommodation and a portion is 
used exclusively as a residence. Section 36.207 provides that when a 
portion of a residence is used exclusively as a residence, that portion 
is not covered by this part. Thus, the portions of the accountant's 
house, other than the professional office and areas and spaces leading 
to it, are not covered by this part. All of the requirements of this 
rule apply to the covered portions, including requirements to make 
reasonable modifications in policies, eliminate discriminatory 
eligibility criteria, take readily achievable measures to remove 
barriers or provide readily achievable alternatives (e.g., making house 
calls), provide auxiliary aids and services and undertake only 
accessible new construction and alterations.
    Paragraph (b) was added in response to comments that sought 
clarification on the extent of coverage of the private residence used as 
the place of public accommodation. The final rule makes clear that the 
place of accommodation extends to all areas of the home used by clients 
and customers of the place of public accommodation. Thus, the ADA would 
apply to any door or entry way, hallways, a restroom, if used by 
customers and clients; and any other portion of the residence, interior 
or exterior, used by customers or clients of the public accommodation. 
This interpretation is simply an application of the general rule for all 
public accommodations, which extends statutory requirements to all 
portions of the facility used by customers and clients, including, if 
applicable, restrooms, hallways, and approaches to the public 
accommodation. As with other public accommodations, barriers at the 
entrance and on the sidewalk leading up to the public accommodation, if 
the sidewalk is under the control of the public accommodation, must be 
removed if doing so is readily achievable.
    The Department recognizes that many businesses that operate out of 
personal residences are quite small, often employing only the homeowner 
and having limited total revenues. In these circumstances the effect of 
ADA coverage would likely be quite minimal. For example, because the 
obligation to remove existing architectural barriers is limited to those 
that are easily accomplishable without much difficulty or expense (see 
Sec. 36.304), the range of required actions would be quite modest. It 
might not be readily achievable for such a place of public accommodation 
to remove any existing barriers. If it is not readily achievable to 
remove existing architectural barriers, a public accommodation located 
in a private residence may meet its obligations under the Act and this 
part by providing its goods or services to clients or customers with 
disabilities through the use of alternative measures, including delivery 
of goods or services in the home of the customer or client, to the 
extent that such alternative measures are readily achievable (See 
Sec. 36.305).
    Some commenters asked for clarification as to how the new 
construction and alteration standards of subpart D will apply to 
residences. The new construction standards only apply to the extent that 
the residence or portion of the residence was designed or intended for 
use as a public accommodation. Thus, for example, if a portion of a home 
is designed or constructed for use exclusively as a lawyer's office or 
for use both as a lawyer's office and for residential purposes, then it 
must be designed in accordance with the new construction standards in 
the appendix. Likewise, if a homeowner is undertaking alterations to 
convert all or part of his residence to a place of public accommodation, 
that work must be done in compliance with the alterations standards in 
the appendix.
    The preamble to the proposed rule addressed the applicable 
requirements when a commercial facility is located in a private 
residence. That situation is now addressed in Sec. 36.401(b) of subpart 
D.

                      Section 36.208  Direct Threat

    Section 36.208(a) implements section 302(b)(3) of the Act by 
providing that this part does not require a public accommodation to 
permit an individual to participate in or benefit from the goods, 
services, facilities, privileges, advantages and accommodations of the 
public accommodation, if that individual poses a direct threat to the 
health or safety of others. This section is unchanged from the proposed 
rule.
    The Department received a significant number of comments on this 
section. Commenters representing individuals with disabilities generally 
supported this provision,

[[Page 626]]

but suggested revisions to further limit its application. Commenters 
representing public accommodations generally endorsed modifications that 
would permit a public accommodation to exercise its own judgment in 
determining whether an individual poses a direct threat.
    The inclusion of this provision is not intended to imply that 
persons with disabilities pose risks to others. It is intended to 
address concerns that may arise in this area. It establishes a strict 
standard that must be met before denying service to an individual with a 
disability or excluding that individual from participation.
    Paragraph (b) of this section explains that a ``direct threat'' is a 
significant risk to the health or safety of others that cannot be 
eliminated by a modification of policies, practices, or procedures, or 
by the provision of auxiliary aids and services. This paragraph codifies 
the standard first applied by the Supreme Court in School Board of 
Nassau County v. Arline, 480 U.S. 273 (1987), in which the Court held 
that an individual with a contagious disease may be an ``individual with 
handicaps'' under section 504 of the Rehabilitation Act. In Arline, the 
Supreme Court recognized that there is a need to balance the interests 
of people with disabilities against legitimate concerns for public 
safety. Although persons with disabilities are generally entitled to the 
protection of this part, a person who poses a significant risk to others 
may be excluded if reasonable modifications to the public 
accommodation's policies, practices, or procedures will not eliminate 
that risk. The determination that a person poses a direct threat to the 
health or safety of others may not be based on generalizations or 
stereotypes about the effects of a particular disability; it must be 
based on an individual assessment that conforms to the requirements of 
paragraph (c) of this section.
    Paragraph (c) establishes the test to use in determining whether an 
individual poses a direct threat to the health or safety of others. A 
public accommodation is required to make an individualized assessment, 
based on reasonable judgment that relies on current medical evidence or 
on the best available objective evidence, to determine: The nature, 
duration, and severity of the risk; the probability that the potential 
injury will actually occur; and whether reasonable modifications of 
policies, practices, or procedures will mitigate the risk. This is the 
test established by the Supreme Court in Arline. Such an inquiry is 
essential if the law is to achieve its goal of protecting disabled 
individuals from discrimination based on prejudice, stereotypes, or 
unfounded fear, while giving appropriate weight to legitimate concerns, 
such as the need to avoid exposing others to significant health and 
safety risks. Making this assessment will not usually require the 
services of a physician. Sources for medical knowledge include guidance 
from public health authorities, such as the U.S. Public Health Service, 
the Centers for Disease Control, and the National Institutes of Health, 
including the National Institute of Mental Health.
    Many of the commenters sought clarification of the inquiry 
requirement. Some suggested that public accommodations should be 
prohibited from making any inquiries to determine if an individual with 
a disability would pose a direct threat to other persons. The Department 
believes that to preclude all such inquiries would be inappropriate. 
Under Sec. 36.301 of this part, a public accommodation is permitted to 
establish eligibility criteria necessary for the safe operation of the 
place of public accommodation. Implicit in that right is the right to 
ask if an individual meets the criteria. However, any eligibility or 
safety standard established by a public accommodation must be based on 
actual risk, not on speculation or stereotypes; it must be applied to 
all clients or customers of the place of public accommodation; and 
inquiries must be limited to matters necessary to the application of the 
standard.
    Some commenters suggested that the test established in the Arline 
decision, which was developed in the context of an employment case, is 
too stringent to apply in a public accommodations context where 
interaction between the public accommodation and its client or customer 
is often very brief. One suggested alternative was to permit public 
accommodations to exercise ``good faith'' judgment in determining 
whether an individual poses a direct threat, particularly when a public 
accommodation is dealing with a client or customer engaged in disorderly 
or disruptive behavior.
    The Department believes that the ADA clearly requires that any 
determination to exclude an individual from participation must be based 
on an objective standard. A public accommodation may establish neutral 
eligibility criteria as a condition of receiving its goods or services. 
As long as these criteria are necessary for the safe provision of the 
public accommodation's goods and services and applied neutrally to all 
clients or customers, regardless of whether they are individuals with 
disabilities, a person who is unable to meet the criteria may be 
excluded from participation without inquiry into the underlying reason 
for the inability to comply. In places of public accommodation such as 
restaurants, theaters, or hotels, where the contact between the public 
accommodation and its clients is transitory, the uniform application of 
an eligibility standard precluding violent or disruptive behavior by any 
client or customer should be sufficient to enable a public accommodation 
to conduct its business in an orderly manner.

[[Page 627]]

    Some other commenters asked for clarification of the application of 
this provision to persons, particularly children, who have short-term, 
contagious illnesses, such as fevers, influenza, or the common cold. It 
is common practice in schools and day care settings to exclude persons 
with such illnesses until the symptoms subside. The Department believes 
that these commenters misunderstand the scope of this rule. The ADA only 
prohibits discrimination against an individual with a disability. Under 
the ADA and this part, a ``disability'' is defined as a physical or 
mental impairment that substantially limits one or more major life 
activities. Common, short-term illnesses that predictably resolve 
themselves within a matter of days do not ``substantially limit'' a 
major life activity; therefore, it is not a violation of this part to 
exclude an individual from receiving the services of a public 
accommodation because of such transitory illness. However, this part 
does apply to persons who have long-term illnesses. Any determination 
with respect to a person who has a chronic or long-term illness must be 
made in compliance with the requirements of this section.

                  Section 36.209  Illegal Use of Drugs

    Section 36.209 effectuates section 510 of the ADA, which clarifies 
the Act's application to people who use drugs illegally. Paragraph (a) 
provides that this part does not prohibit discrimination based on an 
individual's current illegal use of drugs.
    The Act and the regulation distinguish between illegal use of drugs 
and the legal use of substances, whether or not those substances are 
``controlled substances,'' as defined in the Controlled Substances Act 
(21 U.S.C. 812). Some controlled substances are prescription drugs that 
have legitimate medical uses. Section 36.209 does not affect use of 
controlled substances pursuant to a valid prescription, under 
supervision by a licensed health care professional, or other use that is 
authorized by the Controlled Substances Act or any other provision of 
Federal law. It does apply to illegal use of those substances, as well 
as to illegal use of controlled substances that are not prescription 
drugs. The key question is whether the individual's use of the substance 
is illegal, not whether the substance has recognized legal uses. Alcohol 
is not a controlled substance, so use of alcohol is not addressed by 
Sec. 36.209. Alcoholics are individuals with disabilities, subject to 
the protections of the statute.
    A distinction is also made between the use of a substance and the 
status of being addicted to that substance. Addiction is a disability, 
and addicts are individuals with disabilities protected by the Act. The 
protection, however, does not extend to actions based on the illegal use 
of the substance. In other words, an addict cannot use the fact of his 
or her addiction as a defense to an action based on illegal use of 
drugs. This distinction is not artificial. Congress intended to deny 
protection to people who engage in the illegal use of drugs, whether or 
not they are addicted, but to provide protection to addicts so long as 
they are not currently using drugs.
    A third distinction is the difficult one between current use and 
former use. The definition of ``current illegal use of drugs'' in 
Sec. 36.104, which is based on the report of the Conference Committee, 
H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990), is ``illegal 
use of drugs that occurred recently enough to justify a reasonable 
belief that a person's drug use is current or that continuing use is a 
real and ongoing problem.''
    Paragraph (a)(2)(i) specifies that an individual who has 
successfully completed a supervised drug rehabilitation program or has 
otherwise been rehabilitated successfully and who is not engaging in 
current illegal use of drugs is protected. Paragraph (a)(2)(ii) 
clarifies that an individual who is currently participating in a 
supervised rehabilitation program and is not engaging in current illegal 
use of drugs is protected. Paragraph (a)(2)(iii) provides that a person 
who is erroneously regarded as engaging in current illegal use of drugs, 
but who is not engaging in such use, is protected.
    Paragraph (b) provides a limited exception to the exclusion of 
current illegal users of drugs from the protections of the Act. It 
prohibits denial of health services, or services provided in connection 
with drug rehabilitation, to an individual on the basis of current 
illegal use of drugs, if the individual is otherwise entitled to such 
services. As explained further in the discussion of Sec. 36.302, a 
health care facility that specializes in a particular type of treatment, 
such as care of burn victims, is not required to provide drug 
rehabilitation services, but it cannot refuse to treat an individual's 
burns on the grounds that the individual is illegally using drugs.
    A commenter argued that health care providers should be permitted to 
use their medical judgment to postpone discretionary medical treatment 
of individuals under the influence of alcohol or drugs. The regulation 
permits a medical practitioner to take into account an individual's use 
of drugs in determining appropriate medical treatment. Section 36.209 
provides that the prohibitions on discrimination in this part do not 
apply when the public accommodation acts on the basis of current illegal 
use of drugs. Although those prohibitions do apply under paragraph (b), 
the limitations established under this part also apply. Thus, under 
Sec. 36.208, a health care provider or other public accommodation 
covered under Sec. 36.209(b) may exclude an individual whose current 
illegal use of drugs poses a direct threat to the health or safety of 
others, and, under Sec. 36.301,

[[Page 628]]

a public accommodation may impose or apply eligibility criteria that are 
necessary for the provision of the services being offered, and may 
impose legitimate safety requirements that are necessary for safe 
operation. These same limitations also apply to individuals with 
disabilities who use alcohol or prescription drugs. The Department 
believes that these provisions address this commenter's concerns.
    Other commenters pointed out that abstention from the use of drugs 
is an essential condition for participation in some drug rehabilitation 
programs, and may be a necessary requirement in inpatient or residential 
settings. The Department believes that this comment is well-founded. 
Congress clearly did not intend to exclude from drug treatment programs 
the very individuals who need such programs because of their use of 
drugs. In such a situation, however, once an individual has been 
admitted to a program, abstention may be a necessary and appropriate 
condition to continued participation. The final rule therefore provides 
that a drug rehabilitation or treatment program may deny participation 
to individuals who use drugs while they are in the program.
    Paragraph (c) expresses Congress' intention that the Act be neutral 
with respect to testing for illegal use of drugs. This paragraph 
implements the provision in section 510(b) of the Act that allows 
entities ``to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing,'' that ensure an individual 
who is participating in a supervised rehabilitation program, or who has 
completed such a program or otherwise been rehabilitated successfully, 
is no longer engaging in the illegal use of drugs. Paragraph (c) is not 
to be construed to encourage, prohibit, restrict, or authorize the 
conducting of testing for the illegal use of drugs.
    Paragraph (c) of Sec. 36.209 clarifies that it is not a violation of 
this part to adopt or administer reasonable policies or procedures to 
ensure that an individual who formerly engaged in the illegal use of 
drugs is not currently engaging in illegal use of drugs. Any such 
policies or procedures must, of course, be reasonable, and must be 
designed to identify accurately the illegal use of drugs. This paragraph 
does not authorize inquiries, tests, or other procedures that would 
disclose use of substances that are not controlled substances or are 
taken under supervision by a licensed health care professional, or other 
uses authorized by the Controlled Substances Act or other provisions of 
Federal law, because such uses are not included in the definition of 
``illegal use of drugs.''
    One commenter argued that the rule should permit testing for lawful 
use of prescription drugs, but most favored the explanation that tests 
must be limited to unlawful use in order to avoid revealing the use of 
prescription medicine used to treat disabilities. Tests revealing legal 
use of prescription drugs might violate the prohibition in Sec. 36.301 
of attempts to unnecessarily identify the existence of a disability.

                         Section 36.210  Smoking

    Section 36.210 restates the clarification in section 501(b) of the 
Act that the Act does not preclude the prohibition of, or imposition of 
restrictions on, smoking. Some commenters argued that Sec. 36.210 does 
not go far enough, and that the regulation should prohibit smoking in 
all places of public accommodation. The reference to smoking in section 
501 merely clarifies that the Act does not require public accommodations 
to accommodate smokers by permitting them to smoke in places of public 
accommodations.

           Section 36.211  Maintenance of Accessible Features

    Section 36.211 provides that a public accommodation shall maintain 
in operable working condition those features of facilities and equipment 
that are required to be readily accessible to and usable by persons with 
disabilities by the Act or this part. The Act requires that, to the 
maximum extent feasible, facilities must be accessible to, and usable 
by, individuals with disabilities. This section recognizes that it is 
not sufficient to provide features such as accessible routes, elevators, 
or ramps, if those features are not maintained in a manner that enables 
individuals with disabilities to use them. Inoperable elevators, locked 
accessible doors, or ``accessible'' routes that are obstructed by 
furniture, filing cabinets, or potted plants are neither ``accessible 
to'' nor ``usable by'' individuals with disabilities.
    Some commenters objected that this section appeared to establish an 
absolute requirement and suggested that language from the preamble be 
included in the text of the regulation. It is, of course, impossible to 
guarantee that mechanical devices will never fail to operate. Paragraph 
(b) of the final regulation provides that this section does not prohibit 
isolated or temporary interruptions in service or access due to 
maintenance or repairs. This paragraph is intended to clarify that 
temporary obstructions or isolated instances of mechanical failure would 
not be considered violations of the Act or this part. However, allowing 
obstructions or ``out of service'' equipment to persist beyond a 
reasonable period of time would violate this part, as would repeated 
mechanical failures due to improper or inadequate maintenance. Failure 
of the public accommodation to ensure that accessible routes are 
properly maintained and free of obstructions, or failure to arrange 
prompt

[[Page 629]]

repair of inoperable elevators or other equipment intended to provide 
access, would also violate this part.
    Other commenters requested that this section be expanded to include 
specific requirements for inspection and maintenance of equipment, for 
training staff in the proper operation of equipment, and for maintenance 
of specific items. The Department believes that this section properly 
establishes the general requirement for maintaining access and that 
further, more detailed requirements are not necessary.

                        Section 36.212  Insurance

    The Department received numerous comments on proposed Sec. 36.212. 
Most supported the proposed regulation but felt that it did not go far 
enough in protecting individuals with disabilities and persons 
associated with them from discrimination. Many commenters argued that 
language from the preamble to the proposed regulation should be included 
in the text of the final regulation. Other commenters argued that even 
that language was not strong enough, and that more stringent standards 
should be established. Only a few commenters argued that the Act does 
not apply to insurance underwriting practices or the terms of insurance 
contracts. These commenters cited language from the Senate committee 
report (S. Rep. No. 116, 101st Cong., 1st Sess., at 84-86 (1989) 
(hereinafter ``Senate report'')), indicating that Congress did not 
intend to affect existing insurance practices.
    The Department has decided to adopt the language of the proposed 
rule without change. Sections 36.212 (a) and (b) restate section 501(c) 
of the Act, which provides that the Act shall not be construed to 
restrict certain insurance practices on the part of insurance companies 
and employers, as long as such practices are not used to evade the 
purposes of the Act. Section 36.212(c) is a specific application of 
Sec. 36.202(a), which prohibits denial of participation on the basis of 
disability. It provides that a public accommodation may not refuse to 
serve an individual with a disability because of limitations on coverage 
or rates in its insurance policies (see Judiciary report at 56).
    Many commenters supported the requirements of Sec. 36.212(c) in the 
proposed rule because it addressed an important reason for denial of 
services by public accommodations. One commenter argued that services 
could be denied if the insurance coverage required exclusion of people 
whose disabilities were reasonably related to the risks involved in that 
particular place of public accommodation. Sections 36.208 and 36.301 
establish criteria for denial of participation on the basis of 
legitimate safety concerns. This paragraph does not prohibit 
consideration of such concerns in insurance policies, but provides that 
any exclusion on the basis of disability must be based on the 
permissible criteria, rather than on the terms of the insurance 
contract.
    Language in the committee reports indicates that Congress intended 
to reach insurance practices by prohibiting differential treatment of 
individuals with disabilities in insurance offered by public 
accommodations unless the differences are justified. ``Under the ADA, a 
person with a disability cannot be denied insurance or be subject to 
different terms or conditions of insurance based on disability alone, if 
the disability does not pose increased risks'' (Senate report at 84; 
Education and Labor report at 136). Section 501(c) (1) of the Act was 
intended to emphasize that ``insurers may continue to sell to and 
underwrite individuals applying for life, health, or other insurance on 
an individually underwritten basis, or to service such insurance 
products, so long as the standards used are based on sound actuarial 
data and not on speculation'' (Judiciary report at 70 (emphasis added); 
see also Senate report at 85; Education and Labor report at 137).
    The committee reports indicate that underwriting and classification 
of risks must be ``based on sound actuarial principles or be related to 
actual or reasonably anticipated experience'' (see, e.g., Judiciary 
report at 71). Moreover, ``while a plan which limits certain kinds of 
coverage based on classification of risk would be allowed * * *, the 
plan may not refuse to insure, or refuse to continue to insure, or limit 
the amount, extent, or kind of coverage available to an individual, or 
charge a different rate for the same coverage solely because of a 
physical or mental impairment, except where the refusal, limitation, or 
rate differential is based on sound actuarial principles or is related 
to actual or reasonably anticipated experience'' (Senate report at 85; 
Education and Labor report at 136-37; Judiciary report at 71). The ADA, 
therefore, does not prohibit use of legitimate actuarial considerations 
to justify differential treatment of individuals with disabilities in 
insurance.
    The committee reports provide some guidance on how nondiscrimination 
principles in the disability rights area relate to insurance practices. 
For example, a person who is blind may not be denied coverage based on 
blindness independent of actuarial risk classification. With respect to 
group health insurance coverage, an individual with a pre-existing 
condition may be denied coverage for that condition for the period 
specified in the policy, but cannot be denied coverage for illness or 
injuries unrelated to the pre-existing condition. Also, a public 
accommodation may offer insurance policies that limit coverage for 
certain procedures or treatments, but may not entirely deny coverage to 
a person with a disability.

[[Page 630]]

    The Department requested comment on the extent to which data that 
would establish statistically sound correlations are available. Numerous 
commenters cited pervasive problems in the availability and cost of 
insurance for individuals with disabilities and parents of children with 
disabilities. No commenters cited specific data, or sources of data, to 
support specific exclusionary practices. Several commenters reported 
that, even when statistics are available, they are often outdated and do 
not reflect current medical technology and treatment methods. Concern 
was expressed that adequate efforts are not made to distinguish those 
individuals who are high users of health care from individuals in the 
same diagnostic groups who may be low users of health care. One insurer 
reported that ``hard data and actuarial statistics are not available to 
provide precise numerical justifications for every underwriting 
determination,'' but argued that decisions may be based on ``logical 
principles generally accepted by actuarial science and fully consistent 
with state insurance laws.'' The commenter urged that the Department 
recognize the validity of information other than statistical data as a 
basis for insurance determinations.
    The most frequent comment was a recommendation that the final 
regulation should require the insurance company to provide a copy of the 
actuarial data on which its actions are based when requested by the 
applicant. Such a requirement would be beyond anything contemplated by 
the Act or by Congress and has therefore not been included in the 
Department's final rule. Because the legislative history of the ADA 
clarifies that different treatment of individuals with disabilities in 
insurance may be justified by sound actuarial data, such actuarial data 
will be critical to any potential litigation on this issue. This 
information would presumably be obtainable in a court proceeding where 
the insurer's actuarial data was the basis for different treatment of 
persons with disabilities. In addition, under some State regulatory 
schemes, insurers may have to file such actuarial information with the 
State regulatory agency and this information may be obtainable at the 
State level.
    A few commenters representing the insurance industry conceded that 
underwriting practices in life and health insurance are clearly covered, 
but argued that property and casualty insurance are not covered. The 
Department sees no reason for this distinction. Although life and health 
insurance are the areas where the regulation will have its greatest 
application, the Act applies equally to unjustified discrimination in 
all types of insurance provided by public accommodations. A number of 
commenters, for example, reported difficulties in obtaining automobile 
insurance because of their disabilities, despite their having good 
driving records.

      Section 36.213  Relationship of Subpart 8 to Subparts C and D

    This section explains that subpart B sets forth the general 
principles of nondiscrimination applicable to all entities subject to 
this regulation, while subparts C and D provide guidance on the 
application of this part to specific situations. The specific provisions 
in subparts C and D, including the limitations on those provisions, 
control over the general provisions in circumstances where both specific 
and general provisions apply. Resort to the general provisions of 
subpart B is only appropriate where there are no applicable specific 
rules of guidance in subparts C or D. This interaction between the 
specific requirements and the general requirements operates with regard 
to contractual obligations as well.
    One illustration of this principle is its application to the 
obligation of a public accommodation to provide access to services by 
removal of architectural barriers or by alternatives to barrier removal. 
The general requirement, established in subpart B by Sec. 36.203, is 
that a public accommodation must provide its services to individuals 
with disabilities in the most integrated setting appropriate. This 
general requirement would appear to categorically prohibit 
``segregated'' seating for persons in wheelchairs. Section 36.304, 
however, only requires removal of architectural barriers to the extent 
that removal is ``readily achievable.'' If providing access to all areas 
of a restaurant, for example, would not be ``readily achievable,'' a 
public accommodation may provide access to selected areas only. Also, 
Sec. 36.305 provides that, where barrier removal is not readily 
achievable, a public accommodation may use alternative, readily 
achievable methods of making services available, such as curbside 
service or home delivery. Thus, in this manner, the specific 
requirements of Secs. 36.304 and 36.305 control over the general 
requirement of Sec. 36.203.

                    Subpart C--Specific Requirements

    In general, subpart C implements the ``specific prohibitions'' that 
comprise section 302(b)(2) of the ADA. It also addresses the 
requirements of section 309 of the ADA regarding examinations and 
courses.

                  Section 36.301  Eligibility Criteria

    Section 36.301 of the rule prohibits the imposition or application 
of eligibility criteria that screen out or tend to screen out an 
individual with a disability or any class of individuals with 
disabilities from fully and equally enjoying any goods, services, 
facilities, privileges, advantages, and accommodations, unless such 
criteria can be shown to be

[[Page 631]]

necessary for the provision of the goods, services, facilities, 
privileges, advantages, or accommodations being offered. This 
prohibition is based on section 302(b)(2)(A)(i) of the ADA.
    It would violate this section to establish exclusive or segregative 
eligibility criteria that would bar, for example, all persons who are 
deaf from playing on a golf course or all individuals with cerebral 
palsy from attending a movie theater, or limit the seating of 
individuals with Down's syndrome to only particular areas of a 
restaurant. The wishes, tastes, or preferences of other customers may 
not be asserted to justify criteria that would exclude or segregate 
individuals with disabilities.
    Section 36.301 also prohibits attempts by a public accommodation to 
unnecessarily identify the existence of a disability; for example, it 
would be a violation of this section for a retail store to require an 
individual to state on a credit application whether the applicant has 
epilepsy, mental illness, or any other disability, or to inquire 
unnecessarily whether an individual has HIV disease.
    Section 36.301 also prohibits policies that unnecessarily impose 
requirements or burdens on individuals with disabilities that are not 
placed on others. For example, public accommodations may not require 
that an individual with a disability be accompanied by an attendant. As 
provided by Sec. 36.306, however, a public accommodation is not required 
to provide services of a personal nature including assistance in 
toileting, eating, or dressing.
    Paragraph (c) of Sec. 36.301 provides that public accommodations may 
not place a surcharge on a particular individual with a disability or 
any group of individuals with disabilities to cover the costs of 
measures, such as the provision of auxiliary aids and services, barrier 
removal, alternatives to barrier removal, and reasonable modifications 
in policies, practices, and procedures, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by the Act or this part.
    A number of commenters inquired as to whether deposits required for 
the use of auxiliary aids, such as assistive listening devices, are 
prohibited surcharges. It is the Department's view that reasonable, 
completely refundable, deposits are not to be considered surcharges 
prohibited by this section. Requiring deposits is an important means of 
ensuring the availability of equipment necessary to ensure compliance 
with the ADA.
    Other commenters sought clarification as to whether Sec. 36.301(c) 
prohibits professionals from charging for the additional time that it 
may take in certain cases to provide services to an individual with 
disabilities. The Department does not intend Sec. 36.301(c) to prohibit 
professionals who bill on the basis of time from charging individuals 
with disabilities on that basis. However, fees may not be charged for 
the provision of auxiliary aids and services, barrier removal, 
alternatives to barrier removal, reasonable modifications in policies, 
practices, and procedures, or any other measures necessary to ensure 
compliance with the ADA.
    Other commenters inquired as to whether day care centers may charge 
for extra services provided to individuals with disabilities. As stated 
above, Sec. 36.302(c) is intended only to prohibit charges for measures 
necessary to achieve compliance with the ADA.
    Another commenter asserted that charges may be assessed for home 
delivery provided as an alternative to barrier removal under 
Sec. 36.305, when home delivery is provided to all customers for a fee. 
Charges for home delivery are permissible if home delivery is not 
considered an alternative to barrier removal. If the public 
accommodation offers an alternative, such as curb, carry-out, or 
sidewalk service for which no surcharge is assessed, then it may charge 
for home delivery in accordance with its standard pricing for home 
delivery.
    In addition, Sec. 36.301 prohibits the imposition of criteria that 
``tend to'' screen out an individual with a disability. This concept, 
which is derived from current regulations under section 504 (see, e.g., 
45 CFR 84.13), makes it discriminatory to impose policies or criteria 
that, while not creating a direct bar to individuals with disabilities, 
indirectly prevent or limit their ability to participate. For example, 
requiring presentation of a driver's license as the sole means of 
identification for purposes of paying by check would violate this 
section in situations where, for example, individuals with severe vision 
impairments or developmental disabilities or epilepsy are ineligible to 
receive a driver's license and the use of an alternative means of 
identification, such as another photo I.D. or credit card, is feasible.
    A public accommodation may, however, impose neutral rules and 
criteria that screen out, or tend to screen out, individuals with 
disabilities, if the criteria are necessary for the safe operation of 
the public accommodation. Examples of safety qualifications that would 
be justifiable in appropriate circumstances would include height 
requirements for certain amusement park rides or a requirement that all 
participants in a recreational rafting expedition be able to meet a 
necessary level of swimming proficiency. Safety requirements must be 
based on actual risks and not on speculation, stereotypes, or 
generalizations about individuals with disabilities.

   Section 36.302  Modifications in Policies, Practices, or Procedures

    Section 36.302 of the rule prohibits the failure to make reasonable 
modifications in policies, practices, and procedures when such

[[Page 632]]

modifications may be necessary to afford any goods, services, 
facilities, privileges, advantages, or accommodations, unless the entity 
can demonstrate that making such modifications would fundamentally alter 
the nature of such goods, services, facilities, privileges, advantages, 
or accommodations. This prohibition is based on section 302(b)(2)(A)(ii) 
of the ADA.
    For example, a parking facility would be required to modify a rule 
barring all vans or all vans with raised roofs, if an individual who 
uses a wheelchair-accessible van wishes to park in that facility, and if 
overhead structures are high enough to accommodate the height of the 
van. A department store may need to modify a policy of only permitting 
one person at a time in a dressing room, if an individual with mental 
retardation needs and requests assistance in dressing from a companion. 
Public accommodations may need to revise operational policies to ensure 
that services are available to individuals with disabilities. For 
instance, a hotel may need to adopt a policy of keeping an accessible 
room unoccupied until an individual with a disability arrives at the 
hotel, assuming the individual has properly reserved the room.
    One example of application of this principle is specifically 
included in a new Sec. 36.302(d) on check-out aisles. That paragraph 
provides that a store with check-out aisles must ensure that an adequate 
number of accessible check-out aisles is kept open during store hours, 
or must otherwise modify its policies and practices, in order to ensure 
that an equivalent level of convenient service is provided to 
individuals with disabilities as is provided to others. For example, if 
only one check-out aisle is accessible, and it is generally used for 
express service, one way of providing equivalent service is to allow 
persons with mobility impairments to make all of their purchases at that 
aisle. This principle also applies with respect to other accessible 
elements and services. For example, a particular bank may be in 
compliance with the accessibility guidelines for new construction 
incorporated in appendix A with respect to automated teller machines 
(ATM) at a new branch office by providing one accessible walk-up machine 
at that location, even though an adjacent walk-up ATM is not accessible 
and the drive-up ATM is not accessible. However, the bank would be in 
violation of this section if the accessible ATM was located in a lobby 
that was locked during evening hours while the drive-up ATM was 
available to customers without disabilities during those same hours. The 
bank would need to ensure that the accessible ATM was available to 
customers during the hours that any of the other ATM's was available.
    A number of commenters inquired as to the relationship between this 
section and Sec. 36.307, ``Accessible or special goods.'' Under 
Sec. 36.307, a public accommodation is not required to alter its 
inventory to include accessible or special goods that are designed for, 
or facilitate use by, individuals with disabilities. The rule enunciated 
in Sec. 36.307 is consistent with the ``fundamental alteration'' defense 
to the reasonable modifications requirement of Sec. 36.302. Therefore, 
Sec. 36.302 would not require the inventory of goods provided by a 
public accommodation to be altered to include goods with accessibility 
features. For example, Sec. 36.302 would not require a bookstore to 
stock Brailled books or order Brailled books, if it does not do so in 
the normal course of its business.
    The rule does not require modifications to the legitimate areas of 
specialization of service providers. Section 36.302(b) provides that a 
public accommodation may refer an individual with a disability to 
another public accommodation, if that individual is seeking, or 
requires, treatment or services outside of the referring public 
accommodation's area of specialization, and if, in the normal course of 
its operations, the referring public accommodation would make a similar 
referral for an individual without a disability who seeks or requires 
the same treatment or services.
    For example, it would not be discriminatory for a physician who 
specializes only in burn treatment to refer an individual who is deaf to 
another physician for treatment of an injury other than a burn injury. 
To require a physician to accept patients outside of his or her 
specialty would fundamentally alter the nature of the medical practice 
and, therefore, not be required by this section.
    A clinic specializing exclusively in drug rehabilitation could 
similarly refuse to treat a person who is not a drug addict, but could 
not refuse to treat a person who is a drug addict simply because the 
patient tests positive for HIV. Conversely, a clinic that specializes in 
the treatment of individuals with HIV could refuse to treat an 
individual that does not have HIV, but could not refuse to treat a 
person for HIV infection simply because that person is also a drug 
addict.
    Some commenters requested clarification as to how this provision 
would apply to situations where manifestations of the disability in 
question, itself, would raise complications requiring the expertise of a 
different practitioner. It is not the Department's intention in 
Sec. 36.302(b) to prohibit a physician from referring an individual with 
a disability to another physician, if the disability itself creates 
specialized complications for the patient's health that the physician 
lacks the experience or knowledge to address (see Education and Labor 
report at 106).
    Section 36.302(c)(1) requires that a public accommodation modify its 
policies, practices, or procedures to permit the use of a

[[Page 633]]

service animal by an individual with a disability in any area open to 
the general public. The term ``service animal'' is defined in 
Sec. 36.104 to include guide dogs, signal dogs, or any other animal 
individually trained to provide assistance to an individual with a 
disability.
    A number of commenters pointed to the difficulty of making the 
distinction required by the proposed rule between areas open to the 
general public and those that are not. The ambiguity and uncertainty 
surrounding these provisions has led the Department to adopt a single 
standard for all public accommodations.
    Section 36.302(c)(1) of the final rule now provides that 
``[g]enerally, a public accommodation shall modify policies, practices, 
and procedures to permit the use of a service animal by an individual 
with a disability.'' This formulation reflects the general intent of 
Congress that public accommodations take the necessary steps to 
accommodate service animals and to ensure that individuals with 
disabilities are not separated from their service animals. It is 
intended that the broadest feasible access be provided to service 
animals in all places of public accommodation, including movie theaters, 
restaurants, hotels, retail stores, hospitals, and nursing homes (see 
Education and Labor report at 106; Judiciary report at 59). The section 
also acknowledges, however, that, in rare circumstances, accommodation 
of service animals may not be required because a fundamental alteration 
would result in the nature of the goods, services, facilities, 
privileges, or accommodations offered or provided, or the safe operation 
of the public accommodation would be jeopardized.
    As specified in Sec. 36.302(c)(2), the rule does not require a 
public accommodation to supervise or care for any service animal. If a 
service animal must be separated from an individual with a disability in 
order to avoid a fundamental alteration or a threat to safety, it is the 
responsibility of the individual with the disability to arrange for the 
care and supervision of the animal during the period of separation.
    A museum would not be required by Sec. 36.302 to modify a policy 
barring the touching of delicate works of art in order to enhance the 
participation of individuals who are blind, if the touching threatened 
the integrity of the work. Damage to a museum piece would clearly be a 
fundamental alteration that is not required by this section.

              Section 36.303  Auxiliary Aids and Services.

    Section 36.303 of the final rule requires a public accommodation to 
take such steps as may be necessary to ensure that no individual with a 
disability is excluded, denied services, segregated or otherwise treated 
differently than other individuals because of the absence of auxiliary 
aids and services, unless the public accommodation can demonstrate that 
taking such steps would fundamentally alter the nature of the goods, 
services, facilities, advantages, or accommodations being offered or 
would result in an undue burden. This requirement is based on section 
302(b)(2)(A)(iii) of the ADA.
    Implicit in this duty to provide auxiliary aids and services is the 
underlying obligation of a public accommodation to communicate 
effectively with its customers, clients, patients, or participants who 
have disabilities affecting hearing, vision, or speech. To give emphasis 
to this underlying obligation, Sec. 36.303(c) of the rule incorporates 
language derived from section 504 regulations for federally conducted 
programs (see e.g., 28 CFR 39.160(a)) that requires that appropriate 
auxiliary aids and services be furnished to ensure that communication 
with persons with disabilities is as effective as communication with 
others.
    Auxiliary aids and services include a wide range of services and 
devices for ensuring effective communication. Use of the most advanced 
technology is not required so long as effective communication is 
ensured. The Department's proposed Sec. 36.303(b) provided a list of 
examples of auxiliary aids and services that was taken from the 
definition of auxiliary aids and services in section 3(1) of the ADA and 
was supplemented by examples from regulations implementing section 504 
in federally conducted programs (see e.g., 28 CFR 39.103). A substantial 
number of commenters suggested that additional examples be added to this 
list. The Department has added several items to this list but wishes to 
clarify that the list is not an all-inclusive or exhaustive catalogue of 
possible or available auxiliary aids or services. It is not possible to 
provide an exhaustive list, and such an attempt would omit new devices 
that will become available with emerging technology.
    The Department has added videotext displays, computer-aided 
transcription services, and open and closed captioning to the list of 
examples. Videotext displays have become an important means of accessing 
auditory communications through a public address system. Transcription 
services are used to relay aurally delivered material almost 
simultaneously in written form to persons who are deaf or hard of 
hearing. This technology is often used at conferences, conventions, and 
hearings. While the proposed rule expressly included television decoder 
equipment as an auxiliary aid or service, it did not mention captioning 
itself. The final rule rectifies this omission by mentioning both closed 
and open captioning.
    In this section, the Department has changed the proposed rule's 
phrase, ``orally delivered materials,'' to the phrase, ``aurally 
delivered materials.'' This new phrase tracks the language in the 
definition of ``auxiliary aids and services'' in section 3 of the ADA

[[Page 634]]

and is meant to include nonverbal sounds and alarms and computer-
generated speech.
    Several persons and organizations requested that the Department 
replace the term ``telecommunications devices for deaf persons'' or 
``TDD's'' with the term ``text telephone.'' The Department has declined 
to do so. The Department is aware that the Architectural and 
Transportation Barriers Compliance Board has used the phrase ``text 
telephone'' in lieu of the statutory term ``TDD'' in its final 
accessibility guidelines. Title IV of the ADA, however, uses the term 
``Telecommunications Device for the Deaf,'' and the Department believes 
it would be inappropriate to abandon this statutory term at this time.
    Paragraph (b)(2) lists examples of aids and services for making 
visually delivered materials accessible to persons with visual 
impairments. Many commenters proposed additional examples such as 
signage or mapping, audio description services, secondary auditory 
programs (SAP), telebraillers, and reading machines. While the 
Department declines to add these items to the list in the regulation, 
they may be considered appropriate auxiliary aids and services.
    Paragraph (b)(3) refers to the acquisition or modification of 
equipment or devices. For example, tape players used for an audio-guided 
tour of a museum exhibit may require the addition of Brailled adhesive 
labels to the buttons on a reasonable number of the tape players to 
facilitate their use by individuals who are blind. Similarly, permanent 
or portable assistive listening systems for persons with hearing 
impairments may be required at a hotel conference center.
    Several commenters suggested the addition of current technological 
innovations in microelectronics and computerized control systems (e.g., 
voice recognition systems, automatic dialing telephones, and infrared 
elevator and light control systems) to the list of auxiliary aids and 
services. The Department interprets auxiliary aids and services as those 
aids and services designed to provide effective communications, i. e., 
making aurally and visually delivered information available to persons 
with hearing, speech, and vision impairments. Methods of making 
services, programs, or activities accessible to, or usable by, 
individuals with mobility or manual dexterity impairments are addressed 
by other sections of this part, including the requirements for 
modifications in policies, practices, or procedures (Sec. 36.302), the 
elimination of existing architectural barriers (Sec. 36.304), and the 
provision of alternatives to barriers removal (Sec. 36.305).
    Paragraph (b)(4) refers to other similar services and actions. 
Several commenters asked for clarification that ``similar services and 
actions'' include retrieving items from shelves, assistance in reaching 
a marginally accessible seat, pushing a barrier aside in order to 
provide an accessible route, or assistance in removing a sweater or 
coat. While retrieving an item from a shelf might be an ``auxiliary aid 
or service'' for a blind person who could not locate the item without 
assistance, it might be a readily achievable alternative to barrier 
removal for a person using a wheelchair who could not reach the shelf, 
or a reasonable modification to a self-service policy for an individual 
who lacked the ability to grasp the item. (Of course, a store would not 
be required to provide a personal shopper.) As explained above, 
auxiliary aids and services are those aids and services required to 
provide effective communications. Other forms of assistance are more 
appropriately addressed by other provisions of the final rule.
    The auxiliary aid requirement is a flexible one. A public 
accommodation can choose among various alternatives as long as the 
result is effective communication. For example, a restaurant would not 
be required to provide menus in Braille for patrons who are blind, if 
the waiters in the restaurant are made available to read the menu. 
Similarly, a clothing boutique would not be required to have Brailled 
price tags if sales personnel provide price information orally upon 
request; and a bookstore would not be required to make available a sign 
language interpreter, because effective communication can be conducted 
by notepad.
    A critical determination is what constitutes an effective auxiliary 
aid or service. The Department's proposed rule recommended that, in 
determining what auxiliary aid to use, the public accommodation consult 
with an individual before providing him or her with a particular 
auxiliary aid or service. This suggestion sparked a significant volume 
of public comment. Many persons with disabilities, particularly persons 
who are deaf or hard of hearing, recommended that the rule should 
require that public accommodations give ``primary consideration'' to the 
``expressed choice'' of an individual with a disability. These 
commenters asserted that the proposed rule was inconsistent with 
congressional intent of the ADA, with the Department's proposed rule 
implementing title II of the ADA, and with longstanding interpretations 
of section 504 of the Rehabilitation Act.
    Based upon a careful review of the ADA legislative history, the 
Department believes that Congress did not intend under title III to 
impose upon a public accommodation the requirement that it give primary 
consideration to the request of the individual with a disability. To the 
contrary, the legislative history demonstrates congressional intent to 
strongly encourage consulting with persons with disabilities. In its 
analysis of the ADA's auxiliary aids requirement for public 
accommodations, the House Education and Labor Committee stated that it 
``expects'' that

[[Page 635]]

``public accommodation(s) will consult with the individual with a 
disability before providing a particular auxiliary aid or service'' 
(Education and Labor report at 107). Some commenters also cited a 
different committee statement that used mandatory language as evidence 
of legislative intent to require primary consideration. However, this 
statement was made in the context of reasonable accommodations required 
by title I with respect to employment (Education and Labor report at 
67). Thus, the Department finds that strongly encouraging consultation 
with persons with disabilities, in lieu of mandating primary 
consideration of their expressed choice, is consistent with 
congressional intent.
    The Department wishes to emphasize that public accommodations must 
take steps necessary to ensure that an individual with a disability will 
not be excluded, denied services, segregated or otherwise treated 
differently from other individuals because of the use of inappropriate 
or ineffective auxiliary aids. In those situations requiring an 
interpreter, the public accommodations must secure the services of a 
qualified interpreter, unless an undue burden would result.
    In the analysis of Sec. 36.303(c) in the proposed rule, the 
Department gave as an example the situation where a note pad and written 
materials were insufficient to permit effective communication in a 
doctor's office when the matter to be decided was whether major surgery 
was necessary. Many commenters objected to this statement, asserting 
that it gave the impression that only decisions about major surgery 
would merit the provision of a sign language interpreter. The statement 
would, as the commenters also claimed, convey the impression to other 
public accommodations that written communications would meet the 
regulatory requirements in all but the most extreme situations. The 
Department, when using the example of major surgery, did not intend to 
limit the provision of interpreter services to the most extreme 
situations.
    Other situations may also require the use of interpreters to ensure 
effective communication depending on the facts of the particular case. 
It is not difficult to imagine a wide range of communications involving 
areas such as health, legal matters, and finances that would be 
sufficiently lengthy or complex to require an interpreter for effective 
communication. In some situations, an effective alternative to use of a 
notepad or an interpreter may be the use of a computer terminal upon 
which the representative of the public accommodation and the customer or 
client can exchange typewritten messages.
    Section 36.303(d) specifically addresses requirements for TDD's. 
Partly because of the availability of telecommunications relay services 
to be established under title IV of the ADA, Sec. 36.303(d)(2) provides 
that a public accommodation is not required to use a telecommunication 
device for the deaf (TDD) in receiving or making telephone calls 
incident to its operations. Several commenters were concerned that relay 
services would not be sufficient to provide effective access in a number 
of situations. Commenters argued that relay systems (1) do not provide 
effective access to the automated systems that require the caller to 
respond by pushing a button on a touch tone phone, (2) cannot operate 
fast enough to convey messages on answering machines, or to permit a TDD 
user to leave a recorded message, and (3) are not appropriate for 
calling crisis lines relating to such matters as rape, domestic 
violence, child abuse, and drugs where confidentiality is a concern. The 
Department believes that it is more appropriate for the Federal 
Communications Commission to address these issues in its rulemaking 
under title IV.
    A public accommodation is, however, required to make a TDD available 
to an individual with impaired hearing or speech, if it customarily 
offers telephone service to its customers, clients, patients, or 
participants on more than an incidental convenience basis. Where entry 
to a place of public accommodation requires use of a security entrance 
telephone, a TDD or other effective means of communication must be 
provided for use by an individual with impaired hearing or speech.
    In other words, individual retail stores, doctors' offices, 
restaurants, or similar establishments are not required by this section 
to have TDD's, because TDD users will be able to make inquiries, 
appointments, or reservations with such establishments through the relay 
system established under title IV of the ADA. The public accommodation 
will likewise be able to contact TDD users through the relay system. On 
the other hand, hotels, hospitals, and other similar establishments that 
offer nondisabled individuals the opportunity to make outgoing telephone 
calls on more than an incidental convenience basis must provide a TDD on 
request.
    Section 36.303(e) requires places of lodging that provide 
televisions in five or more guest rooms and hospitals to provide, upon 
request, a means for decoding closed captions for use by an individual 
with impaired hearing. Hotels should also provide a TDD or similar 
device at the front desk in order to take calls from guests who use 
TDD's in their rooms. In this way guests with hearing impairments can 
avail themselves of such hotel services as making inquiries of the front 
desk and ordering room service. The term ``hospital'' is used in its 
general sense and should be interpreted broadly.
    Movie theaters are not required by Sec. 36.303 to present open-
captioned films. However, other public accommodations that impart verbal 
information through soundtracks on

[[Page 636]]

films, video tapes, or slide shows are required to make such information 
accessible to persons with hearing impairments. Captioning is one means 
to make the information accessible to individuals with disabilities.
    The rule specifies that auxiliary aids and services include the 
acquisition or modification of equipment or devices. For example, tape 
players used for an audio-guided tour of a museum exhibit may require 
the addition of Brailled adhesive labels to the buttons on a reasonable 
number of the tape players to facilitate their use by individuals who 
are blind. Similarly, a hotel conference center may need to provide 
permanent or portable assistive listening systems for persons with 
hearing impairments.
    As provided in Sec. 36.303(f), a public accommodation is not 
required to provide any particular aid or service that would result 
either in a fundamental alteration in the nature of the goods, services, 
facilities, privileges, advantages, or accommodations offered or in an 
undue burden. Both of these statutory limitations are derived from 
existing regulations and caselaw under section 504 and are to be applied 
on a case-by-case basis (see, e.g., 28 CFR 39.160(d) and Southeastern 
Community College v. Davis, 442 U.S. 397 (1979)). Congress intended that 
``undue burden'' under Sec. 36.303 and ``undue hardship,'' which is used 
in the employment provisions of title I of the ADA, should be determined 
on a case-by-case basis under the same standards and in light of the 
same factors (Judiciary report at 59). The rule, therefore, in 
accordance with the definition of undue hardship in section 101(10) of 
the ADA, defines undue burden as ``significant difficulty or expense'' 
(see Secs. 36.104 and 36.303(a)) and requires that undue burden be 
determined in light of the factors listed in the definition in 36.104.
    Consistent with regulations implementing section 504 in federally 
conducted programs (see, e.g., 28 CFR 39.160(d)), Sec. 36.303(f) 
provides that the fact that the provision of a particular auxiliary aid 
or service would result in an undue burden does not relieve a public 
accommodation from the duty to furnish an alternative auxiliary aid or 
service, if available, that would not result in such a burden.
    Section 36.303(g) of the proposed rule has been deleted from this 
section and included in a new Sec. 36.306. That new section continues to 
make clear that the auxiliary aids requirement does not mandate the 
provision of individually prescribed devices, such as prescription 
eyeglasses or hearing aids.
    The costs of compliance with the requirements of this section may 
not be financed by surcharges limited to particular individuals with 
disabilities or any group of individuals with disabilities 
(Sec. 36.301(c)).

                   Section 36.304  Removal of Barriers

    Section 36.304 requires the removal of architectural barriers and 
communication barriers that are structural in nature in existing 
facilities, where such removal is readily achievable, i.e., easily 
accomplishable and able to be carried out without much difficulty or 
expense. This requirement is based on section 302(b)(2)(A)(iv) of the 
ADA.
    A number of commenters interpreted the phrase ``communication 
barriers that are structural in nature'' broadly to encompass the 
provision of communications devices such as TDD's, telephone handset 
amplifiers, assistive listening devices, and digital check-out displays. 
The statute, however, as read by the Department, limits the application 
of the phrase ``communications barriers that are structural in nature'' 
to those barriers that are an integral part of the physical structure of 
a facility. In addition to the communications barriers posed by 
permanent signage and alarm systems noted by Congress (see Education and 
Labor report at 110), the Department would also include among the 
communications barriers covered by Sec. 36.304 the failure to provide 
adequate sound buffers, and the presence of physical partitions that 
hamper the passage of sound waves between employees and customers. Given 
that Sec. 36.304's proper focus is on the removal of physical barriers, 
the Department believes that the obligation to provide communications 
equipment and devices such as TDD's, telephone handset amplifiers, 
assistive listening devices, and digital check-out displays is more 
appropriately determined by the requirements for auxiliary aids and 
services under Sec. 36.303 (see Education and Labor report at 107-108). 
The obligation to remove communications barriers that are structural in 
nature under Sec. 36.304, of course, is independent of any obligation to 
provide auxiliary aids and services under Sec. 36.303.
    The statutory provision also requires the readily achievable removal 
of certain barriers in existing vehicles and rail passenger cars. This 
transportation requirement is not included in Sec. 36.304, but rather in 
Sec. 36.310(b) of the rule.
    In striking a balance between guaranteeing access to individuals 
with disabilities and recognizing the legitimate cost concerns of 
businesses and other private entities, the ADA establishes different 
standards for existing facilities and new construction. In existing 
facilities, which are the subject of Sec. 36.304, where retrofitting may 
prove costly, a less rigorous degree of accessibility is required than 
in the case of new construction and alterations (see Secs. 36.401-
36.406) where accessibility can be more conveniently and economically 
incorporated in the initial stages of design and construction.
    For example, a bank with existing automatic teller machines (ATM's) 
would have to

[[Page 637]]

remove barriers to the use of the ATM's, if it is readily achievable to 
do so. Whether or not it is necessary to take actions such as ramping a 
few steps or raising or lowering an ATM would be determined by whether 
the actions can be accomplished easily and without much difficulty or 
expense.
    On the other hand, a newly constructed bank with ATM's would be 
required by Sec. 36.401 to have an ATM that is ``readily accessible to 
and usable by'' persons with disabilities in accordance with 
accessibility guidelines incorporated under Sec. 36.406.
    The requirement to remove architectural barriers includes the 
removal of physical barriers of any kind. For example, Sec. 36.304 
requires the removal, when readily achievable, of barriers caused by the 
location of temporary or movable structures, such as furniture, 
equipment, and display racks. In order to provide access to individuals 
who use wheelchairs, for example, restaurants may need to rearrange 
tables and chairs, and department stores may need to reconfigure display 
racks and shelves. As stated in Sec. 36.304(f), such actions are not 
readily achievable to the extent that they would result in a significant 
loss of selling or serving space. If the widening of all aisles in 
selling or serving areas is not readily achievable, then selected 
widening should be undertaken to maximize the amount of merchandise or 
the number of tables accessible to individuals who use wheelchairs. 
Access to goods and services provided in any remaining inaccessible 
areas must be made available through alternative methods to barrier 
removal, as required by Sec. 36.305.
    Because the purpose of title III of the ADA is to ensure that public 
accommodations are accessible to their customers, clients, or patrons 
(as opposed to their employees, who are the focus of title I), the 
obligation to remove barriers under Sec. 36.304 does not extend to areas 
of a facility that are used exclusively as employee work areas.
    Section 36.304(b) provides a wide-ranging list of the types of 
modest measures that may be taken to remove barriers and that are likely 
to be readily achievable. The list includes examples of measures, such 
as adding raised letter markings on elevator control buttons and 
installing flashing alarm lights, that would be used to remove 
communications barriers that are structural in nature. It is not an 
exhaustive list, but merely an illustrative one. Moreover, the inclusion 
of a measure on this list does not mean that it is readily achievable in 
all cases. Whether or not any of these measures is readily achievable is 
to be determined on a case-by-case basis in light of the particular 
circumstances presented and the factors listed in the definition of 
readily achievable (Sec. 36.104).
    A public accommodation generally would not be required to remove a 
barrier to physical access posed by a flight of steps, if removal would 
require extensive ramping or an elevator. Ramping a single step, 
however, will likely be readily achievable, and ramping several steps 
will in many circumstances also be readily achievable. The readily 
achievable standard does not require barrier removal that requires 
extensive restructuring or burdensome expense. Thus, where it is not 
readily achievable to do, the ADA would not require a restaurant to 
provide access to a restroom reachable only by a flight of stairs.
    Like Sec. 36.405, this section permits deference to the national 
interest in preserving significant historic structures. Barrier removal 
would not be considered ``readily achievable'' if it would threaten or 
destroy the historic significance of a building or facility that is 
eligible for listing in the National Register of Historic Places under 
the National Historic Preservation Act (16 U.S.C. 470, et seq.), or is 
designated as historic under State or local law.
    The readily achievable defense requires a less demanding level of 
exertion by a public accommodation than does the undue burden defense to 
the auxiliary aids requirements of Sec. 36.303. In that sense, it can be 
characterized as a ``lower'' standard than the undue burden standard. 
The readily achievable defense is also less demanding than the undue 
hardship defense in section 102(b)(5) of the ADA, which limits the 
obligation to make reasonable accommodation in employment. Barrier 
removal measures that are not easily accomplishable and are not able to 
be carried out without much difficulty or expense are not required under 
the readily achievable standard, even if they do not impose an undue 
burden or an undue hardship.
    Section 36.304(f)(1) of the proposed rule, which stated that 
``barrier removal is not readily achievable if it would result in 
significant loss of profit or significant loss of efficiency of 
operation,'' has been deleted from the final rule. Many commenters 
objected to this provision because it impermissibly introduced the 
notion of profit into a statutory standard that did not include it. 
Concern was expressed that, in order for an action not to be considered 
readily achievable, a public accommodation would inappropriately have to 
show, for example, not only that the action could not be done without 
``much difficulty or expense'', but that a significant loss of profit 
would result as well. In addition, some commenters asserted use of the 
word ``significant,'' which is used in the definition of undue hardship 
under title I (the standard for interpreting the meaning of undue burden 
as a defense to title III's auxiliary aids requirements) (see 
Secs. 36.104, 36.303(f)), blurs the fact that the readily achievable 
standard requires a lower

[[Page 638]]

level of effort on the part of a public accommodation than does the 
undue burden standard.
    The obligation to engage in readily achievable barrier removal is a 
continuing one. Over time, barrier removal that initially was not 
readily achievable may later be required because of changed 
circumstances. Many commenters expressed support for the Department's 
position that the obligation to comply with Sec. 36.304 is continuing in 
nature. Some urged that the rule require public accommodations to assess 
their compliance on at least an annual basis in light of changes in 
resources and other factors that would be relevant to determining what 
barrier removal measures would be readily achievable.
    Although the obligation to engage in readily achievable barrier 
removal is clearly a continuing duty, the Department has declined to 
establish any independent requirement for an annual assessment or self-
evaluation. It is best left to the public accommodations subject to 
Sec. 36.304 to establish policies to assess compliance that are 
appropriate to the particular circumstances faced by the wide range of 
public accommodations covered by the ADA. However, even in the absence 
of an explicit regulatory requirement for periodic self-evaluations, the 
Department still urges public accommodations to establish procedures for 
an ongoing assessment of their compliance with the ADA's barrier removal 
requirements. The Department recommends that this process include 
appropriate consultation with individuals with disabilities or 
organizations representing them. A serious effort at self-assessment and 
consultation can diminish the threat of litigation and save resources by 
identifying the most efficient means of providing required access.
    The Department has been asked for guidance on the best means for 
public accommodations to comply voluntarily with this section. Such 
information is more appropriately part of the Department's technical 
assistance effort and will be forthcoming over the next several months. 
The Department recommends, however, the development of an implementation 
plan designed to achieve compliance with the ADA's barrier removal 
requirements before they become effective on January 26, 1992. Such a 
plan, if appropriately designed and diligently executed, could serve as 
evidence of a good faith effort to comply with the requirements of 
Sec. 36.104. In developing an implementation plan for readily achievable 
barrier removal, a public accommodation should consult with local 
organizations representing persons with disabilities and solicit their 
suggestions for cost-effective means of making individual places of 
public accommodation accessible. Such organizations may also be helpful 
in allocating scarce resources and establishing priorities. Local 
associations of businesses may want to encourage this process and serve 
as the forum for discussions on the local level between disability 
rights organizations and local businesses.
    Section 36.304(c) recommends priorities for public accommodations in 
removing barriers in existing facilities. Because the resources 
available for barrier removal may not be adequate to remove all existing 
barriers at any given time, Sec. 36.304(c) suggests priorities for 
determining which types of barriers should be mitigated or eliminated 
first. The purpose of these priorities is to facilitate long-term 
business planning and to maximize, in light of limited resources, the 
degree of effective access that will result from any given level of 
expenditure.
    Although many commenters expressed support for the concept of 
establishing priorities, a significant number objected to their 
mandatory nature in the proposed rule. The Department shares the concern 
of these commenters that mandatory priorities would increase the 
likelihood of litigation and inappropriately reduce the discretion of 
public accommodations to determine the most effective mix of barrier 
removal measures to undertake in particular circumstances. Therefore, in 
the final rule the priorities are no longer mandatory.
    In response to comments that the priorities failed to address 
communications issues, the Department wishes to emphasize that the 
priorities encompass the removal of communications barriers that are 
structural in nature. It would be counter to the ADA's carefully wrought 
statutory scheme to include in this provision the wide range of 
communication devices that are required by the ADA's provisions on 
auxiliary aids and services. The final rule explicitly includes Brailled 
and raised letter signage and visual alarms among the examples of steps 
to remove barriers provided in Sec. 36.304(c)(2).
    Section 36.304(c)(1) places the highest priority on measures that 
will enable individuals with disabilities to physically enter a place of 
public accommodation. This priority on ``getting through the door'' 
recognizes that providing actual physical access to a facility from 
public sidewalks, public transportation, or parking is generally 
preferable to any alternative arrangements in terms of both business 
efficiency and the dignity of individuals with disabilities.
    The next priority, which is established in Sec. 36.304(c)(2), is for 
measures that provide access to those areas of a place of public 
accommodation where goods and services are made available to the public. 
For example, in a hardware store, to the extent that it is readily 
achievable to do so, individuals with disabilities should be given 
access not only to assistance at the front desk, but also access, like 
that available to other customers, to the retail display areas of the 
store.

[[Page 639]]

    The Department agrees with those commenters who argued that access 
to the areas where goods and services are provided is generally more 
important than the provision of restrooms. Therefore, the final rule 
reverses priorities two and three of the proposed rule in order to give 
lower priority to accessible restrooms. Consequently, the third priority 
in the final rule (Sec. 36.304(c)(3)) is for measures to provide access 
to restroom facilities and the last priority is placed on any remaining 
measures required to remove barriers.
    Section 36.304(d) requires that measures taken to remove barriers 
under Sec. 36.304 be subject to subpart D's requirements for alterations 
(except for the path of travel requirements in Sec. 36.403). It only 
permits deviations from the subpart D requirements when compliance with 
those requirements is not readily achievable. In such cases, 
Sec. 36.304(d) permits measures to be taken that do not fully comply 
with the subpart D requirements, so long as the measures do not pose a 
significant risk to the health or safety of individuals with 
disabilities or others.
    This approach represents a change from the proposed rule which 
stated that ``readily achievable'' measures taken solely to remove 
barriers under Sec. 36.304 are exempt from the alterations requirements 
of subpart D. The intent of the proposed rule was to maximize the 
flexibility of public accommodations in undertaking barrier removal by 
allowing deviations from the technical standards of subpart D. It was 
thought that allowing slight deviations would provide access and release 
additional resources for expanding the amount of barrier removal that 
could be obtained under the readily achievable standard.
    Many commenters, however, representing both businesses and 
individuals with disabilities, questioned this approach because of the 
likelihood that unsafe or ineffective measures would be taken in the 
absence of the subpart D standards for alterations as a reference point. 
Some advocated a rule requiring strict compliance with the subpart D 
standard.
    The Department in the final rule has adopted the view of many 
commenters that (1) public accommodations should in the first instance 
be required to comply with the subpart D standards for alterations where 
it is readily achievable to do so and (2) safe, readily achievable 
measures must be taken when compliance with the subpart D standards is 
not readily achievable. Reference to the subpart D standards in this 
manner will promote certainty and good design at the same time that 
permitting slight deviations will expand the amount of barrier removal 
that may be achieved under Sec. 36.304.
    Because of the inconvenience to individuals with disabilities and 
the safety problems involved in the use of portable ramps, 
Sec. 36.304(e) permits the use of a portable ramp to comply with 
Sec. 36.304(a) only when installation of a permanent ramp is not readily 
achievable. In order to promote safety, Sec. 36.304(e) requires that due 
consideration be given to the incorporation of features such as nonslip 
surfaces, railings, anchoring, and strength of materials in any portable 
ramp that is used.
    Temporary facilities brought in for use at the site of a natural 
disaster are subject to the barrier removal requirements of Sec. 36.304.
    A number of commenters requested clarification regarding how to 
determine when a public accommodation has discharged its obligation to 
remove barriers in existing facilities. For example, is a hotel required 
by Sec. 36.304 to remove barriers in all of its guest rooms? Or is some 
lesser percentage adequate? A new paragraph (g) has been added to 
Sec. 36.304 to address this issue. The Department believes that the 
degree of barrier removal required under Sec. 36.304 may be less, but 
certainly would not be required to exceed, the standards for alterations 
under the ADA Accessibility Guidelines incorporated by subpart D of this 
part (ADAAG). The ADA's requirements for readily achievable barrier 
removal in existing facilities are intended to be substantially less 
rigorous than those for new construction and alterations. It, therefore, 
would be obviously inappropriate to require actions under Sec. 36.304 
that would exceed the ADAAG requirements. Hotels, then, in order to 
satisfy the requirements of Sec. 36.304, would not be required to remove 
barriers in a higher percentage of rooms than required by ADAAG. If 
relevant standards for alterations are not provided in ADAAG, then 
reference should be made to the standards for new construction.

             Section 36.305  Alternatives to Barrier Removal

    Section 36.305 specifies that where a public accommodation can 
demonstrate that removal of a barrier is not readily achievable, the 
public accommodation must make its goods, services, facilities, 
privileges, advantages, or accommodations available through alternative 
methods, if such methods are readily achievable. This requirement is 
based on section 302(b)(2)(A)(v) of the ADA.
    For example, if it is not readily achievable for a retail store to 
raise, lower, or remove shelves or to rearrange display racks to provide 
accessible aisles, the store must, if readily achievable, provide a 
clerk or take other alternative measures to retrieve inaccessible 
merchandise. Similarly, if it is not readily achievable to ramp a long 
flight of stairs leading to the front door of a restaurant or a 
pharmacy, the restaurant or the pharmacy must take alternative measures, 
if readily achievable, such as providing curb service or home delivery. 
If, within a restaurant, it is not readily achievable to remove physical 
barriers to a certain section of a restaurant, the restaurant must, 
where it is readily

[[Page 640]]

achievable to do so, offer the same menu in an accessible area of the 
restaurant.
    Where alternative methods are used to provide access, a public 
accommodation may not charge an individual with a disability for the 
costs associated with the alternative method (see Sec. 36.301(c)). 
Further analysis of the issue of charging for alternative measures may 
be found in the preamble discussion of Sec. 36.301(c).
    In some circumstances, because of security considerations, some 
alternative methods may not be readily achievable. The rule does not 
require a cashier to leave his or her post to retrieve items for 
individuals with disabilities, if there are no other employees on duty.
    Section 36.305(c) of the proposed rule has been deleted and the 
requirements have been included in a new Sec. 36.306. That section makes 
clear that the alternative methods requirement does not mandate the 
provision of personal devices, such as wheelchairs, or services of a 
personal nature.
    In the final rule, Sec. 36.305(c) provides specific requirements 
regarding alternatives to barrier removal in multiscreen cinemas. In 
some situations, it may not be readily achievable to remove enough 
barriers to provide access to all of the theaters of a multiscreen 
cinema. If that is the case, Sec. 36.305(c) requires the cinema to 
establish a film rotation schedule that provides reasonable access for 
individuals who use wheelchairs to films being presented by the cinema. 
It further requires that reasonable notice be provided to the public as 
to the location and time of accessible showings. Methods for providing 
notice include appropriate use of the international accessibility symbol 
in a cinema's print advertising and the addition of accessibility 
information to a cinema's recorded telephone information line.

              Section 36.306  Personal Devices and Services

    The final rule includes a new Sec. 36.306, entitled ``Personal 
devices and services.'' Section 36.306 of the proposed rule, ``Readily 
achievable and undue burden: Factors to be considered,'' was deleted for 
the reasons described in the preamble discussion of the definition of 
the term ``readily achievable'' in Sec. 36.104. In place of 
Secs. 36.303(g) and 36.305(c) of the proposed rule, which addressed the 
issue of personal devices and services in the contexts of auxiliary aids 
and alternatives to barrier removal, Sec. 36.306 provides a general 
statement that the regulation does not require the provision of personal 
devices and services. This section states that a public accommodation is 
not required to provide its customers, clients, or participants with 
personal devices, such as wheelchairs; individually prescribed devices, 
such as prescription eyeglasses or hearing aids; or services of a 
personal nature including assistance in eating, toileting, or dressing.
    This statement serves as a limitation on all the requirements of the 
regulation. The personal devices and services limitation was intended to 
have general application in the proposed rule in all contexts where it 
was relevant. The final rule, therefore, clarifies, this point by 
including a general provision that will explicitly apply not just to 
auxiliary aids and services and alternatives to barrier removal, but 
across-the-board to include such relevant areas as modifications in 
policies, practices, and procedures (Sec. 36.302) and examinations and 
courses (Sec. 36.309), as well.
    The Department wishes to clarify that measures taken as alternatives 
to barrier removal, such as retrieving items from shelves or providing 
curb service or home delivery, are not to be considered personal 
services. Similarly, minimal actions that may be required as 
modifications in policies, practices, or procedures under Sec. 36.302, 
such as a waiter's removing the cover from a customer's straw, a 
kitchen's cutting up food into smaller pieces, or a bank's filling out a 
deposit slip, are not services of a personal nature within the meaning 
of Sec. 36.306. (Of course, such modifications may be required under 
Sec. 36.302 only if they are ``reasonable.'') Similarly, this section 
does not preclude the short-term loan of personal receivers that are 
part of an assistive listening system.
    Of course, if personal services are customarily provided to the 
customers or clients of a public accommodation, e.g., in a hospital or 
senior citizen center, then these personal services should also be 
provided to persons with disabilities using the public accommodation.

              Section 36.307  Accessible or Special Goods.

    Section 36.307 establishes that the rule does not require a public 
accommodation to alter its inventory to include accessible or special 
goods with accessibility features that are designed for, or facilitate 
use by, individuals with disabilities. As specified in Sec. 36.307(c), 
accessible or special goods include such items as Brailled versions of 
books, books on audio-cassettes, closed captioned video tapes, special 
sizes or lines of clothing, and special foods to meet particular dietary 
needs.
    The purpose of the ADA's public accommodations requirements is to 
ensure accessibility to the goods offered by a public accommodation, not 
to alter the nature or mix of goods that the public accommodation has 
typically provided. In other words, a bookstore, for example, must make 
its facilities and sales operations accessible to individuals with 
disabilities, but is not required to stock Brailled or large print 
books. Similarly, a video store must make its facilities and rental 
operations accessible, but is not required to stock closed-captioned 
video tapes.

[[Page 641]]

The Department has been made aware, however, that the most recent titles 
in video-tape rental establishments are, in fact, closed captioned.
    Although a public accommodation is not required by Sec. 36.307(a) to 
modify its inventory, it is required by Sec. 36.307(b), at the request 
of an individual with disabilities, to order accessible or special goods 
that it does not customarily maintain in stock if, in the normal course 
of its operation, it makes special orders for unstocked goods, and if 
the accessible or special goods can be obtained from a supplier with 
whom the public accommodation customarily does business. For example, a 
clothing store would be required to order specially-sized clothing at 
the request of an individual with a disability, if it customarily makes 
special orders for clothing that it does not keep in stock, and if the 
clothing can be obtained from one of the store's customary suppliers.
    One commenter asserted that the proposed rule could be interpreted 
to require a store to special order accessible or special goods of all 
types, even if only one type is specially ordered in the normal course 
of its business. The Department, however, intends for Sec. 36.307(b) to 
require special orders only of those particular types of goods for which 
a public accommodation normally makes special orders. For example, a 
book and recording store would not have to specially order Brailled 
books if, in the normal course of its business, it only specially orders 
recordings and not books.

               Section 36.308  Seating in Assembly Areas.

    Section 36.308 establishes specific requirements for removing 
barriers to physical access in assembly areas, which include such 
facilities as theaters, concert halls, auditoriums, lecture halls, and 
conference rooms. This section does not address the provision of 
auxiliary aids or the removal of communications barriers that are 
structural in nature. These communications requirements are the focus of 
other provisions of the regulation (see Secs. 36.303-36.304).
    Individuals who use wheelchairs historically have been relegated to 
inferior seating in the back of assembly areas separate from 
accompanying family members and friends. The provisions of Sec. 36.308 
are intended to promote integration and equality in seating.
    In some instances it may not be readily achievable for auditoriums 
or theaters to remove seats to allow individuals with wheelchairs to sit 
next to accompanying family members or friends. In these situations, the 
final rule retains the requirement that the public accommodation provide 
portable chairs or other means to allow the accompanying individuals to 
sit with the persons in wheelchairs. Persons in wheelchairs should have 
the same opportunity to enjoy movies, plays, and similar events with 
their families and friends, just as other patrons do. The final rule 
specifies that portable chairs or other means to permit family members 
or companions to sit with individuals who use wheelchairs must be 
provided only when it is readily achievable to do so.
    In order to facilitate seating of wheelchair users who wish to 
transfer to existing seating, paragraph (a)(1) of the final rule adds a 
requirement that, to the extent readily achievable, a reasonable number 
of seats with removable aisle-side armrests must be provided. Many 
persons in wheelchairs are able to transfer to existing seating with 
this relatively minor modification. This solution avoids the potential 
safety hazard created by the use of portable chairs and fosters 
integration. The final ADA Accessibility Guidelines incorporated by 
subpart D (ADAAG) also add a requirement regarding aisle seating that 
was not in the proposed guidelines. In situations when a person in a 
wheelchair transfers to existing seating, the public accommodation shall 
provide assistance in handling the wheelchair of the patron with the 
disability.
    Likewise, consistent vith ADAAG, the final rule adds in 
Sec. 36.308(a)(1)(ii)(B) a requirement that, to the extent readily 
achievable, wheelchair seating provide lines of sight and choice of 
admission prices comparable to those for members of the general public.
    Finally, because Congress intended that the requirements for barrier 
removal in existing facilities be substantially less rigorous than those 
required for new construction and alterations, the final rule clarifies 
in Sec. 36.308(a)(3) that in no event can the requirements for existing 
facilities be interpreted to exceed the standards for alterations under 
ADAAG. For example, Sec. 4.33 of ADAAG only requires wheelchair spaces 
to be provided in more than one location when the seating capacity of 
the assembly area exceeds 300. Therefore, paragraph (a) of Sec. 36.308 
may not be interpreted to require readily achievable dispersal of 
wheelchair seating in assembly areas with 300 or fewer seats. Similarly, 
Sec. 4.1.3(19) of ADAAG requires six accessible wheelchair locations in 
an assembly area with 301 to 500 seats. The reasonable number of 
wheelchair locations required by paragraph (a), therefore, may be less 
than six, but may not be interpreted to exceed six.

      Proposed Section 36.309  Purchase of Furniture and Equipment

    Section 36.309 of the proposed rule would have required that newly 
purchased furniture or equipment made available for use at a place of 
public accommodation be accessible, to the extent such furniture or 
equipment is available, unless this requirement

[[Page 642]]

would fundamentally alter the goods, services, facilities, privileges, 
advantages, or accommodations offered, or would not be readily 
achievable. Proposed Sec. 36.309 has been omitted from the final rule 
because the Department has determined that its requirements are more 
properly addressed under other sections, and because there are currently 
no appropriate accessibility standards addressing many types of 
furniture and equipment.
    Some types of equipment will be required to meet the accessibility 
requirements of subpart D. For example, ADAAG establishes technical and 
scoping requirements in new construction and alterations for automated 
teller machines and telephones. Purchase or modification of equipment is 
required in certain instances by the provisions in Secs. 36.201 and 
36.202. For example, an arcade may need to provide accessible video 
machines in order to ensure full and equal enjoyment of the facilities 
and to provide an opportunity to participate in the services and 
facilities it provides. The barrier removal requirements of Sec. 36.304 
will apply as well to furniture and equipment (lowering shelves, 
rearranging furniture, adding Braille labels to a vending machine).

                Section 36.309  Examinations and Courses

    Section 36.309(a) sets forth the general rule that any private 
entity that offers examinations or courses related to applications, 
licensing, certification, or credentialing for secondary or 
postsecondary education, professional, or trade purposes shall offer 
such examinations or courses in a place and manner accessible to persons 
with disabilities or offer alternative accessible arrangements for such 
individuals.
    Paragraph (a) restates section 309 of the Americans with 
Disabilities Act. Section 309 is intended to fill the gap that is 
created when licensing, certification, and other testing authorities are 
not covered by section 504 of the Rehabilitation Act or title II of the 
ADA. Any such authority that is covered by section 504, because of the 
receipt of Federal money, or by title II, because it is a function of a 
State or local government, must make all of its programs accessible to 
persons with disabilities, which includes physical access as well as 
modifications in the way the test is administered, e.g., extended time, 
written instructions, or assistance of a reader.
    Many licensing, certification, and testing authorities are not 
covered by section 504, because no Federal money is received; nor are 
they covered by title II of the ADA because they are not State or local 
agencies. However, States often require the licenses provided by such 
authorities in order for an individual to practice a particular 
profession or trade. Thus, the provision was included in the ADA in 
order to assure that persons with disabilities are not foreclosed from 
educational, professional, or trade opportunities because an examination 
or course is conducted in an inaccessible site or without needed 
modifications.
    As indicated in the ``Application'' section of this part 
(Sec. 36.102), Sec. 36.309 applies to any private entity that offers the 
specified types of examinations or courses. This is consistent with 
section 309 of the Americans with Disabilities Act, which states that 
the requirements apply to ``any person'' offering examinations or 
courses.
    The Department received a large number of comments on this section, 
reflecting the importance of ensuring that the key gateways to education 
and employment are open to individuals with disabilities. The most 
frequent comments were objections to the fundamental alteration and 
undue burden provisions in Secs. 36.309 (b)(3) and (c)(3) and to 
allowing courses and examinations to be provided through alternative 
accessible arrangements, rather than in an integrated setting.
    Although section 309 of the Act does not refer to a fundamental 
alteration or undue burden limitation, those limitations do appear in 
section 302(b)(2)(A)(iii) of the Act, which establishes the obligation 
of public accommodations to provide auxiliary aids and services. The 
Department, therefore, included it in the paragraphs of Sec. 36.309 
requiring the provision of auxiliary aids. One commenter argued that 
similar limitations should apply to all of the requirements of 
Sec. 36.309, but the Department did not consider this extension 
appropriate.
    Commenters who objected to permitting ``alternative accessible 
arrangements'' argued that such arrangements allow segregation and 
should not be permitted, unless they are the least restrictive available 
alternative, for example, for someone who cannot leave home. Some 
commenters made a distinction between courses, where interaction is an 
important part of the educational experience, and examinations, where it 
may be less important. Because the statute specifically authorizes 
alternative accessible arrangements as a method of meeting the 
requirements of section 309, the Department has not adopted this 
suggestion. The Department notes, however, that, while examinations of 
the type covered by Sec. 36.309 may not be covered elsewhere in the 
regulation, courses will generally be offered in a ``place of 
education,'' which is included in the definition of ``place of public 
accommodation'' in Sec. 36.104, and, therefore, will be subject to the 
integrated setting requirement of Sec. 36.203.
    Section 36.309(b) sets forth specific requirements for examinations. 
Examinations covered by this section would include a bar exam or the 
Scholastic Aptitude Test prepared by the Educational Testing Service. 
Paragraph (b)(1) is adopted from the Department of Education's section 
504 regulation

[[Page 643]]

on admission tests to postsecondary educational programs (34 CFR 
104.42(b)(3)). Paragraph (b)(1)(i) requires that a private entity 
offering an examination covered by the section must assure that the 
examination is selected and administered so as to best ensure that the 
examination accurately reflects an individual's aptitude or achievement 
level or other factor the examination purports to measure, rather than 
reflecting the individual's impaired sensory, manual, or speaking skills 
(except where those skills are the factors that the examination purports 
to measure).
    Paragraph (b)(1)(ii) requires that any examination specially 
designed for individuals with disabilities be offered as often and in as 
timely a manner as other examinations. Some commenters noted that 
persons with disabilities may be required to travel long distances when 
the locations for examinations for individuals with disabilities are 
limited, for example, to only one city in a State instead of a variety 
of cities. The Department has therefore revised this paragraph to add a 
requirement that such examinations be offered at locations that are as 
convenient as the location of other examinations.
    Commenters representing organizations that administer tests wanted 
to be able to require individuals with disabilities to provide advance 
notice and appropriate documentation, at the applicants' expense, of 
their disabilities and of any modifications or aids that would be 
required. The Department agrees that such requirements are permissible, 
provided that they are not unreasonable and that the deadline for such 
notice is no earlier than the deadline for others applying to take the 
examination. Requiring individuals with disabilities to file earlier 
applications would violate the requirement that examinations designed 
for individuals with disabilities be offered in as timely a manner as 
other examinations.
    Examiners may require evidence that an applicant is entitled to 
modifications or aids as required by this section, but requests for 
documentation must be reasonable and must be limited to the need for the 
modification or aid requested. Appropriate documentation might include a 
letter from a physician or other professional, or evidence of a prior 
diagnosis or accommodation, such as eligibility for a special education 
program. The applicant may be required to bear the cost of providing 
such documentation, but the entity administering the examination cannot 
charge the applicant for the cost of any modifications or auxiliary 
aids, such as interpreters, provided for the examination.
    Paragraph (b)(1)(iii) requires that examinations be administered in 
facilities that are accessible to individuals with disabilities or 
alternative accessible arrangements are made.
    Paragraph (b)(2) gives examples of modifications to examinations 
that may be necessary in order to comply with this section. These may 
include providing more time for completion of the examination or a 
change in the manner of giving the examination, e.g., reading the 
examination to the individual.
    Paragraph (b)(3) requires the provision of auxiliary aids and 
services, unless the private entity offering the examination can 
demonstrate that offering a particular auxiliary aid would fundamentally 
alter the examination or result in an undue burden. Examples of 
auxiliary aids include taped examinations, interpreters or other 
effective methods of making aurally delivered materials available to 
individuals with hearing impairments, readers for individuals with 
visual impairments or learning disabilities, and other similar services 
and actions. The suggestion that individuals with learning disabilities 
may need readers is included, although it does not appear in the 
Department of Education regulation, because, in fact, some individuals 
with learning disabilities have visual perception problems and would 
benefit from a reader.
    Many commenters pointed out the importance of ensuring that 
modifications provide the individual with a disability an equal 
opportunity to demonstrate his or her knowledge or ability. For example, 
a reader who is unskilled or lacks knowledge of specific terminology 
used in the examination may be unable to convey the information in the 
questions or to follow the applicant's instructions effectively. 
Commenters pointed out that, for persons with visual impairments who 
read Braille, Braille provides the closest functional equivalent to a 
printed test. The Department has, therefore, added Brailled examinations 
to the examples of auxiliary aids and services that may be required. For 
similar reasons, the Department also added to the list of examples of 
auxiliary aids and services large print examinations and answer sheets; 
``qualified'' readers; and transcribers to write answers.
    A commenter suggested that the phrase ``fundamentally alter the 
examination'' in this paragraph of the proposed rule be revised to more 
accurately reflect the function affected. In the final rule the 
Department has substituted the phrase ``fundamentally alter the 
measurement of the skills or knowledge the examination is intended to 
test.''
    Paragraph (b)(4) gives examples of alternative accessible 
arrangements. For instance, the private entity might be required to 
provide the examination at an individual's home with a proctor. 
Alternative arrangements must provide conditions for individuals with 
disabilities that are comparable to the conditions under which other 
individuals take the examinations. In other words, an

[[Page 644]]

examination cannot be offered to an individual with a disability in a 
cold, poorly lit basement, if other individuals are given the 
examination in a warm, well lit classroom.
    Some commenters who provide examinations for licensing or 
certification for particular occupations or professions urged that they 
be permitted to refuse to provide modifications or aids for persons 
seeking to take the examinations if those individuals, because of their 
disabilities, would be unable to perform the essential functions of the 
profession or occupation for which the examination is given, or unless 
the disability is reasonably determined in advance as not being an 
obstacle to certification. The Department has not changed its rule based 
on this comment. An examination is one stage of a licensing or 
certification process. An individual should not be barred from 
attempting to pass that stage of the process merely because he or she 
might be unable to meet other requirements of the process. If the 
examination is not the first stage of the qualification process, an 
applicant may be required to complete the earlier stages prior to being 
admitted to the examination. On the other hand, the applicant may not be 
denied admission to the examination on the basis of doubts about his or 
her abilities to meet requirements that the examination is not designed 
to test.
    Paragraph (c) sets forth specific requirements for courses. 
Paragraph (c)(1) contains the general rule that any course covered by 
this section must be modified to ensure that the place and manner in 
which the course is given is accessible. Paragraph (c)(2) gives examples 
of possible modifications that might be required, including extending 
the time permitted for completion of the course, permitting oral rather 
than written delivery of an assignment by a person with a visual 
impairment, or adapting the manner in which the course is conducted 
(i.e., providing cassettes of class handouts to an individual with a 
visual impairment). In response to comments, the Department has added to 
the examples in paragraph (c)(2) specific reference to distribution of 
course materials. If course materials are published and available from 
other sources, the entity offering the course may give advance notice of 
what materials will be used so as to allow an individual to obtain them 
in Braille or on tape but materials provided by the course offerer must 
be made available in alternative formats for individuals with 
disabilities.
    In language similar to that of paragraph (b), paragraph (c)(3) 
requires auxiliary aids and services, unless a fundamental alteration or 
undue burden would result, and paragraph (c)(4) requires that courses be 
administered in accessible facilities. Paragraph (c)(5) gives examples 
of alternative accessible arrangements. These may include provision of 
the course through videotape, cassettes, or prepared notes. Alternative 
arrangements must provide comparable conditions to those provided to 
others, including similar lighting, room temperature, and the like. An 
entity offering a variety of courses, to fulfill continuing education 
requirements for a profession, for example, may not limit the selection 
or choice of courses available to individuals with disabilities.

    Section 36.310  Transportation Provided by Public Accommodations

    Section 36.310 contains specific provisions relating to public 
accommodations that provide transportation to their clients or 
customers. This section has been substantially revised in order to 
coordinate the requirements of this section with the requirements 
applicable to these transportation systems that will be contained in the 
regulations issued by the Secretary of Transportation pursuant to 
section 306 of the ADA, to be codified at 49 CFR part 37. The Department 
notes that, although the responsibility for issuing regulations 
applicable to transportation systems operated by public accommodations 
is divided between this Department and the Department of -
Transportation, enforcement authority is assigned only to the Department 
of Justice.
    The Department received relatively few comments on this section of 
the proposed rule. Most of the comments addressed issues that are not 
specifically addressed in this part, such as the standards for 
accessible vehicles and the procedure for determining whether equivalent 
service is provided. Those standards will be contained in the regulation 
issued by the Department of Transportation. Other commenters raised 
questions about the types of transportation that will be subject to this 
section. In response to these inquiries, the Department has revised the 
list of examples contained in the regulation.
    Paragraph (a)(1) states the general rule that covered public 
accommodations are subject to all of the specific provisions of subparts 
B, C, and D, except as provided in Sec. 36.310. Examples of operations 
covered by the requirements are listed in paragraph (a)(2). The stated 
examples include hotel and motel airport shuttle services, customer 
shuttle bus services operated by private companies and shopping centers, 
student transportation, and shuttle operations of recreational 
facilities such as stadiums, zoos, amusement parks, and ski resorts. 
This brief list is not exhaustive. The section applies to any fixed 
route or demand responsive transportation system operated by a public 
accommodation for the benefit of its clients or customers. The section 
does not apply to transportation services provided only to employees. 
Employee transportation will be subject to the regulations issued by the

[[Page 645]]

Equal Employment Opportunity Commission to implement title I of the Act. 
However, if employees and customers or clients are served by the same 
transportation system, the provisions of this section will apply.
    Paragraph (b) specifically provides that a public accommodation 
shall remove transportation barriers in existing vehicles to the extent 
that it is readily achievable to do so, but that the installation of 
hydraulic or other lifts is not required.
    Paragraph (c) provides that public accommodations subject to this 
section shall comply with the requirements for transportation vehicles 
and systems contained in the regulations issued by the Secretary of 
Transportation.

               Subpart D--New Construction and Alterations

    Subpart D implements section 303 of the Act, which requires that 
newly constructed or altered places of public accommodation or 
commercial facilities be readily accessible to and usable by individuals 
with disabilities. This requirement contemplates a high degree of 
convenient access. It is intended to ensure that patrons and employees 
of places of public accommodation and employees of commercial facilities 
are able to get to, enter, and use the facility.
    Potential patrons of places of public accommodation, such as retail 
establishments, should be able to get to a store, get into the store, 
and get to the areas where goods are being provided. Employees should 
have the same types of access, although those individuals require access 
to and around the employment area as well as to the area in which goods 
and services are provided.
    The ADA is geared to the future--its goal being that, over time, 
access will be the rule, rather than the exception. Thus, the Act only 
requires modest expenditures, of the type addressed in Sec. 36.304 of 
this part, to provide access to existing facilities not otherwise being 
altered, but requires all new construction and alterations to be 
accessible.
    The Act does not require new construction or alterations; it simply 
requires that, when a public accommodation or other private entity 
undertakes the construction or alteration of a facility subject to the 
Act, the newly constructed or altered facility must be made accessible. 
This subpart establishes the requirements for new construction and 
alterations.
    As explained under the discussion of the definition of ``facility,'' 
Sec. 36.104, pending development of specific requirements, the 
Department will not apply this subpart to places of public accommodation 
located in mobile units, boats, or other conveyances.

                    Section 36.401  New Construction

                                 General

    Section 36.401 implements the new construction requirements of the 
ADA. Section 303 (a)(1) of the Act provides that discrimination for 
purposes of section 302(a) of the Act includes a failure to design and 
construct facilities for first occupancy later than 30 months after the 
date of enactment (i.e., after January 26, 1993) that are readily 
accessible to and usable by individuals with disabilities.
    Paragraph 36.401(a)(1) restates the general requirement for 
accessible new construction. The proposed rule stated that ``any public 
accommodation or other private entity responsible for design and 
construction'' must ensure that facilities conform to this requirement. 
Various commenters suggested that the proposed language was not 
consistent with the statute because it substituted ``private entity 
responsible for design and construction'' for the statutory language; 
because it did not address liability on the part of architects, 
contractors, developers, tenants, owners, and other entities; and 
because it limited the liability of entities responsible for commercial 
facilities. In response, the Department has revised this paragraph to 
repeat the language of section 303(a) of the ADA. The Department will 
interpret this section in a manner consistent with the intent of the 
statute and with the nature of the responsibilities of the various 
entities for design, for construction, or for both.

              Designed and Constructed for First Occupancy

    According to paragraph (a)(2), a facility is subject to the new 
construction requirements only if a completed application for a building 
permit or permit extension is filed after January 26, 1992, and the 
facility is occupied after January 26, 1993.
    The proposed rule set forth for comment two alternative ways by 
which to determine what facilities are subject to the Act and what 
standards apply. Paragraph (a)(2) of the final rule is a slight 
variation on Option One in the proposed rule. The reasons for the 
Department's choice of Option One are discussed later in this section.
    Paragraph (a)(2) acknowledges that Congress did not contemplate 
having actual occupancy be the sole trigger for the accessibility 
requirements, because the statute prohibits a failure to ``design and 
construct for first occupancy,'' rather than requiring accessibility in 
facilities actually occupied after a particular date.
    The commenters overwhelmingly agreed with the Department's proposal 
to use a date certain; many cited the reasons given in the preamble to 
the proposed rule. First, it is

[[Page 646]]

helpful for designers and builders to have a fixed date for accessible 
design, so that they can determine accessibility requirements early in 
the planning and design stage. It is difficult to determine 
accessibility requirements in anticipation of the actual date of first 
occupancy because of unpredictable and uncontrollable events (e.g., 
strikes affecting suppliers or labor, or natural disasters) that may 
delay occupancy. To redesign or reconstruct portions of a facility if it 
begins to appear that occupancy will be later than anticipated would be 
quite costly. A fixed date also assists those responsible for enforcing, 
or monitoring compliance with, the statute, and those protected by it.
    The Department considered using as a trigger date for application of 
the accessibility standards the date on which a permit is granted. The 
Department chose instead the date on which a complete permit application 
is certified as received by the appropriate government entity. Almost 
all commenters agreed with this choice of a trigger date. This decision 
is based partly on information that several months or even years can 
pass between application for a permit and receipt of a permit. Design is 
virtually complete at the time an application is complete (i.e., 
certified to contain all the information required by the State, county, 
or local government). After an application is filed, delays may occur 
before the permit is granted due to numerous factors (not necessarily 
relating to accessibility): for example, hazardous waste discovered on 
the property, flood plain requirements, zoning disputes, or opposition 
to the project from various groups. These factors should not require 
redesign for accessibility if the application was completed before 
January 26, 1992. However, if the facility must be redesigned for other 
reasons, such as a change in density or environmental preservation, and 
the final permit is based on a new application, the rule would require 
accessibility if that application was certified complete after January 
26, 1992.
    The certification of receipt of a complete application for a 
building permit is an appropriate point in the process because 
certifications are issued in writing by governmental authorities. In 
addition, this approach presents a clear and objective standard.
    However, a few commenters pointed out that in some jurisdictions it 
is not possible to receive a ``certification'' that an application is 
complete, and suggested that in those cases the fixed date should be the 
date on which an application for a permit is received by the government 
agency. The Department has included such a provision in 
Sec. 36.401(a)(2)(i).
    The date of January 26, 1992, is relevant only with respect to the 
last application for a permit or permit extension for a facility. Thus, 
if an entity has applied for only a ``foundation'' permit, the date of 
that permit application has no effect, because the entity must also 
apply for and receive a permit at a later date for the actual 
superstructure. In this case, it is the date of the later application 
that would control, unless construction is not completed within the time 
allowed by the permit, in which case a third permit would be issued and 
the date of the application for that permit would be determinative for 
purposes of the rule.

 Choice of Option One for Defining ``Designed and Constructed for First 
                               Occupancy''

    Under the option the Department has chosen for determining 
applicability of the new construction standards, a building would be 
considered to be ``for first occupancy'' after January 26, 1993, only 
(1) if the last application for a building permit or permit extension 
for the facility is certified to be complete (or, in some jurisdictions, 
received) by a State, county, or local government after January 26, 
1992, and (2) if the first certificate of occupancy is issued after 
January 26, 1993. The Department also asked for comment on an Option 
Two, which would have imposed new construction requirements if a 
completed application for a building permit or permit extension was 
filed after the enactment of the ADA (July 26, 1990), and the facility 
was occupied after January 26, 1993.
    The request for comment on this issue drew a large number of 
comments expressing a wide range of views. Most business groups and some 
disability rights groups favored Option One, and some business groups 
and most disability rights groups favored Option Two. Individuals and 
government entities were equally divided; several commenters proposed 
other options.
    Those favoring Option One pointed out that it is more reasonable in 
that it allows time for those subject to the new construction 
requirements to anticipate those requirements and to receive technical 
assistance pursuant to the Act. Numerous commenters said that time 
frames for designing and constructing some types of facilities (for 
example, health care facilities) can range from two to four years or 
more. They expressed concerns that Option Two, which would apply to some 
facilities already under design or construction as of the date the Act 
was signed, and to some on which construction began shortly after 
enactment, could result in costly redesign or reconstruction of those 
facilities. In the same vein, some Option One supporters found Option 
Two objectionable on due process grounds. In their view, Option Two 
would mean that in July 1991 (upon issuance of the final DOJ rule) the 
responsible entities would learn that ADA standards had been in effect 
since July 26, 1990, and this would amount to retroactive

[[Page 647]]

application of standards. Numerous commenters characterized Option Two 
as having no support in the statute and Option One as being more 
consistent with congressional intent.
    Those who favored Option Two pointed out that it would include more 
facilities within the coverage of the new construction standards. They 
argued that because similar accessibility requirements are in effect 
under State laws, no hardship would be imposed by this option. Numerous 
commenters said that hardship would also be eliminated in light of their 
view that the ADA requires compliance with the Uniform Federal 
Accessibility Standards (UFAS) until issuance of DOJ standards. Those 
supporting Option Two claimed that it was more consistent with the 
statute and its legislative history.
    The Department has chosen Option One rather than Option Two, 
primarily on the basis of the language of three relevant sections of the 
statute. First, section 303(a) requires compliance with accessibility 
standards set forth, or incorporated by reference in, regulations to be 
issued by the Department of Justice. Standing alone, this section cannot 
be read to require compliance with the Department's standards before 
those standards are issued (through this rulemaking). Second, according 
to section 310 of the statute, section 303 becomes effective on January 
26, 1992. Thus, section 303 cannot impose requirements on the design of 
buildings before that date. Third, while section 306(d) of the Act 
requires compliance with UFAS if final regulations have not been issued, 
that provision cannot reasonably be read to take effect until July 26, 
1991, the date by which the Department of Justice must issue final 
regulations under title III.
    Option Two was based on the premise that the interim standards in 
section 306(d) take effect as of the ADA's enactment (July 26, 1990), 
rather than on the date by which the Department of Justice regulations 
are due to be issued (July 26, 1991). The initial clause of section 
306(d)(1) itself is silent on this question:

    If final regulations have not been issued pursuant to this section, 
for new construction for which a * * * building permit is obtained prior 
to the issuance of final regulations * * * (interim standards apply).

    The approach in Option Two relies partly on the language of section 
310 of the Act, which provides that section 306, the interim standards 
provision, takes effect on the date of enactment. Under this 
interpretation the interim standards provision would prevail over the 
operative provision, section 303, which requires that new construction 
be accessible and which becomes effective January 26, 1992. This 
approach would also require construing the language of section 306(d)(1) 
to take effect before the Department's standards are due to be issued. 
The preferred reading of section 306 is that it would require that, if 
the Department's final standards had not been issued by July 26, 1991, 
UFAS would apply to certain buildings until such time as the 
Department's standards were issued.

   General Substantive Requirements of the New Construction Provisions

    The rule requires, as does the statute, that covered newly 
constructed facilities be readily accessible to and usable by 
individuals with disabilities. The phrase ``readily accessible to and 
usable by individuals with disabilities'' is a term that, in slightly 
varied formulations, has been used in the Architectural Barriers Act of 
1968, the Fair Housing Act, the regulations implementing section 504 of 
the Rehabilitation Act of 1973, and current accessibility standards. It 
means, with respect to a facility or a portion of a facility, that it 
can be approached, entered, and used by individuals with disabilities 
(including mobility, sensory, and cognitive impairments) easily and 
conveniently. A facility that is constructed to meet the requirements of 
the rule's accessibility standards will be considered readily accessible 
and usable with respect to construction. To the extent that a particular 
type or element of a facility is not specifically addressed by the 
standards, the language of this section is the safest guide.
    A private entity that renders an ``accessible'' building 
inaccessible in its operation, through policies or practices, may be in 
violation of section 302 of the Act. For example, a private entity can 
render an entrance to a facility inaccessible by keeping an accessible 
entrance open only during certain hours (whereas the facility is 
available to others for a greater length of time). A facility could 
similarly be rendered inaccessible if a person with disabilities is 
significantly limited in her or his choice of a range of accommodations.
    Ensuring access to a newly constructed facility will include 
providing access to the facility from the street or parking lot, to the 
extent the responsible entity has control over the route from those 
locations. In some cases, the private entity will have no control over 
access at the point where streets, curbs, or sidewalks already exist, 
and in those instances the entity is encouraged to request modifications 
to a sidewalk, including installation of curb cuts, from a public entity 
responsible for them. However, as some commenters pointed out, there is 
no obligation for a private entity subject to title III of the ADA to 
seek or ensure compliance by a public entity with title II. Thus, 
although a locality may have an obligation under title II of the Act to 
install curb cuts at a particular location, that responsibility is 
separate from the private entity's title III obligation, and

[[Page 648]]

any involvement by a private entity in seeking cooperation from a public 
entity is purely voluntary in this context.

                               Work Areas

    Proposed paragraph 36.401(b) addressed access to employment areas, 
rather than to the areas where goods or services are being provided. The 
preamble noted that the proposed paragraph provided guidance for new 
construction and alterations until more specific guidance was issued by 
the ATBCB and reflected in this Department's regulation. The entire 
paragraph has been deleted from this section in the final rule. The 
concepts of paragraphs (b) (1), (2), and (5) of the proposed rule are 
included, with modifications and expansion, in ADAAG. Paragraphs (3) and 
(4) of the proposed rule, concerning fixtures and equipment, are not 
included in the rule or in ADAAG.
    Some commenters asserted that questions relating to new construction 
and alterations of work areas should be addressed by the EEOC under 
title I, as employment concerns. However, the legislative history of the 
statute clearly indicates that the new construction and alterations 
requirements of title III were intended to ensure accessibility of new 
facilities to all individuals, including employees. The language of 
section 303 sweeps broadly in its application to all public 
accommodations and commercial facilities. EEOC's title I regulations 
will address accessibility requirements that come into play when 
``reasonable accommodation'' to individual employees or applicants with 
disabilities is mandated under title I.
    The issues dealt with in proposed Sec. 36.401(b) (1) and (2) are now 
addressed in ADAAG section 4.1.1(3). The Department's proposed 
paragraphs would have required that areas that will be used only by 
employees as work stations be constructed so that individuals with 
disabilities could approach, enter, and exit the areas. They would not 
have required that all individual work stations be constructed or 
equipped (for example, with shelves that are accessible or adaptable) to 
be accessible. This approach was based on the theory that, as long as an 
employee with disabilities could enter the building and get to and 
around the employment area, modifications in a particular work station 
could be instituted as a ``reasonable accommodation'' to that employee 
if the modifications were necessary and they did not constitute an undue 
hardship.
    Almost all of the commenters agreed with the proposal to require 
access to a work area but not to require accessibility of each 
individual work station. This principle is included in ADAAG 4.1.1(3). 
Several of the comments related to the requirements of the proposed 
ADAAG and have been addressed in the accessibility standards.
    Proposed paragraphs (b) (3) and (4) would have required that 
consideration be given to placing fixtures and equipment at accessible 
heights in the first instance, and to purchasing new equipment and 
fixtures that are adjustable. These paragraphs have not been included in 
the final rule because the rule in most instances does not establish 
accessibility standards for purchased equipment. (See discussion 
elsewhere in the preamble of proposed Sec. 36.309.) While the Department 
encourages entities to consider providing accessible or adjustable 
fixtures and equipment for employees, this rule does not require them to 
do so.
    Paragraph (b)(5) of proposed Sec. 36.401 clarified that proposed 
paragraph (b) did not limit the requirement that employee areas other 
than individual work stations must be accessible. For example, areas 
that are employee ``common use'' areas and are not solely used as work 
stations (e.g., employee lounges, cafeterias, health units, exercise 
facilities) are treated no differently under this regulation than other 
parts of a building; they must be constructed or altered in compliance 
with the accessibility standards. This principle is not stated in 
Sec. 36.401 but is implicit in the requirements of this section and 
ADAAG.

               Commercial Facilities in Private Residences

    Section 36.401(b) of the final rule is a new provision relating to 
commercial facilities located in private residences. The proposed rule 
addressed these requirements in the preamble to Sec. 36.207, ``Places of 
public accommodation located in private residences.'' The preamble 
stated that the approach for commercial facilities would be the same as 
that for places of public accommodation, i.e., those portions used 
exclusively as a commercial facility or used as both a commercial 
facility and for residential purposes would be covered. Because 
commercial facilities are only subject to new construction and 
alterations requirements, however, the covered portions would only be 
subject to subpart D. This approach is reflected in Sec. 36.401(b)(1).
    The Department is aware that the statutory definition of 
``commercial facility'' excludes private residences because they are 
``expressly exempted from coverage under the Fair Housing Act of 1968, 
as amended.'' However, the Department interprets that exemption as 
applying only to facilities that are exclusively residential. When a 
facility is used as both a residence and a commercial facility, the 
exemption does not apply.
    Paragraph (b)(2) is similar to the new paragraph (b) under 
Sec. 36.207, ``Places of public accommodation located in private 
residences.'' The paragraph clarifies that the covered portion includes 
not only the space used as a commercial facility, but also the elements 
used to enter the commercial facility, e.g., the homeowner's front 
sidewalk, if any; the

[[Page 649]]

doorway; the hallways; the restroom, if used by employees or visitors of 
the commercial facility; and any other portion of the residence, 
interior or exterior, used by employees or visitors of the commercial 
facility.
    As in the case of public accommodations located in private 
residences, the new construction standards only apply to the extent that 
a portion of the residence is designed or intended for use as a 
commercial facility. Likewise, if a homeowner alters a portion of his 
home to convert it to a commercial facility, that work must be done in 
compliance with the alterations standards in appendix A.

                       Structural Impracticability

    Proposed Sec. 36.401(c) is included in the final rule with minor 
changes. It details a statutory exception to the new construction 
requirement: the requirement that new construction be accessible does 
not apply where an entity can demonstrate that it is structurally 
impracticable to meet the requirements of the regulation. This provision 
is also included in ADAAG, at section 4.1.1(5)(a).
    Consistent with the legislative history of the ADA, this narrow 
exception will apply only in rare and unusual circumstances where unique 
characteristics of terrain make accessibility unusually difficult. Such 
limitations for topographical problems are analogous to an acknowledged 
limitation in the application of the accessibility requirements of the 
Fair Housing Amendments Act (FHAA) of 1988.
    Almost all commenters supported this interpretation. Two commenters 
argued that the DOJ requirement is too limiting and would not exempt 
some buildings that should be exempted because of soil conditions, 
terrain, and other unusual site conditions. These commenters suggested 
consistency with HUD's Fair Housing Accessibility Guidelines (56 FR 9472 
(1991)), which generally would allow exceptions from accessibility 
requirements, or allow compliance with less stringent requirements, on 
sites with slopes exceeding 10%.
    The Department is aware of the provisions in HUD's guidelines, which 
were issued on March 6, 1991, after passage of the ADA and publication 
of the Department's proposed rule. The approach taken in these 
guidelines, which apply to different types of construction and implement 
different statutory requirements for new construction, does not bind 
this Department in regulating under the ADA. The Department has included 
in the final rule the substance of the proposed provision, which is 
faithful to the intent of the statute, as expressed in the legislative 
history. (See Senate report at 70-71; Education and Labor report at 
120.)
    The limited structural impracticability exception means that it is 
acceptable to deviate from accessibility requirements only where unique 
characteristics of terrain prevent the incorporation of accessibility 
features and where providing accessibility would destroy the physical 
integrity of a facility. A situation in which a building must be built 
on stilts because of its location in marshlands or over water is an 
example of one of the few situations in which the exception for 
structural impracticability would apply.
    This exception to accessibility requirements should not be applied 
to situations in which a facility is located in ``hilly'' terrain or on 
a plot of land upon which there are steep grades. In such circumstances, 
accessibility can be achieved without destroying the physical integrity 
of a structure, and is required in the construction of new facilities.
    Some commenters asked for clarification concerning when and how to 
apply the ADA rules or the Fair Housing Accessibility Guidelines, 
especially when a facility may be subject to both because of mixed use. 
Guidance on this question is provided in the discussion of the 
definitions of place of public accommodation and commercial facility. 
With respect to the structural impracticability exception, a mixed-use 
facility could not take advantage of the Fair Housing exemption, to the 
extent that it is less stringent than the ADA exemption, except for 
those portions of the facility that are subject only to the Fair Housing 
Act.
    As explained in the preamble to the proposed rule, in those rare 
circumstances in which it is structurally impracticable to achieve full 
compliance with accessibility retirements under the ADA, places of 
public accommodation and commercial facilities should still be designed 
and constructed to incorporate accessibility features to the extent that 
the features are structurally practicable. The accessibility 
requirements should not be viewed as an all-or-nothing proposition in 
such circumstances.
    If it is structurally impracticable for a facility in its entirety 
to be readily accessible to and usable by people with disabilities, then 
those portions that can be made accessible should be made accessible. If 
a building cannot be constructed in compliance with the full range of 
accessibility requirements because of structural impracticability, then 
it should still incorporate those features that are structurally 
practicable. If it is structurally impracticable to make a particular 
facility accessible to persons who have particular types of 
disabilities, it is still appropriate to require it to be made 
accessible to persons with other types of disabilities. For example, a 
facility that is of necessity built on stilts and cannot be made 
accessible to persons who use wheelchairs because it is structurally 
impracticable to do so, must be made accessible for individuals

[[Page 650]]

with vision or hearing impairments or other kinds of disabilities.

                           Elevator Exemption

    Section 36.401(d) implements the ``elevator exemption'' for new 
construction in section 303(b) of the ADA. The elevator exemption is an 
exception to the general requirement that new facilities be readily 
accessible to and usable by individuals with disabilities. Generally, an 
elevator is the most common way to provide individuals who use 
wheelchairs ``ready access'' to floor levels above or below the ground 
floor of a multi-story building. Congress, however, chose not to require 
elevators in new small buildings, that is, those with less than three 
stories or less than 3,000 square feet per story. In buildings eligible 
for the exemption, therefore, ``ready access'' from the building 
entrance to a floor above or below the ground floor is not required, 
because the statute does not require that an elevator be installed in 
such buildings. The elevator exemption does not apply, however, to a 
facility housing a shopping center, a shopping mall, or the professional 
office of a health care provider, or other categories of facilities as 
determined by the Attorney General. For example, a new office building 
that will have only two stories, with no elevator planned, will not be 
required to have an elevator, even if each story has 20,000 square feet. 
In other words, having either less than 3000 square feet per story or 
less than three stories qualifies a facility for the exemption; it need 
not qualify for the exemption on both counts. Similarly, a facility that 
has five stories of 2800 square feet each qualifies for the exemption. 
If a facility has three or more stories at any point, it is not eligible 
for the elevator exemption unless all the stories are less than 3000 
square feet.
    The terms ``shopping center or shopping mall'' and ``professional 
office of a health care provider'' are defined in this section. They are 
substantively identical to the definitions included in the proposed rule 
in Sec. 36.104, ``Definitions.'' They have been moved to this section 
because, as commenters pointed out, they are relevant only for the 
purposes of the elevator exemption, and inclusion in the general 
definitions section could give the incorrect impression that an office 
of a health care provider is not covered as a place of public 
accommodation under other sections of the rule, unless the office falls 
within the definition.
    For purposes of Sec. 36.401, a ``shopping center or shopping mall'' 
is (1) a building housing five or more sales or rental establishments, 
or (2) a series of buildings on a common site, either under common 
ownership or common control or developed either as one project or as a 
series of related projects, housing five or more sales or rental 
establishments. The term ``shopping center or shopping mall'' only 
includes floor levels containing at least one sales or rental 
establishment, or any floor level that was designed or intended for use 
by at least one sales or rental establishment.
    Any sales or rental establishment of the type that is included in 
paragraph (5) of the definition of ``place of public accommodation'' 
(for example, a bakery, grocery store, clothing store, or hardware 
store) is considered a sales or rental establishment for purposes of 
this definition; the other types of public accommodations (e.g., 
restaurants, laundromats, banks, travel services, health spas) are not.
    In the preamble to the proposed rule, the Department sought comment 
on whether the definition of ``shopping center or mall'' should be 
expanded to include any of these other types of public accommodations. 
The Department also sought comment on whether a series of buildings 
should fall within the definition only if they are physically connected.
    Most of those responding to the first question (overwhelmingly 
groups representing people with disabilities, or individual commenters) 
urged that the definition encompass more places of public accommodation, 
such as restaurants, motion picture houses, laundromats, dry cleaners, 
and banks. They pointed out that often it is not known what types of 
establishments will be tenants in a new facility. In addition, they 
noted that malls are advertised as entities, that their appeal is in the 
``package'' of services offered to the public, and that this package 
often includes the additional types of establishments mentioned.
    Commenters representing business groups sought to exempt banks, 
travel services, grocery stores, drug stores, and freestanding retail 
stores from the elevator requirement. They based this request on the 
desire to continue the practice in some locations of incorporating 
mezzanines housing administrative offices, raised pharmacist areas, and 
raised areas in the front of supermarkets that house safes and are used 
by managers to oversee operations of check-out aisles and other 
functions. Many of these concerns are adequately addressed by ADAAG. 
Apart from those addressed by ADAAG, the Department sees no reason to 
treat a particular type of sales or rental establishment differently 
from any other. Although banks and travel services are not included as 
``sales or rental establishments,'' because they do not fall under 
paragraph (5) of the definition of place of public accommodation, 
grocery stores and drug stores are included.
    The Department has declined to include places of public 
accommodation other than sales or rental establishments in the 
definition. The statutory definition of ``public accommodation'' 
(section 301(7)) lists 12 types of establishments that are considered 
public

[[Page 651]]

accommodations. Category (E) includes ``a bakery, grocery store, 
clothing store, hardware store, shopping center, or other sales or 
rental establishment.'' This arrangement suggests that it is only these 
types of establishments that would make up a shopping center for 
purposes of the statute. To include all types of places of public 
accommodation, or those from 6 or 7 of the categories, as commenters 
suggest, would overly limit the elevator exemption; the universe of 
facilities covered by the definition of ``shopping center'' could well 
exceed the number of multitenant facilities not covered, which would 
render the exemption almost meaningless.
    For similar reasons, the Department is retaining the requirement 
that a building or series of buildings must house five or more sales or 
rental establishments before it falls within the definition of 
``shopping center.'' Numerous commenters objected to the number and 
requested that the number be lowered from five to three or four. 
Lowering the number in this manner would include an inordinately large 
number of two-story multitenant buildings within the category of those 
required to have elevators.
    The responses to the question concerning whether a series of 
buildings should be connected in order to be covered were varied. 
Generally, disability rights groups and some government agencies said a 
series of buildings should not have to be connected, and pointed to a 
trend in some areas to build shopping centers in a garden or village 
setting. The Department agrees that this design choice should not negate 
the elevator requirement for new construction. Some business groups 
answered the question in the affirmative, and some suggested a different 
definition of shopping center. For example, one commenter recommended 
the addition of a requirement that the five or more establishments be 
physically connected on the non-ground floors by a common pedestrian 
walkway or pathway, because otherwise a series of stand-alone facilities 
would have to comply with the elevator requirement, which would be 
unduly burdensome and perhaps infeasible. Another suggested use of what 
it characterized as the standard industry definition: ``A group of 
retail stores and related business facilities, the whole planned, 
developed, operated and managed as a unit.'' While the rule's definition 
would reach a series of related projects that are under common control 
but were not developed as a single project, the Department considers 
such a facility to be a shopping center within the meaning of the 
statute. However, in light of the hardship that could confront a series 
of existing small stand-alone buildings if elevators were required in 
alterations, the Department has included a common access route in the 
definition of shopping center or shopping mall for purposes of 
Sec. 36.404.
    Some commenters suggested that access to restrooms and other shared 
facilities open to the public should be required even if those 
facilities were not on a shopping floor. Such a provision with respect 
to toilet or bathing facilities is included in the elevator exception in 
final ADAAG 4.1.3(5).
    For purposes of this subpart, the rule does not distinguish between 
a ``shopping mall'' (usually a building with a roofed-over common 
pedestrian area serving more than one tenant in which a majority of the 
tenants have a main entrance from the common pedestrian area) and a 
``shopping center'' (e.g., a ``shopping strip''). Any facility housing 
five or more of the types of sales or rental establishments described, 
regardless of the number of other types of places of public 
accommodation housed there (e.g., offices, movie theatres, restaurants), 
is a shopping center or shopping mall.
    For example, a two-story facility built for mixed-use occupancy on 
both floors (e.g., by sales and rental establishments, a movie theater, 
restaurants, and general office space) is a shopping center or shopping 
mall if it houses five or more sales or rental establishments. If none 
of these establishments is located on the second floor, then only the 
ground floor, which contains the sales or rental establishments, would 
be a ``shopping center or shopping mall,'' unless the second floor was 
designed or intended for use by at least one sales or rental 
establishment. In determining whether a floor was intended for such use, 
factors to be considered include the types of establishments that first 
occupied the floor, the nature of the developer's marketing strategy, 
i.e., what types of establishments were sought, and inclusion of any 
design features particular to rental and sales establishments.
    A ``professional office of a health care provider'' is defined as a 
location where a person or entity regulated by a State to provide 
professional services related to the physical or mental health of an 
individual makes such services available to the public. In a two-story 
development that houses health care providers only on the ground floor, 
the ``professional office of a health care provider'' is limited to the 
ground floor unless the second floor was designed or intended for use by 
a health care provider. In determining if a floor was intended for such 
use, factors to be considered include whether the facility was 
constructed with special plumbing, electrical, or other features needed 
by health care providers, whether the developer marketed the facility as 
a medical office center, and whether any of the establishments that 
first occupied the floor was, in fact, a health care provider.
    In addition to requiring that a building that is a shopping center, 
shopping mall, or the professional office of a health care provider have 
an elevator regardless of square

[[Page 652]]

footage or number of floors, the ADA (section 303(b)) provides that the 
Attorney General may determine that a particular category of facilities 
requires the installation of elevators based on the usage of the 
facilities. The Department, as it proposed to do, has added to the 
nonexempt categories terminals, depots, or other stations used for 
specified public transportation, and airport passenger terminals. 
Numerous commenters in all categories endorsed this proposal; none 
opposed it. It is not uncommon for an airport passenger terminal or 
train station, for example, to have only two floors, with gates on both 
floors. Because of the significance of transportation, because a person 
with disabilities could be arriving or departing at any gate, and 
because inaccessible facilities could result in a total denial of 
transportation services, it is reasonable to require that newly 
constructed transit facilities be accessible, regardless of square 
footage or number of floors. One comment suggested an amendment that 
would treat terminals and stations similarly to shopping centers, by 
requiring an accessible route only to those areas used for passenger 
loading and unloading and for other passenger services. Paragraph 
(d)(2)(ii) has been modified accordingly.
    Some commenters suggested that other types of facilities (e.g., 
educational facilities, libraries, museums, commercial facilities, and 
social service facilities) should be included in the category of 
nonexempt facilities. The Department has not found adequate 
justification for including any other types of facilities in the 
nonexempt category at this time.
    Section 36.401(d)(2) establishes the operative requirements 
concerning the elevator exemption and its application to shopping 
centers and malls, professional offices of health care providers, 
transit stations, and airport passenger terminals. Under the rule's 
framework, it is necessary first to determine if a new facility 
(including one or more buildings) houses places of public accommodation 
or commercial facilities that are in the categories for which elevators 
are required. If so, and the facility is a shopping center or shopping 
mall, or a professional office of a health care provider, then any area 
housing such an office or a sales or rental establishment or the 
professional office of a health care provider is not entitled to the 
elevator exemption.
    The following examples illustrate the application of these 
principles:
    1. A shopping mall has an upper and a lower level. There are two 
``anchor stores'' (in this case, major department stores at either end 
of the mall, both with exterior entrances and an entrance on each level 
from the common area). In addition, there are 30 stores (sales or rental 
establishments) on the upper level, all of which have entrances from a 
common central area. There are 30 stores on the lower level, all of 
which have entrances from a common central area. According to the rule, 
elevator access must be provided to each store and to each level of the 
anchor stores. This requirement could be satisfied with respect to the 
60 stores through elevators connecting the two pedestrian levels, 
provided that an individual could travel from the elevator to any other 
point on that level (i.e., into any store through a common pedestrian 
area) on an accessible path.
    2. A commercial (nonresidential) ``townhouse'' development is 
composed of 20 two-story attached buildings. The facility is developed 
as one project, with common ownership, and the space will be leased to 
retailers. Each building has one accessible entrance from a pedestrian 
walk to the first floor. From that point, one can enter a store on the 
first floor, or walk up a flight of stairs to a store on the second 
floor. All 40 stores must be accessible at ground floor level or by 
accessible vertical access from that level. This does not mean, however, 
that 20 elevators must be installed. Access could be provided to the 
second floor by an elevator from the pedestrian area on the lower level 
to an upper walkway connecting all the areas on the second floor.
    3. In the same type of development, it is planned that retail stores 
will be housed exclusively on the ground floor, with only office space 
(not professional offices of health care providers) on the second. 
Elevator access need not be provided to the second floor because all the 
sales or rental establishments (the entities that make the facility a 
shopping center) are located on an accessible ground floor.
    4. In the same type of development, the space is designed and 
marketed as medical or office suites, or as a medical office facility. 
Accessible vertical access must be provided to all areas, as described 
in example 2.
    Some commenters suggested that building owners who knowingly lease 
or rent space to nonexempt places of public accommodation would violate 
Sec. 36.401. However, the Department does not consider leasing or 
renting inaccessible space in itself to constitute a violation of this 
part. Nor does a change in use of a facility, with no accompanying 
alterations (e.g., if a psychiatrist replaces an attorney as a tenant in 
a second-floor office, but no alterations are made to the office) 
trigger accessibility requirements.
    Entities cannot evade the requirements of this section by 
constructing facilities in such a way that no story is intended to 
constitute a ``ground floor.'' For example, if a private entity 
constructs a building whose main entrance leads only to stairways or 
escalators that connect with upper or lower floors, the Department would 
consider at least one level of the facility a ground story.

[[Page 653]]

    The rule requires in Sec. 36.401(d)(3), consistent with the proposed 
rule, that, even if a building falls within the elevator exemption, the 
floor or floors other than the ground floor must nonetheless be 
accessible, except for elevator access, to individuals with 
disabilities, including people who use wheelchairs. This requirement 
applies to buildings that do not house sales or rental establishments or 
the professional offices of a health care provider as well as to those 
in which such establishments or offices are all located on the ground 
floor. In such a situation, little added cost is entailed in making the 
second floor accessible, because it is similar in structure and floor 
plan to the ground floor.
    There are several reasons for this provision. First, some 
individuals who are mobility impaired may work on a building's second 
floor, which they can reach by stairs and the use of crutches; however, 
the same individuals, once they reach the second floor, may then use a 
wheelchair that is kept in the office. Secondly, because the first floor 
will be accessible, there will be little additional cost entailed in 
making the second floor, with the same structure and generally the same 
floor plan, accessible. In addition, the second floor must be accessible 
to those persons with disabilities who do not need elevators for level 
changes (for example, persons with sight or hearing impairments and 
those with certain mobility impairments). Finally, if an elevator is 
installed in the future for any reason, full access to the floor will be 
facilitated.
    One commenter asserted that this provision goes beyond the 
Department's authority under the Act, and disagreed with the 
Department's claim that little additional cost would be entailed in 
compliance. However, the provision is taken directly from the 
legislative history (see Education and Labor report at 114).
    One commenter said that where an elevator is not required, platform 
lifts should be required. Two commenters pointed out that the elevator 
exemption is really an exemption from the requirement for providing an 
accessible route to a second floor not served by an elevator. The 
Department agrees with the latter comment. Lifts to provide access 
between floors are not required in buildings that are not required to 
have elevators. This point is specifically addressed in the appendix to 
ADAAG (Sec. 4.1.3(5)). ADAAG also addresses in detail the situations in 
which lifts are permitted or required.

                       Section 36.402  Alterations

    Sections 36.402-36.405 implement section 303(a)(2) of the Act, which 
requires that alterations to existing facilities be made in a way that 
ensures that the altered portion is readily accessible to and usable by 
individuals with disabilities. This part does not require alterations; 
it simply provides that when alterations are undertaken, they must be 
made in a manner that provides access.
    Section 36.402(a)(1) provides that any alteration to a place of 
public accommodation or a commercial facility, after January 26, 1992, 
shall be made so as to ensure that, to the maximum extent feasible, the 
altered portions of the facility are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    The proposed rule provided that an alteration would be deemed to be 
undertaken after January 26, 1992, if the physical alteration of the 
property is in progress after that date. Commenters pointed out that 
this provision would, in some cases, produce an unjust result by 
requiring the redesign or retrofitting of projects initiated before this 
part established the ADA accessibility standards. The Department agrees 
that the proposed rule would, in some instances, unfairly penalize 
projects that were substantially completed before the effective date. 
Therefore, paragraph (a)(2) has been revised to specify that an 
alteration will be deemed to be undertaken after January 26, 1992, if 
the physical alteration of the property begins after that date. As a 
matter of interpretation, the Department will construe this provision to 
apply to alterations that require a permit from a State, County or local 
government, if physical alterations pursuant to the terms of the permit 
begin after January 26, 1992. The Department recognizes that this 
application of the effective date may require redesign of some 
facilities that were planned prior to the publication of this part, but 
no retrofitting will be required of facilities on which the physical 
alterations were initiated prior to the effective date of the Act. Of 
course, nothing in this section in any way alters the obligation of any 
facility to remove architectural barriers in existing facilities to the 
extent that such barrier removal is readily achievable.
    Paragraph (b) provides that, for the purposes of this part, an 
``alteration'' is a change to a place of public accommodation or a 
commercial facility that affects or could affect the usability of the 
building or facility or any part thereof. One commenter suggested that 
the concept of usability should apply only to those changes that affect 
access by persons with disabilities. The Department remains convinced 
that the Act requires the concept of ``usability'' to be read broadly to 
include any change that affects the usability of the facility, not 
simply changes that relate directly to access by individuals with 
disabilities.
    The Department received a significant number of comments on the 
examples provided in paragraphs (b)(1) and (b)(2) of the proposed rule. 
Some commenters urged the Department to limit the application of this 
provision to major structural modifications,

[[Page 654]]

while others asserted that it should be expanded to include cosmetic 
changes such as painting and wallpapering. The Department believes that 
neither approach is consistent with the legislative history, which 
requires this Department's regulation to be consistent with the 
accessibility guidelines (ADAAG) developed by the Architectural and 
Transportation Barriers Compliance Board (ATBCB). Although the 
legislative history contemplates that, in some instances, the ADA 
accessibility standards will exceed the current MGRAD requirements, it 
also clearly indicates the view of the drafters that ``minor changes 
such as painting or papering walls * * * do not affect usability'' 
(Education and Labor report at 111, Judiciary report at 64), and, 
therefore, are not alterations. The proposed rule was based on the 
existing MGRAD definition of ``alteration.'' The language of the final 
rule has been revised to be consistent with ADAAG, incorporated as 
appendix A to this part.
    Some commenters sought clarification of the intended scope of this 
section. The proposed rule contained illustrations of changes that 
affect usability and those that do not. The intent of the illustrations 
was to explain the scope of the alterations requirement; the effect was 
to obscure it. As a result of the illustrations, some commenters 
concluded that any alteration to a facility, even a minor alteration 
such as relocating an electrical outlet, would trigger an extensive 
obligation to provide access throughout an entire facility. That result 
was never contemplated.
    Therefore, in this final rule paragraph (b)(1) has been revised to 
include the major provisions of paragraphs (b)(1) and (b)(2) of the 
proposed rule. The examples in the proposed rule have been deleted. 
Paragraph (b)(1) now provides that alterations include, but are not 
limited to, remodeling, renovation, rehabilitation, reconstruction, 
historic restoration, changes or rearrangement in structural parts or 
elements, and changes or rearrangement in the plan configuration of 
walls and full-height partitions. Normal maintenance, reroofing, 
painting or wallpapering, asbestos removal, or changes to mechanical and 
electrical systems are not alterations unless they affect the usability 
of building or facility.
    Paragraph (b)(2) of this final rule was added to clarify the scope 
of the alterations requirement. Paragraph (b)(2) provides that if 
existing elements, spaces, or common areas are altered, then each such 
altered element, space, or area shall comply with the applicable 
provisions of appendix A (ADAAG). As provided in Sec. 36.403, if an 
altered space or area is an area of the facility that contains a primary 
function, then the requirements of that section apply.
    Therefore, when an entity undertakes a minor alteration to a place 
of public accommodation or commercial facility, such as moving an 
electrical outlet, the new outlet must be installed in compliance with 
ADAAG. (Alteration of the elements listed in Sec. 36.403(c)(2) cannot 
trigger a path of travel obligation.) If the alteration is to an area, 
such as an employee lounge or locker room, that is not an area of the 
facility that contains a primary function, that area must comply with 
ADAAG. It is only when an alteration affects access to or usability of 
an area containing a primary function, as opposed to other areas or the 
elements listed in Sec. 36.403(c)(2), that the path of travel to the 
altered area must be made accessible.
    The Department received relatively few comments on paragraph (c), 
which explains the statutory phrase ``to the maximum extent feasible.'' 
Some commenters suggested that the regulation should specify that cost 
is a factor in determining whether it is feasible to make an altered 
area accessible. The legislative history of the ADA indicates that the 
concept of feasibility only reaches the question of whether it is 
possible to make the alteration accessible in compliance with this part. 
Costs are to be considered only when an alteration to an area containing 
a primary function triggers an additional requirement to make the path 
of travel to the altered area accessible.
    Section 36.402(c) is, therefore, essentially unchanged from the 
proposed rule. At the recommendation of a commenter, the Department has 
inserted the word ``virtually'' to modify ``impossible'' to conform to 
the language of the legislative history. It explains that the phrase 
``to the maximum extent feasible'' as used in this section applies to 
the occasional case where the nature of an existing facility makes it 
virtually impossible to comply fully with applicable accessibility 
standards through a planned alteration. In the occasional cases in which 
full compliance is impossible, alterations shall provide the maximum 
physical accessibility feasible. Any features of the facility that are 
being altered shall be made accessible unless it is technically 
infeasible to do so. If providing accessibility in conformance with this 
section to individuals with certain disabilities (e.g., those who use 
wheelchairs) would not be feasible, the facility shall be made 
accessible to persons with other types of disabilities (e.g., those who 
use crutches or who have impaired vision or hearing, or those who have 
other types of impairments).

               Section 36.403  Alterations: Path of Travel

    Section 36.403 implements the statutory requirement that any 
alteration that affects or could affect the usability of or access to an 
area of a facility that contains a primary function shall be made so as 
to ensure that, to the maximum extent feasible, the path of travel to 
the altered area, and the restrooms,

[[Page 655]]

telephones, and drinking fountains serving the altered area, are readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the cost and scope of such 
alterations is disproportionate to the cost of the overall alteration. 
Paragraph (a) restates this statutory requirement.
    Paragraph (b) defines a ``primary function'' as a major activity for 
which the facility is intended. This paragraph is unchanged from the 
proposed rule. Areas that contain a primary function include, but are 
not limited to, the customer services lobby of a bank, the dining area 
of a cafeteria, the meeting rooms in a conference center, as well as 
offices and all other work areas in which the activities of the public 
accommodation or other private entities using the facility are carried 
out. The concept of ``areas containing a primary function'' is analogous 
to the concept of ``functional spaces'' in Sec. 3.5 of the existing 
Uniform Federal Accessibility Standards, which defines ``functional 
spaces'' as ``[t]he rooms and spaces in a building or facility that 
house the major activities for which the building or facility is 
intended.''
    Paragraph (b) provides that areas such as mechanical rooms, boiler 
rooms, supply storage rooms, employee lounges and locker rooms, 
janitorial closets, entrances, corridors, and restrooms are not areas 
containing a primary function. There may be exceptions to this general 
rule. For example, the availability of public restrooms at a place of 
public accommodation at a roadside rest stop may be a major factor 
affecting customers' decisions to patronize the public accommodation. In 
that case, a restroom would be considered to be an ``area containing a 
primary function'' of the facility.
    Most of the commenters who addressed this issue supported the 
approach taken by the Department; but a few commenters suggested that 
areas not open to the general public or those used exclusively by 
employees should be excluded from the definition of primary function. 
The preamble to the proposed rule noted that the Department considered 
an alternative approach to the definition of ``primary function,'' under 
which a primary function of a commercial facility would be defined as a 
major activity for which the facility was intended, while a primary 
function of a place of public accommodation would be defined as an 
activity which involves providing significant goods, services, 
facilities, privileges, advantages, or accommodations. However, the 
Department concluded that, although portions of the legislative history 
of the ADA support this alternative, the better view is that the 
language now contained in Sec. 36.403(b) most accurately reflects 
congressional intent. No commenter made a persuasive argument that the 
Department's interpretation of the legislative history is incorrect.
    When the ADA was introduced, the requirement to make alterations 
accessible was included in section 302 of the Act, which identifies the 
practices that constitute discrimination by a public accommodation. 
Because section 302 applies only to the operation of a place of public 
accommodation, the alterations requirement was intended only to provide 
access to clients and customers of a public accommodation. It was 
anticipated that access would be provided to employees with disabilities 
under the ``reasonable accommodation'' requirements of title I. However, 
during its consideration of the ADA, the House Judiciary Committee 
amended the bill to move the alterations provision from section 302 to 
section 303, which applies to commercial facilities as well as public 
accommodations. The Committee report accompanying the bill explains 
that:

    New construction and alterations of both public accommodations and 
commercial facilities must be made readily accessible to and usable by 
individuals with disabilities * * *. Essentially, [this requirement] is 
designed to ensure that patrons and employees of public accommodations 
and commercial facilities are able to get to, enter and use the facility 
* * *. The rationale for making new construction accessible applies with 
equal force to alterations.

Judiciary report at 62-63 (emphasis added).
    The ADA, as enacted, contains the language of section 303 as it was 
reported out of the Judiciary Committee. Therefore, the Department has 
concluded that the concept of ``primary function'' should be applied in 
the same manner to places of public accommodation and to commercial 
facilities, thereby including employee work areas in places of public 
accommodation within the scope of this section.
    Paragraph (c) provides examples of alterations that affect the 
usability of or access to an area containing a primary function. The 
examples include: Remodeling a merchandise display area or employee work 
areas in a department store; installing a new floor surface to replace 
an inaccessible surface in the customer service area or employee work 
areas of a bank; redesigning the assembly line area of a factory; and 
installing a computer center in an accounting firm. This list is 
illustrative, not exhaustive. Any change that affects the usability of 
or access to an area containing a primary function triggers the 
statutory obligation to make the path of travel to the altered area 
accessible.
    When the proposed rule was drafted, the Department believed that the 
rule made it clear that the ADA would require alterations to the path of 
travel only when such alterations are not disproportionate to the 
alteration to the primary function area. However,

[[Page 656]]

the comments that the Department received indicated that many commenters 
believe that even minor alterations to individual elements would require 
additional alterations to the path of travel. To address the concern of 
these commenters, a new paragraph (c)(2) has been added to the final 
rule to provide that alterations to such elements as windows, hardware, 
controls (e.g. light switches or thermostats), electrical outlets, or 
signage will not be deemed to be alterations that affect the usability 
of or access to an area containing a primary function. Of course, each 
element that is altered must comply with ADAAG (appendix A) . The cost 
of alterations to individual elements would be included in the overall 
cost of an alteration for purposes of determining disproportionality and 
would be counted when determining the aggregate cost of a series of 
small alterations in accordance with Sec. 36.401(h) if the area is 
altered in a manner that affects access to or usability of an area 
containing a primary function.
    Paragraph (d) concerns the respective obligations of landlords and 
tenants in the cases of alterations that trigger the path of travel 
requirement under Sec. 36.403. This paragraph was contained in the 
landlord/tenant section of the proposed rule, Sec. 36.201(b). If a 
tenant is making alterations upon its premises pursuant to terms of a 
lease that grant it the authority to do so (even if they constitute 
alterations that trigger the path of travel requirement), and the 
landlord is not making alterations to other parts of the facility, then 
the alterations by the tenant on its own premises do not trigger a path 
of travel obligation upon the landlord in areas of the facility under 
the landlord's authority that are not otherwise being altered. The 
legislative history makes clear that the path of travel requirement 
applies only to the entity that is already making the alteration, and 
thus the Department has not changed the final rule despite numerous 
comments suggesting that the tenant be required to provide a path of 
travel.
    Paragraph (e) defines a ``path of travel'' as a continuous, 
unobstructed way of pedestrian passage by means of which an altered area 
may be approached, entered, and exited; and which connects the altered 
area with an exterior approach (including sidewalks, streets, and 
parking areas), an entrance to the facility, and other parts of the 
facility. This concept of an accessible path of travel is analogous to 
the concepts of ``accessible route'' and ``circulation path'' contained 
in section 3.5 of the current UFAS. Some commenters suggested that this 
paragraph should address emergency egress. The Department disagrees. 
``Path of travel'' as it is used in this section is a term of art under 
the ADA that relates only to the obligation of the public accommodation 
or commercial facility to provide additional accessible elements when an 
area containing a primary function is altered. The Department recognizes 
that emergency egress is an important issue, but believes that it is 
appropriately addressed in ADAAG (appendix A), not in this paragraph. 
Furthermore, ADAAG does not require changes to emergency egress areas in 
alterations.
    Paragraph (e)(2) is drawn from section 3.5 of UFAS. It provides that 
an accessible path of travel may consist of walks and sidewalks, curb 
ramps and other interior or exterior pedestrian ramps; clear floor paths 
through lobbies, corridors, rooms, and other improved areas; parking 
access aisles; elevators and lifts; or a combination of such elements. 
Paragraph (e)(3) provides that, for the purposes of this part, the term 
``path of travel'' also includes the restrooms, telephones, and drinking 
fountains serving an altered area.
    Although the Act establishes an expectation that an accessible path 
of travel should generally be included when alterations are made to an 
area containing a primary function, Congress recognized that, in some 
circumstances, providing an accessible path of travel to an altered area 
may be sufficiently burdensome in comparison to the alteration being 
undertaken to the area containing a primary function as to render this 
requirement unreasonable. Therefore, Congress provided, in section 
303(a)(2) of the Act, that alterations to the path of travel that are 
disproportionate in cost and scope to the overall alteration are not 
required.
    The Act requires the Attorney General to determine at what point the 
cost of providing an accessible path of travel becomes disproportionate. 
The proposed rule provided three options for making this determination.
    Two committees of Congress specifically addressed this issue: the 
House Committee on Education and Labor and the House Committee on the 
Judiciary. The reports issued by each committee suggested that 
accessibility alterations to a path of travel might be 
``disproportionate'' if they exceed 30% of the alteration costs 
(Education and Labor report at 113; Judiciary report at 64). Because the 
Department believed that smaller percentage rates might be appropriate, 
the proposed rule sought comments on three options: 10%, 20%, or 30%.
    The Department received a significant number of comments on this 
section. Commenters representing individuals with disabilities generally 
supported the use of 30% (or more); commenters representing covered 
entities supported a figure of 10% (or less). The Department believes 
that alterations made to provide an accessible path of travel to the 
altered area should be deemed disproportionate to the overall alteration 
when the cost exceeds 20% of the cost of the alteration to the primary 
function area. This approach appropriately reflects the intent of 
Congress to provide access for individuals

[[Page 657]]

with disabilities without causing economic hardship for the covered 
public accommodations and commercial facilities.
    The Department has determined that the basis for this cost 
calculation shall be the cost of the alterations to the area containing 
the primary function. This approach will enable the public accommodation 
or other private entity that is making the alteration to calculate its 
obligation as a percentage of a clearly ascertainable base cost, rather 
than as a percentage of the ``total'' cost, an amount that will change 
as accessibility alterations to the path of travel are made.
    Paragraph (f)(2) (paragraph (e)(2) in the proposed rule) is 
unchanged. It provides examples of costs that may be counted as 
expenditures required to provide an accessible path of travel. They 
include:
     Costs associated with providing an accessible entrance and 
an accessible route to the altered area, for example, the cost of 
widening doorways or installing ramps;
     Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
     Costs associated with providing accessible telephones, such 
as relocating telephones to an accessible height, installing 
amplification devices, or installing telecommunications devices for deaf 
persons (TDD's);
     Costs associated with relocating an inaccessible drinking 
fountain.
    Paragraph (f)(1) of the proposed rule provided that when the cost of 
alterations necessary to make the path of travel serving an altered area 
fully accessible is disproportionate to the cost of the overall 
alteration, the path of travel shall be made accessible to the maximum 
extent feasible. In response to the suggestion of a commenter, the 
Department has made an editorial change in the final rule (paragraph 
(g)(1)) to clarify that if the cost of providing a fully accessible path 
of travel is disproportionate, the path of travel shall be made 
accessible ``to the extent that it can be made accessible without 
incurring disproportionate costs.''
    Paragraph (g)(2) (paragraph (f)(2) in the NPRM) establishes that 
priority should be given to those elements that will provide the 
greatest access, in the following order: An accessible entrance; an 
accessible route to the altered area; at least one accessible restroom 
for each sex or a single unisex restroom; accessible telephones; 
accessible drinking fountains; and, whenever possible, additional 
accessible elements such as parking, storage, and alarms. This paragraph 
is unchanged from the proposed rule.
    Paragraph (h) (paragraph (g) in the proposed rule) provides that the 
obligation to provide an accessible path of travel may not be evaded by 
performing a series of small alterations to the area served by a single 
path of travel if those alterations could have been performed as a 
single undertaking. If an area containing a primary function has been 
altered without providing an accessible path of travel to serve that 
area, and subsequent alterations of that area, or a different area on 
the same path of travel, are undertaken within three years of the 
original alteration, the total cost of alterations to primary function 
areas on that path of travel during the preceding three year period 
shall be considered in determining whether the cost of making the path 
of travel serving that area accessible is disproportionate. Only 
alterations undertaken after January 26, 1992, shall be considered in 
determining if the cost of providing accessible features is 
disproportionate to the overall cost of the alterations.

             Section 36.404  Alterations: Elevator Exemption

    Section 36.404 implements the elevator exemption in section 303(b) 
of the Act as it applies to altered facilities. The provisions of 
section 303(b) are discussed in the preamble to Sec. 36.401(d) above. 
The statute applies the same exemption to both new construction and 
alterations. The principal difference between the requirements of 
Sec. 36.401(d) and Sec. 36.404 is that, in altering an existing facility 
that is not eligible for the statutory exemption, the public 
accommodation or other private entity responsible for the alteration is 
not required to install an elevator if the installation of an elevator 
would be disproportionate in cost and scope to the cost of the overall 
alteration as provided in Sec. 36.403(f)(1). In addition, the standards 
referenced in Sec. 36.406 (ADAAG) provide that installation of an 
elevator in an altered facility is not required if it is ``technically 
infeasible.''
    This section has been revised to define the terms ``professional 
office of a health care provider'' and ``shopping center or shopping 
mall'' for the purposes of this section. The definition of 
``professional office of a health care provider'' is identical to the 
definition included in Sec. 36.401(d).
    It has been brought to the attention of the Department that there is 
some misunderstanding about the scope of the elevator exemption as it 
applies to the professional office of a health care provider. A public 
accommodation, such as the professional office of a health care 
provider, is required to remove architectural barriers to its facility 
to the extent that such barrier removal is readily achievable (see 
Sec. 36.304), but it is not otherwise required by this part to undertake 
new construction or alterations. This part does not require that an 
existing two story building that houses the professional office of a 
health care provider be altered for the

[[Page 658]]

purpose of providing elevator access. If, however, alterations to the 
area housing the office of the health care provider are undertaken for 
other purposes, the installation of an elevator might be required, but 
only if the cost of the elevator is not disproportionate to the cost of 
the overall alteration. Neither the Act nor this part prohibits a health 
care provider from locating his or her professional office in an 
existing facility that does not have an elevator.
    Because of the unique challenges presented in altering existing 
facilities, the Department has adopted a definition of ``shopping center 
or shopping mall'' for the purposes of this section that is slightly 
different from the definition adopted under Sec. 36.401(d). For the 
purposes of this section, a ``shopping center or shopping mall'' is (1) 
a building housing five or more sales or rental establishments, or (2) a 
series of buildings on a common site, connected by a common pedestrian 
access route above or below the ground floor, either under common 
ownership or common control or developed either as one project or as a 
series of related projects, housing five or more sales or rental 
establishments. As is the case with new construction, the term 
``shopping center or shopping mall'' only includes floor levels housing 
at least one sales or rental establishment, or any floor level that was 
designed or intended for use by at least one sales or rental 
establishment.
    The Department believes that it is appropriate to use a different 
definition of ``shopping center or shopping mall'' for this section than 
for Sec. 36.401, in order to make it clear that a series of existing 
buildings on a common site that is altered for the use of sales or 
rental establishments does not become a ``shopping center or shopping 
mall'' required to install an elevator, unless there is a common means 
of pedestrian access above or below the ground floor. Without this 
exemption, separate, but adjacent, buildings that were initially 
designed and constructed independently of each other could be required 
to be retrofitted with elevators, if they were later renovated for a 
purpose not contemplated at the time of construction.
    Like Sec. 36.401(d), Sec. 36.404 provides that the exemptions in 
this paragraph do not obviate or limit in any way the obligation to 
comply with the other accessibility requirements established in this 
subpart. For example, alterations to floors above or below the ground 
floor must be accessible regardless of whether the altered facility has 
an elevator. If a facility that is not required to install an elevator 
nonetheless has an elevator, that elevator shall meet, to the maximum 
extent feasible, the accessibility requirements of this section.

           Section 36.405  Alterations: Historic Preservation

    Section 36.405 gives effect to the intent of Congress, expressed in 
section 504(c) of the Act, that this part recognize the national 
interest in preserving significant historic structures. Commenters 
criticized the Department's use of descriptive terms in the proposed 
rule that are different from those used in the ADA to describe eligible 
historic properties. In addition, some commenters criticized the 
Department's decision to use the concept of ``substantially impairing'' 
the historic features of a property, which is a concept employed in 
regulations implementing section 504 of the Rehabilitation Act of 1973. 
Those commenters recommended that the Department adopt the criteria of 
``adverse effect'' published by the Advisory Council on Historic 
Preservation under the National Historic Preservation Act (36 CFR 800.9) 
as the standard for determining whether an historic property may be 
altered.
    The Department agrees with these comments to the extent that they 
suggest that the language of the rule should conform to the language 
employed by Congress in the ADA. Therefore, the language of this section 
has been revised to make it clear that this provision applies to 
buildings or facilities that are eligible for listing in the National 
Register of Historic Places under the National Historic Preservation Act 
(16 U.S.C. 470 et seq.) and to buildings or facilities that are 
designated as historic under State or local law. The Department 
believes, however, that the criteria of adverse effect employed under 
the National Historic Preservation Act are inappropriate for this rule 
because section 504(c) of the ADA specifies that special alterations 
provisions shall apply only when an alteration would ``threaten or 
destroy the historic significance of qualified historic buildings and 
facilities.''
    The Department intends that the exception created by this section be 
applied only in those very rare situations in which it is not possible 
to provide access to an historic property using the special access 
provisions in ADAAG. Therefore, paragraph (a) of Sec. 36.405 has been 
revised to provide that alterations to historic properties shall comply, 
to the maximum extent feasible, with section 4.1.7 of ADAAG. Paragraph 
(b) of this section has been revised to provide that if it has been 
determined, under the procedures established in ADAAG, that it is not 
feasible to provide physical access to an historic property that is a 
place of public accommodation in a manner that will not threaten or 
destroy the historic significance of the property, alternative methods 
of access shall be provided pursuant to the requirements of Subpart C.

[[Page 659]]

     Section 36.406  Standards for New Construction and Alterations

    Section 36.406 implements the requirements of sections 306(b) and 
306(c) of the Act, which require the Attorney General to promulgate 
standards for accessible design for buildings and facilities subject to 
the Act and this part that are consistent with the supplemental minimum 
guidelines and requirements for accessible design published by the 
Architectural and Transportation Barriers Compliance Board (ATBCB or 
Board) pursuant to section 504 of the Act. This section of the rule 
provides that new construction and alterations subject to this part 
shall comply with the standards for accessible design published as 
appendix A to this part.
    Appendix A contains the Americans with Disabilities Act 
Accessibility Guidelines for Buildings and Facilities (ADAAG) which is 
being published by the ATBCB as a final rule elsewhere in this issue of 
the Federal Register. As proposed in this Department's proposed rule, 
Sec. 36.406(a) adopts ADAAG as the accessibility standard applicable 
under this rule.
    Paragraph (b) was not included in the proposed rule. It provides, in 
chart form, guidance for using ADAAG together with subparts A through D 
of this part when determining requirements for a particular facility. 
This chart is intended solely as guidance for the user; it has no effect 
for purposes of compliance or enforcement. It does not necessarily 
provide complete or mandatory information.
    Proposed Sec. 36.406(b) is not included in the final rule. That 
provision, which would have taken effect only if the final rule had 
followed the proposed Option Two for Sec. 36.401(a), is unnecessary 
because the Department has chosen Option One, as explained in the 
preamble for that section.
    Section 504(a) of the ADA requires the ATBCB to issue minimum 
guidelines to supplement the existing Minimum Guidelines and 
Requirements for Accessible Design (MGRAD) (36 CFR part 1190) for 
purposes of title III. According to section 504(b) of the Act, the 
guidelines are to establish additional requirements, consistent with the 
Act, ``to ensure that buildings and facilities are accessible, in terms 
of architecture and design, . . . and communication, to individuals with 
disabilities.'' Section 306(c) of the Act requires that the 
accessibility standards included in the Department's regulations be 
consistent with the minimum guidelines, in this case ADAAG.
    As explained in the ATBCB's preamble to ADAAG, the substance and 
form of the guidelines are drawn from several sources. They use as their 
model the 1984 Uniform Federal Accessibility Standards (UFAS) (41 CFR 
part 101, subpart 101-19.6, appendix), which are the standards 
implementing the Architectural Barriers Act. UFAS is based on the 
Board's 1982 MGRAD. ADAAG follows the numbering system and format of the 
private sector American National Standard Institute's ANSI A117.1 
standards. (American National Specifications for Making Buildings and 
Facilities Accessible to and Usable by Physically Handicapped People 
(ANSI A117-1980) and American National Standard for Buildings and 
Facilities--Providing Accessibility and Usability for Physically 
Handicapped People (ANSI A117.1-1986).) ADAAG supplements MGRAD. In 
developing ADAAG, the Board made every effort to be consistent with 
MGRAD and the current and proposed ANSI Standards, to the extent 
consistent with the ADA.
    ADAAG consists of nine main sections and a separate appendix. 
Sections 1 through 3 contain general provisions and definitions. Section 
4 contains scoping provisions and technical specifications applicable to 
all covered buildings and facilities. The scoping provisions are listed 
separately for new construction of sites and exterior facilities; new 
construction of buildings; additions; alterations; and alterations to 
historic properties. The technical specifications generally reprint the 
text and illustrations of the ANSI A117.1 standard, except where 
differences are noted by italics. Sections 5 through 9 of the guidelines 
are special application sections and contain additional requirements for 
restaurants and cafeterias, medical care facilities, business and 
mercantile facilities, libraries, and transient lodging. The appendix to 
the guidelines contains additional information to aid in understanding 
the technical specifications. The section numbers in the appendix 
correspond to the sections of the guidelines to which they relate. An 
asterisk after a section number indicates that additional information 
appears in the appendix.
    ADAAG's provisions are further explained under Summary of ADAAG 
below.

                            General Comments

    One commenter urged the Department to move all or portions of 
subpart D, New Construction and Alterations, to the appendix (ADAAG) or 
to duplicate portions of subpart D in the appendix. The commenter 
correctly pointed out that subpart D is inherently linked to ADAAG, and 
that a self-contained set of rules would be helpful to users. The 
Department has attempted to simplify use of the two documents by 
deleting some paragraphs from subpart D (e.g., those relating to work 
areas), because they are included in ADAAG. However, the Department has 
retained in subpart D those sections that are taken directly from the 
statute or that give meaning to specific statutory concepts (e.g., 
structural impracticability, path of travel). While some of the subpart 
D provisions are

[[Page 660]]

duplicated in ADAAG, others are not. For example, issues relating to 
path of travel and disproportionality in alterations are not addressed 
in detail in ADAAG. (The structure and contents of the two documents are 
addressed below under Summary of ADAAG.) While the Department agrees 
that it would be useful to have one self-contained document, the 
different focuses of this rule and ADAAG do not permit this result at 
this time. However, the chart included in Sec. 36.406(b) should assist 
users in applying the provisions of subparts A through D, and ADAAG 
together.
    Numerous business groups have urged the Department not to adopt the 
proposed ADAAG as the accessibility standards, because the requirements 
established are too high, reflect the ``state of the art,'' and are 
inflexible, rigid, and impractical. Many of these objections have been 
lodged on the basis that ADAAG exceeds the statutory mandate to 
establish ``minimum'' guidelines. In the view of the Department, these 
commenters have misconstrued the meaning of the term ``minimum 
guidelines.'' The statute clearly contemplates that the guidelines 
establish a level of access--a minimum--that the standards must meet or 
exceed. The guidelines are not to be ``minimal'' in the sense that they 
would provide for a low level of access. To the contrary, Congress 
emphasized that the ADA requires a ``high degree of convenient access.'' 
Education and Labor report at 117-18. The legislative history explains 
that the guidelines may not ``reduce, weaken, narrow or set less 
accessibility standards than those included in existing MGRAD'' and 
should provide greater guidance in communication accessibility for 
individuals with hearing and vision impairments. Id. at 139. Nor did 
Congress contemplate a set of guidelines less detailed than ADAAG; the 
statute requires that the ADA guidelines supplement the existing MGRAD. 
When it established the statutory scheme, Congress was aware of the 
content and purpose of the 1982 MGRAD; as ADAAG does with respect to 
ADA, MGRAD establishes a minimum level of access that the Architectural 
Barriers Act standards (i.e., UFAS) must meet or exceed, and includes a 
high level of detail.
    Many of the same commenters urged the Department to incorporate as 
its accessibility standards the ANSI standard's technical provisions and 
to adopt the proposed scoping provisions under development by the 
Council of American Building Officials' Board for the Coordination of 
Model Codes (BCMC). They contended that the ANSI standard is familiar to 
and accepted by professionals, and that both documents are developed 
through consensus. They suggested that ADAAG will not stay current, 
because it does not follow an established cyclical review process, and 
that it is not likely to be adopted by nonfederal jurisdictions in State 
and local codes. They urged the Department and the Board to coordinate 
the ADAAG provisions and any substantive changes to them with the ANSI 
A117 committee in order to maintain a consistent and uniform set of 
accessibility standards that can be efficiently and effectively 
implemented at the State and local level through the existing building 
regulatory processes.
    The Department shares the commenters' goal of coordination between 
the private sector and Federal standards, to the extent that 
coordination can lead to substantive requirements consistent with the 
ADA. A single accessibility standard, or consistent accessibility 
standards, that can be used for ADA purposes and that can be 
incorporated or referenced by State and local governments, would help to 
ensure that the ADA requirements are routinely implemented at the design 
stage. The Department plans to work toward this goal.
    The Department, however, must comply with the requirements of the 
ADA, the Federal Advisory Committee Act (5 U.S.C app. 1 et seq.) and the 
Administrative Procedure Act (5 U.S.C 551 et seq.). Neither the 
Department nor the Board can adopt private requirements wholesale. 
Furthermore, neither the 1991 ANSI A117 Standard revision nor the BCMC 
process is complete. Although the ANSI and BCMC provisions are not 
final, the Board has carefully considered both the draft BCMC scoping 
provisions and draft ANSI technical standards and included their 
language in ADAAG wherever consistent with the ADA.
    Some commenters requested that, if the Department did not adopt ANSI 
by reference, the Department declare compliance with ANSI/BCMC to 
constitute equivalency with the ADA standards. The Department has not 
adopted this recommendation but has instead worked as a member of the 
ATBCB to ensure that its accessibility standards are practical and 
usable. In addition, as explained under subpart F, Certification of 
State Laws or Local Building Codes, the proper forum for further 
evaluation of this suggested approach would be in conjunction with the 
certification process.
    Some commenters urged the Department to allow an additional comment 
period after the Board published its guidelines in final form, for 
purposes of affording the public a further opportunity to evaluate the 
appropriateness of including them as the Departments accessibility 
standards. Such an additional comment period is unnecessary and would 
unduly delay the issuance of final regulations. The Department put the 
public on notice, through the proposed rule, of its intention to adopt 
the proposed ADAAG, with any changes made by the Board, as the 
accessibility standards. As a member of the

[[Page 661]]

Board and of its ADA Task Force, the Department participated actively in 
the public hearings held on the proposed guidelines and in preparation 
of both the proposed and final versions of ADAAG. Many individuals and 
groups commented directly to the Department's docket, or at its public 
hearings, about ADAAG. The comments received on ADAAG, whether by the 
Board or by this Department, were thoroughly analyzed and considered by 
the Department in the context of whether the proposed ADAAG was 
consistent with the ADA and suitable for adoption as both guidelines and 
standards. The Department is convinced that ADAAG as adopted in its 
final form is appropriate for these purposes. The final guidelines, 
adopted here as standards, will ensure the high level of access 
contemplated by Congress, consistent with the ADA's balance between the 
interests of people with disabilities and the business community.
    A few commenters, citing the Senate report (at 70) and the Education 
and Labor report (at 119), asked the Department to include in the 
regulations a provision stating that departures from particular 
technical and scoping requirements of the accessibility standards will 
be permitted so long as the alternative methods used will provide 
substantially equivalent or greater access to and utilization of the 
facility. Such a provision is found in ADAAG 2.2 and by virtue of that 
fact is included in these regulations.

            Comments on specific provisions of proposed ADAAG

    During the course of accepting comments on its proposed rule, the 
Department received numerous comments on ADAAG. Those areas that 
elicited the heaviest response included assistive listening systems, 
automated teller machines, work areas, parking, areas of refuge, 
telephones (scoping for TDD's and volume controls) and visual alarms. 
Strenuous objections were raised by some business commenters to the 
proposed provisions of the guidelines concerning check-out aisles, 
counters, and scoping for hotels and nursing facilities. All these 
comments were considered in the same manner as other comments on the 
Department's proposed rule and, in the Department's view, have been 
addressed adequately in the final ADAAG.
    Largely in response to comments, the Board made numerous changes 
from its proposal, including the following:
     Generally, at least 50% of public entrances to new 
buildings must be accessible, rather than all entrances, as would often 
have resulted from the proposed approach.
     Not all check-out aisles are required to be accessible.
     The final guidelines provide greater flexibility in 
providing access to sales counters, and no longer require a portion of 
every counter to be accessible.
     Scoping for TDD's or text telephones was increased. One TDD 
or text telephone, for speech and hearing impaired persons, must be 
provided at locations with 4, rather than 6, pay phones, and in 
hospitals and shopping malls. Use of portable (less expensive) TDD's is 
allowed.
     Dispersal of wheelchair seating areas in theaters will be 
required only where there are more than 300 seats, rather than in all 
cases. Seats with removable armrests (i.e., seats into which persons 
with mobility impairments can transfer) will also be required.
     Areas of refuge (areas with direct access to a stairway, 
and where people who cannot use stairs may await assistance during a 
emergency evacuation) will be required, as proposed, but the final 
provisions are based on the Uniform Building Code. Such areas are not 
required in alterations.
     Rather than requiring 5% of new hotel rooms to be 
accessible to people with mobility impairments, between 2 and 4% 
accessibility (depending on total number of rooms) is required. In 
addition, 1% of the rooms must have roll-in showers.
     The proposed rule reserved the provisions on alterations to 
homeless shelters. The final guidelines apply alterations requirements 
to homeless shelters, but the requirements are less stringent than those 
applied to other types of facilities.
     Parking spaces that can be used by people in vans (with 
lifts) will be required.
     As mandated by the ADA, the Board has established a 
procedure to be followed with respect to alterations to historic 
facilities.

                            Summary of ADAAG

    This section of the preamble summarizes the structure of ADAAG, and 
highlights the more important portions.

                       Sections 1 Through 3

    Sections 1 through 3 contain general requirements, including 
definitions.

                    Section 4.1.1, Application

    Section 4 contains scoping requirements. Section 4.1.1, Application, 
provides that all areas of newly designed or newly constructed buildings 
and facilities and altered portions of existing buildings and facilities 
required to be accessible by Sec. 4.1.6 must comply with the guidelines 
unless otherwise provided in Sec. 4.1.1 or a special application 
section. It addresses areas used only by employees as work areas, 
temporary structures, and general exceptions.
    Section 4.1.1(3) preserves the basic principle of the proposed rule: 
Areas that may be used by employees with disabilities shall be designed 
and constructed so that an individual with a disability can approach, 
enter,

[[Page 662]]

and exit the area. The language has been clarified to provide that it 
applies to any area used only as a work area (not just to areas ``that 
may be used by employees with disabilities''), and that the guidelines 
do not require that any area used as an individual work station be 
designed with maneuvering space or equipped to be accessible. The 
appendix to ADAAG explains that work areas must meet the guidelines' 
requirements for doors and accessible routes, and recommends, but does 
not require, that 5% of individual work stations be designed to permit a 
person using a wheelchair to maneuver within the space.
    Further discussion of work areas is found in the preamble concerning 
proposed Sec. 36.401(b).
    Section 4.1.1(5)(a) includes an exception for structural 
impracticability that corresponds to the one found in Sec. 36.401(c) and 
discussed in that portion of the preamble.

  Section 4.1.2, Accessible Sites and Exterior Facilities: New 
                              Construction

    This section addresses exterior features, elements, or spaces such 
as parking, portable toilets, and exterior signage, in new construction. 
Interior elements and spaces are covered by Sec. 4.1.3.
    The final rule retains the UFAS scoping for parking but also 
requires that at least one of every eight accessible parking spaces be 
designed with adequate adjacent space to deploy a lift used with a van. 
These spaces must have a sign indicating that they are van-accessible, 
but they are not to be reserved exclusively for van users.

      Section 4.1.3, Accessible Buildings: New Construction

    This section establishes scoping requirements for new construction 
of buildings and facilities.
    Sections 4.1.3 (1) through (4) cover accessible routes, protruding 
objects, ground and floor surfaces, and stairs.
    Section 4.1.3(5) generally requires elevators to serve each level in 
a newly constructed building, with four exceptions included in the 
subsection. Exception 1 is the ``elevator exception'' established in 
Sec. 36.401(d), which must be read with this section. Exception 4 allows 
the use of platform lifts under certain conditions.
    Section 4.1.3(6), Windows, is reserved. Section 4.1.3(7) applies to 
doors.
    Under Sec. 4.1.3(8), at least 50% of all public entrances must be 
accessible. In addition, if a building is designed to provide access to 
enclosed parking, pedestrian tunnels, or elevated walkways, at least one 
entrance that serves each such function must be accessible. Each tenancy 
in a building must be served by an accessible entrance. Where local 
regulations (e.g., fire codes) require that a minimum number of exits be 
provided, an equivalent number of accessible entrances must be provided. 
(The latter provision does not require a greater number of entrances 
than otherwise planned.)
    ADAAG Section 4.1.3(9), with accompanying technical requirements in 
Section 4.3, requires an area of rescue assistance (i.e., an area with 
direct access to an exit stairway and where people who are unable to use 
stairs may await assistance during an emergency evacuation) to be 
established on each floor of a multi-story building. This was one of the 
most controversial provisions in the guidelines. The final ADAAG is 
based on current Uniform Building Code requirements and retains the 
requirement that areas of refuge (renamed ``areas of rescue 
assistance'') be provided, but specifies that this requirement does not 
apply to buildings that have a supervised automatic sprinkler system. 
Areas of refuge are not required in alterations.
    The next seven subsections deal with drinking fountains 
(Sec. 4.1.3(10)); toilet facilities (Sec. 4.1.3(11)); storage, shelving, 
and display units (Sec. 4.1.3(12)), controls and operating mechanisms 
(Sec. 4.1.3(13)), emergency warning systems (Sec. 4.1.3(14)), detectable 
warnings (Sec. 4.1.3(15)), and building signage (Sec. 4.1.3(16)). 
Paragraph 11 requires that toilet facilities comply with Sec. 4.22, 
which requires one accessible toilet stall (60'' x 60'') in each newly 
constructed restroom. In response to public comments, the final rule 
requires that a second accessible stall (36'' x 60'') be provided in 
restrooms that have six or more stalls.
    ADAAG Section 4.1.3(17) establishes requirements for accessibility 
of pay phones to persons with mobility impairments, hearing impairments 
(requiring some phones with volume controls), and those who cannot use 
voice telephones. It requires one interior ``text telephone'' to be 
provided at any facility that has a total of four or more public pay 
phones. (The term ``text telephone'' has been adopted to reflect current 
terminology and changes in technology.) In addition, text telephones 
will be required in specific locations, such as covered shopping malls, 
hospitals (in emergency rooms, waiting rooms, and recovery areas), and 
convention centers.
    Paragraph 18 of Section 4.1.3 generally requires that at least five 
percent of fixed or built-in seating or tables be accessible.
    Paragraph 19, covering assembly areas, specifies the number of 
wheelchair seating spaces and types and numbers of assistive listening 
systems required. It requires dispersal of wheelchair seating locations 
in facilities where there are more than 300 seats. The guidelines also 
require that at least one percent of all fixed seats be aisle seats 
without armrests (or with moveable armrests) on the aisle side to 
increase accessibility for persons with mobility impairments who prefer 
to transfer from their wheelchairs to

[[Page 663]]

fixed seating. In addition, the final ADAAG requires that fixed seating 
for a companion be located adjacent to each wheelchair location.
    Paragraph 20 requires that where automated teller machines are 
provided, at least one must comply with section 4.34, which, among other 
things, requires accessible controls, and instructions and other 
information that are accessible to persons with sight impairments.
    Under paragraph 21, where dressing rooms are provided, five percent 
or at least one must comply with section 4.35.

                     Section 4.1.5, Additions

    Each addition to an existing building or facility is regarded as an 
alteration subject to Secs. 36.402 through 36.406 of subpart D, 
including the date established in Sec. 36.402(a). But additions also 
have attributes of new construction, and to the extent that a space or 
element in the addition is newly constructed, each new space or element 
must comply with the applicable scoping provisions of sections 4.1.1 to 
4.1.3 for new construction, the applicable technical specifications of 
sections 4.2 through 4.34, and any applicable special provisions in 
sections 5 through 10. For instance, if a restroom is provided in the 
addition, it must comply with the requirements for new construction. 
Construction of an addition does not, however, create an obligation to 
retrofit the entire existing building or facility to meet requirements 
for new construction. Rather, the addition is to be regarded as an 
alteration and to the extent that it affects or could affect the 
usability of or access to an area containing a primary function, the 
requirements in section 4.1.6(2) are triggered with respect to providing 
an accessible path of travel to the altered area and making the 
restrooms, telephones, and drinking fountains serving the altered area 
accessible. For example, if a museum adds a new wing that does not have 
a separate entrance as part of the addition, an accessible path of 
travel would have to be provided through the existing building or 
facility unless it is disproportionate to the overall cost and scope of 
the addition as established in Sec. 36.403(f).

                    Section 4.1.6, Alterations

    An alteration is a change to a building or facility that affects or 
could affect the usability of or access to the building or facility or 
any part thereof. There are three general principles for alterations. 
First, if any existing element or space is altered, the altered element 
or space must meet new construction requirements (section 4.1.6(1)(b)). 
Second, if alterations to the elements in a space when considered 
together amount to an alteration of the space, the entire space must 
meet new construction requirements (section 4.1.6(1)(c)). Third, if the 
alteration affects or could affect the usability of or access to an area 
containing a primary function, the path of travel to the altered area 
and the restrooms, drinking fountains, and telephones serving the 
altered area must be made accessible unless it is disproportionate to 
the overall alterations in terms of cost and scope as determined under 
criteria established by the Attorney General (Sec. 4.1.6(2)).
    Section 4.1.6 should be read with Secs. 36.402 through 36.405. 
Requirements concerning alterations to an area serving a primary 
function are addressed with greater detail in the latter sections than 
in section 4.1.6(2). Section 4.1.6(1)(j) deals with technical 
infeasibility. Section 4.1.6(3) contains special technical provisions 
for alterations to existing buildings and facilities.

               Section 4.1.7, Historic Preservation

    This section contains scoping provisions and alternative 
requirements for alterations to qualified historic buildings and 
facilities. It clarifies the procedures under the National Historic 
Preservation Act and their application to alterations covered by the 
ADA. An individual seeking to alter a facility that is subject to the 
ADA guidelines and to State or local historic preservation statutes 
shall consult with the State Historic Preservation Officer to determine 
if the planned alteration would threaten or destroy the historic 
significance of the facility.

                    Sections 4.2 Through 4.35

    Sections 4.2 through 4.35 contain the technical specifications for 
elements and spaces required to be accessible by the scoping provisions 
(sections 4.1 through 4.1.7) and special application sections (sections 
5 through 10). The technical specifications are the same as the 1980 
version of ANSI A117.1 standard, except as noted in the text by italics.

                       Sections 5 Through 9

    These are special application sections and contain additional 
requirements for restaurants and cafeterias, medical care facilities, 
business and mercantile facilities, libraries, and transient lodging. 
For example, at least 5 percent, but not less than one, of the fixed 
tables in a restaurant must be accessible.
    In section 7, Business and Mercantile, paragraph 7.2 (Sales and 
Service Counters, Teller Windows, Information Counters) has been revised 
to provide greater flexibility in new construction than did the proposed 
rule. At least one of each type of sales or service counter where a cash 
register is located shall be made accessible. Accessible counters shall 
be dispersed throughout the facility. At counters such as bank teller 
windows or ticketing counters, alternative methods of

[[Page 664]]

compliance are permitted. A public accommodation may lower a portion of 
the counter, provide an auxiliary counter, or provide equivalent 
facilitation through such means as installing a folding shelf on the 
front of the counter at an accessible height to provide a work surface 
for a person using a wheelchair.
    Section 7.3., Check-out Aisles, provides that, in new construction, 
a certain number of each design of check-out aisle, as listed in a chart 
based on the total number of check-out aisles of each design, shall be 
accessible. The percentage of check-outs required to be accessible 
generally ranges from 20% to 40%. In a newly constructed or altered 
facility with less than 5,000 square feet of selling space, at least one 
of each type of check-out aisle must be accessible. In altered 
facilities with 5,000 or more square feet of selling space, at least one 
of each design of check-out aisle must be made accessible when altered, 
until the number of accessible aisles of each design equals the number 
that would be required for new construction.

             Section 9, Accessible Transient Lodging

    Section 9 addresses two types of transient lodging: hotels, motels, 
inns, boarding houses, dormitories, resorts, and other similar places 
(sections 9.1 through 9.4); and homeless shelters, halfway houses, 
transient group homes, and other social service establishments (section 
9.5). The interplay of the ADA and Fair Housing Act with respect to such 
facilities is addressed in the preamble discussion of the definition of 
``place of public accommodation'' in Sec. 36.104.
    The final rule establishes scoping requirements for accessibility of 
newly constructed hotels. Four percent of the first hundred rooms, and 
roughly two percent of rooms in excess of 100, must meet certain 
requirements for accessibility to persons with mobility or hearing 
impairments, and an additional identical percentage must be accessible 
to persons with hearing impairments. An additional 1% of the available 
rooms must be equipped with roll-in showers, raising the actual scoping 
for rooms accessible to persons with mobility impairments to 5% of the 
first hundred rooms and 3% thereafter. The final ADAAG also provides 
that when a hotel is being altered, one fully accessible room and one 
room equipped with visual alarms, notification devices, and amplified 
telephones shall be provided for each 25 rooms being altered until the 
number of accessible rooms equals that required under the new 
construction standard. Accessible rooms must be dispersed in a manner 
that will provide persons with disabilities with a choice of single or 
multiple-bed accommodations.
    In new construction, homeless shelters and other social service 
entities must comply with ADAAG; at least one type of amenity in each 
common area must be accessible. In a facility that is not required to 
have an elevator, it is not necessary to provide accessible amenities on 
the inaccessible floors if at least one of each type of amenity is 
provided in accessible common areas. The percentage of accessible 
sleeping accommodations required is the same as that required for other 
places of transient lodging. Requirements for facilities altered for use 
as a homeless shelter parallel the current MGRAD accessibility 
requirements for leased buildings. A shelter located in an altered 
facility must have at least one accessible entrance, accessible sleeping 
accommodations in a number equivalent to that established for new 
construction, at least one accessible toilet and bath, at least one 
accessible common area, and an accessible route connecting all 
accessible areas. All accessible areas in a homeless shelter in an 
altered facility may be located on one level.

                  Section 10, Transportation Facilities

    Section 10 of ADAAG is reserved. On March 20, 1991, the ATBCB 
published a supplemental notice of proposed rulemaking (56 FR 11874) to 
establish special access requirements for transportation facilities. The 
Department anticipates that when the ATBCB issues final guidelines for 
transportation facilities, this part will be amended to include those 
provisions.

                         Subpart E--Enforcement

    Because the Department of Justice does not have authority to 
establish procedures for judicial review and enforcement, subpart E 
generally restates the statutory procedures for enforcement.
    Section 36.501 describes the procedures for private suits by 
individuals and the judicial remedies available. In addition to the 
language in section 308(a)(1) of the Act, Sec. 36.501(a) of this part 
includes the language from section 204(a) of the Civil Rights Act of 
1964 (42 U.S.C. 2000a-3(a)) which is incorporated by reference in the 
ADA. A commenter noted that the proposed rule did not include the 
provision in section 204(a) allowing the court to appoint an attorney 
for the complainant and authorize the commencement of the civil action 
without the payment of fees, costs, or security. That provision has been 
included in the final rule.
    Section 308(a)(1) of the ADA permits a private suit by an individual 
who has reasonable grounds for believing that he or she is ``about to 
be'' subjected to discrimination in violation of section 303 of the Act 
(subpart D

[[Page 665]]

of this part), which requires that new construction and alterations be 
readily accessible to and usable by individuals with disabilities. 
Authorizing suits to prevent construction of facilities with 
architectural barriers will avoid the necessity of costly retrofitting 
that might be required if suits were not permitted until after the 
facilities were completed. To avoid unnecessary suits, this section 
requires that the individual bringing the suit have `reasonable 
grounds'' for believing that a violation is about to occur, but does not 
require the individual to engage in a futile gesture if he or she has 
notice that a person or organization covered by title III of the Act 
does not intend to comply with its provisions.
    Section 36.501(b) restates the provisions of section 308(a)(2) of 
the Act, which states that injunctive relief for the failure to remove 
architectural barriers in existing facilities or the failure to make new 
construction and alterations accessible ``shall include'' an order to 
alter these facilities to make them readily accessible to and usable by 
persons with disabilities to the extent required by title III. The 
Report of the Energy and Commerce Committee notes that ``an order to 
make a facility readily accessible to and usable by individuals with 
disabilities is mandatory'' under this standard. H.R. Rep. No. 485, 
101st Cong., 2d Sess, pt 4, at 64 (1990). Also, injunctive relief shall 
include, where appropriate, requiring the provision of an auxiliary aid 
or service, modification of a policy, or provision of alternative 
methods, to the extent required by title III of the Act and this part.
    Section 36.502 is based on section 308(b)(1)(A)(i) of the Act, which 
provides that the Attorney General shall investigate alleged violations 
of title III and undertake periodic reviews of compliance of covered 
entities. Although the Act does not establish a comprehensive 
administrative enforcement mechanism for investigation and resolution of 
all complaints received, the legislative history notes that 
investigation of alleged violations and periodic compliance reviews are 
essential to effective enforcement of title III, and that the Attorney 
General is expected to engage in active enforcement and to allocate 
sufficient resources to carry out this responsibility. Judiciary Report 
at 67.
    Many commenters argued for inclusion of more specific provisions for 
administrative resolution of disputes arising under the Act and this 
part in order to promote voluntary compliance and avoid the need for 
litigation. Administrative resolution is far more efficient and 
economical than litigation, particularly in the early stages of 
implementation of complex legislation when the specific requirements of 
the statute are not widely understood. The Department has added a new 
paragraph (c) to this section authorizing the Attorney General to 
initiate a compliance review where he or she has reason to believe there 
may be a violation of this rule.
    Section 36.503 describes the procedures for suits by the Attorney 
General set out in section 308(b)(1)(B) of the Act. If the Department 
has reasonable cause to believe that any person or group of persons is 
engaged in a pattern or practice of resistance to the full enjoyment of 
any of the rights granted by title III or that any person or group of 
persons has been denied any of the rights granted by title III and such 
denial raises an issue of general public importance, the Attorney 
General may commence a civil action in any appropriate United States 
district court. The proposed rule provided for suit by the Attorney 
General ``or his or her designee.'' The reference to a ``designee'' has 
been omitted in the final rule because it is unnecessary. The Attorney 
General has delegated enforcement authority under the ADA to the 
Assistant Attorney General for Civil Rights. 55 FR 40653 (October 4, 
1990) (to be codified at 28 CFR 0.50(l).)
    Section 36.504 describes the relief that may be granted in a suit by 
the Attorney General under section 308(b)(2) of the Act. In such an 
action, the court may grant any equitable relief it considers to be 
appropriate, including granting temporary, preliminary, or permanent 
relief, providing an auxiliary aid or service, modification of policy or 
alternative method, or making facilities readily accessible to and 
usable by individuals with disabilities, to the extent required by title 
III. In addition, a court may award such other relief as the court 
considers to be appropriate, including monetary damages to persons 
aggrieved, when requested by the Attorney General.
    Furthermore, the court may vindicate the public interest by 
assessing a civil penalty against the covered entity in an amount not 
exceeding $50,000 for a first violation and not exceeding $100,000 for 
any subsequent violation. Section 36.504(b) of the rule adopts the 
standard of section 308(b)(3) of the Act. This section makes it clear 
that, in counting the number of previous determinations of violations 
for determining whether a ``first'' or ``subsequent'' violation has 
occurred, determinations in the same action that the entity has engaged 
in more than one discriminatory act are to be counted as a single 
violation. A ``second violation'' would not accrue to that entity until 
the Attorney General brought another suit against the entity and the 
entity was again held in violation. Again, all of the violations found 
in the second suit would be cumulatively considered as a ``subsequent 
violation.''
    Section 36.504(c) clarifies that the terms ``monetary damages'' and 
``other relief'' do not include punitive damages. They do include, 
however, all forms of compensatory damages, including out-of-pocket 
expenses and damages for pain and suffering.

[[Page 666]]

    Section 36.504(a)(3) is based on section 308(b)(2)(C) of the Act, 
which provides that, ``to vindicate the public interest,'' a court may 
assess a civil penalty against the entity that has been found to be in 
violation of the Act in suits brought by the Attorney General. In 
addition, Sec. 36.504(d), which is taken from section 308(b)(5) of the 
Act, further provides that, in considering what amount of civil penalty, 
if any, is appropriate, the court shall give consideration to ``any good 
faith effort or attempt to comply with this part.'' In evaluating such 
good faith, the court shall consider ``among other factors it deems 
relevant, whether the entity could have reasonably anticipated the need 
for an appropriate type of auxiliary aid needed to accommodate the 
unique needs of a particular individual with a disability.''
    The ``good faith'' standard referred to in this section is not 
intended to imply a willful or intentional standard--that is, an entity 
cannot demonstrate good faith simply by showing that it did not 
willfully, intentionally, or recklessly disregard the law. At the same 
time, the absence of such a course of conduct would be a factor a court 
should weigh in determining the existence of good faith.
    Section 36.505 states that courts are authorized to award attorneys 
fees, including litigation expenses and costs, as provided in section 
505 of the Act. Litigation expenses include items such as expert witness 
fees, travel expenses, etc. The Judiciary Committee Report specifies 
that such items are included under the rubric of ``attorneys fees'' and 
not ``costs'' so that such expenses will be assessed against a plaintiff 
only under the standard set forth in Christiansburg Garment Co. v. Equal 
Employment Opportunity Commission, 434 U.S. 412 (1978). (Judiciary 
report at 73.)
    Section 36.506 restates section 513 of the Act, which encourages use 
of alternative means of dispute resolution. Section 36.507 explains 
that, as provided in section 506(e) of the Act, a public accommodation 
or other private entity is not excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance.

                     Section 36.305  Effective Date

    In general, title III is effective 18 months after enactment of the 
Americans with Disabilities Act, i.e., January 26, 1992. However, there 
are several exceptions to this general rule contained throughout title 
III. Section 36.508 sets forth all of these exceptions in one place.
    Paragraph (b) contains the rule on civil actions. It states that, 
except with respect to new construction and alterations, no civil action 
shall be brought for a violation of this part that occurs before July 
26, 1992, against businesses with 25 or fewer employees and gross 
receipts of $1,000,000 or less; and before January 26, 1993, against 
businesses with 10 or fewer employees and gross receipts of $500,000 or 
less. In determining what constitutes gross receipts, it is appropriate 
to exclude amounts collected for sales taxes.
    Paragraph (c) concerns transportation services provided by public 
accommodations not primarily engaged in the business of transporting 
people. The 18-month effective date applies to all of the transportation 
provisions except those requiring newly purchased or leased vehicles to 
be accessible. Vehicles subject to that requirement must be accessible 
to and usable by individuals with disabilities if the solicitation for 
the vehicle is made on or after August 26, 1990.

     Subpart F--Certification of State Labs or Local Building Codes

    Subpart F establishes procedures to implement section 
308(b)(1)(A)(ii) of the Act, which provides that, on the application of 
a State or local government, the Attorney General may certify that a 
State law or local building code or similar ordinance meets or exceeds 
the minimum accessibility requirements of the Act. In enforcement 
proceedings, this certification will constitute rebuttable evidence that 
the law or code meets or exceeds the ADA's requirements.
    Three significant changes, further explained below, were made from 
the proposed subpart, in response to comments. First, the State or local 
jurisdiction is required to hold a public hearing on its proposed 
request for certification and to submit to the Department, as part of 
the information and materials in support of a request for certification, 
a transcript of the hearing. Second, the time allowed for interested 
persons and organizations to comment on the request filed with the 
Department (Sec. 36.605(a)(1)) has been changed from 30 to 60 days. 
Finally, a new Sec. 36.608, Guidance concerning model codes, has been 
added.
    Section 36.601 establishes the definitions to be used for purposes 
of this subpart. Two of the definitions have been modified, and a 
definition of ``model code'' has been added. First, in response to a 
comment, a reference to a code ``or part thereof'' has been added to the 
definition of ``code.'' The purpose of this addition is to clarify that 
an entire code need not be submitted if only part of it is relevant to 
accessibility, or if the jurisdiction seeks certification of only some 
of the portions that concern accessibility. The Department does not 
intend to encourage ``piecemeal'' requests for certification by a single 
jurisdiction. In fact, the Department

[[Page 667]]

expects that in some cases, rather than certifying portions of a 
particular code and refusing to certify others, it may notify a 
submitting jurisdiction of deficiencies and encourage a reapplication 
that cures those deficiencies, so that the entire code can be certified 
eventually. Second, the definition of ``submitting official'' has been 
modified. The proposed rule defined the submitting official to be the 
State or local official who has principal responsibility for 
administration of a code. Commenters pointed out that in some cases more 
than one code within the same jurisdiction is relevant for purposes of 
certification. It was also suggested that the Department allow a State 
to submit a single application on behalf of the State, as well as on 
behalf of any local jurisdictions required to follow the State 
accessibility requirements. Consistent with these comments, the 
Department has added to the definition language clarifying that the 
official can be one authorized to submit a code on behalf of a 
jurisdiction.
    A definition of ``model code'' has been added in light of new 
Sec. 36.608.
    Most commenters generally approved of the proposed certification 
process. Some approved of what they saw as the Department's attempt to 
bring State and local codes into alignment with the ADA. A State agency 
said that this section will be the backbone of the intergovernmental 
cooperation essential if the accessibility provisions of the ADA are to 
be effective.
    Some comments disapproved of the proposed process as timeconsuming 
and laborious for the Department, although some of these comments 
pointed out that, if the Attorney General certified model codes on which 
State and local codes are based, many perceived problems would be 
alleviated. (This point is further addressed by new Sec. 36.608.)
    Many of the comments received from business organizations, as well 
as those from some individuals and disability rights groups, addressed 
the relationship of the ADA requirements and their enforcement, to 
existing State and local codes and code enforcement systems. These 
commenters urged the Department to use existing code-making bodies for 
interpretations of the ADA, and to actively participate in the 
integration of the ADA into the text of the national model codes that 
are adopted by State and local enforcement agencies. These issues are 
discussed in preamble section 36.406 under General comments.
    Many commenters urged the Department to evaluate or certify the 
entire code enforcement system (including any process for hearing 
appeals from builders of denials by the building code official of 
requests for variances, waivers, or modifications). Some urged that 
certification not be allowed in jurisdictions where waivers can be 
granted, unless there is a clearly identified decision-making process, 
with written rulings and notice to affected parties of any waiver or 
modification request. One commenter urged establishment of a dispute 
resolution mechanism, providing for interpretation (usually through a 
building official) and an administrative appeals mechanism (generally 
called Boards of Appeal, Boards of Construction Appeals, or Boards of 
Review), before certification could be granted.
    The Department thoroughly considered these proposals but has 
declined to provide for certification of processes of enforcement or 
administration of State and local codes. The statute clearly authorizes 
the Department to certify the codes themselves for equivalency with the 
statute; it would be ill-advised for the Department at this point to 
inquire beyond the face of the code and written interpretations of it. 
It would be inappropriate to require those jurisdictions that grant 
waivers or modifications to establish certain procedures before they can 
apply for certification, or to insist that no deviations can be 
permitted. In fact, the Department expects that many jurisdictions will 
allow slight variations from a particular code, consistent with ADAAG 
itself. ADAAG includes in Sec. 2.2 a statement allowing departures from 
particular requirements where substantially equivalent or greater access 
and usability is provided. Several sections specifically allow for 
alternative methods providing equivalent facilitation and, in some 
cases, provide examples. (See, e.g., section 4.31.9, Text Telephones; 
section 7.2(2) (iii), Sales and Service Counters.) Section 4.1.6 
includes less stringent requirements that are permitted in alterations, 
in certain circumstances.
    However, in an attempt to ensure that it does not certify a code 
that in practice has been or will be applied in a manner that defeats 
its equivalency with the ADA, the Department will require that the 
submitting official include, with the application for certification, any 
relevant manuals, guides, or any other interpretive information issued 
that pertain to the code. (Sec. 36.603(c)(1).) The requirement that this 
information be provided is in addition to the NPRM's requirement that 
the official provide any pertinent formal opinions of the State Attorney 
General or the chief legal officer of the jurisdiction.
    The first step in the certification process is a request for 
certification, filed by a ``submitting official'' (Sec. 36.603). The 
Department will not accept requests for certification until after 
January 26, 1992, the effective date of this part. The Department 
received numerous comments from individuals and organizations 
representing a variety of interests, urging that the hearing required to 
be held by the Assistant Attorney General in Washington, DC, after a 
preliminary determination of equivalency (Sec. 36.605(a)(2)), be

[[Page 668]]

held within the State or locality requesting certification, in order to 
facilitate greater participation by all interested parties. While the 
Department has not modified the requirement that it hold a hearing in 
Washington, it has added a new subparagraph 36.603(b)(3) requiring a 
hearing within the State or locality before a request for certification 
is filed. The hearing must be held after adequate notice to the public 
and must be on the record; a transcript must be provided with the 
request for certification. This procedure will insure input from the 
public at the State or local level and will also insure a Washington, 
DC, hearing as mentioned in the legislative history.
    The request for certification, along with supporting documents 
(Sec. 36.603(c)), must be filed in duplicate with the office of the 
Assistant Attorney General for Civil Rights. The Assistant Attorney 
General may request further information. The request and supporting 
materials will be available for public examination at the office of the 
Assistant Attorney General and at the office of the State or local 
agency charged with administration and enforcement of the code. The 
submitting official must publish public notice of the request for 
certification.
    Next, under Sec. 36.604, the Assistant Attorney General's office 
will consult with the ATBCB and make a preliminary determination to 
either (1) find that the code is equivalent (make a ``preliminary 
determination of equivalency'') or (2) deny certification. The next step 
depends on which of these preliminary determinations is made.
    If the preliminary determination is to find equivalency, the 
Assistant Attorney General, under Sec. 36.605, will inform the 
submitting official in writing of the preliminary determination and 
publish a notice in the Federal Register informing the public of the 
preliminary determination and inviting comment for 60 days. (This time 
period has been increased from 30 days in light of public comment 
pointing out the need for more time within which to evaluate the code.) 
After considering the information received in response to the comments, 
the Department will hold an hearing in Washington. This hearing will not 
be subject to the formal requirements of the Administrative Procedure 
Act. In fact, this requirement could be satisfied by a meeting with 
interested parties. After the hearing, the Assistant Attorney General's 
office will consult again with the ATBCB and make a final determination 
of equivalency or a final determination to deny the request for 
certification, with a notice of the determination published in the 
Federal Register.
    1If the preliminary determination is to deny certification, there 
will be no hearing (Sec. 36.606). The Department will notify the 
submitting official of the preliminary determination, and may specify 
how the code could be modified in order to receive a preliminary 
determination of equivalency. The Department will allow at least 15 days 
for the submitting official to submit relevant material in opposition to 
the preliminary denial. If none is received, no further action will be 
taken. If more information is received, the Department will consider it 
and make either a final decision to deny certification or a preliminary 
determination of equivalency. If at that stage the Assistant Attorney 
General makes a preliminary determination of equivalency, the hearing 
procedures set out in Sec. 36.605 will be followed.
    Section 36.607 addresses the effect of certification. First, 
certification will only be effective concerning those features or 
elements that are both (1) covered by the certified code and (2) 
addressed by the regulations against which they are being certified. For 
example, if children's facilities are not addressed by the Department's 
standards, and the building in question is a private elementary school, 
certification will not be effective for those features of the building 
to be used by children. And if the Department's regulations addressed 
equipment but the local code did not, a building's equipment would not 
be covered by the certification.
    In addition, certification will be effective only for the particular 
edition of the code that is certified. Amendments will not automatically 
be considered certified, and a submitting official will need to reapply 
for certification of the changed or additional provisions.
    Certification will not be effective in those situations where a 
State or local building code official allows a facility to be 
constructed or altered in a manner that does not follow the technical or 
scoping provisions of the certified code. Thus, if an official either 
waives an accessible element or feature or allows a change that does not 
provide equivalent facilitation, the fact that the Department has 
certified the code itself will not stand as evidence that the facility 
has been constructed or altered in accordance with the minimum 
accessibility requirements of the ADA. The Department's certification of 
a code is effective only with respect to the standards in the code; it 
is not to be interpreted to apply to a State or local government's 
application of the code. The fact that the Department has certified a 
code with provisions concerning waivers, variances, or equivalent 
facilitation shall not be interpreted as an endorsement of actions taken 
pursuant to those provisions.
    The final rule includes a new Sec. 36.608 concerning model codes. It 
was drafted in response to concerns raised by numerous commenters, many 
of which have been discussed under General comments (Sec. 36.406). It is 
intended to assist in alleviating the difficulties posed by attempting 
to certify possibly tens

[[Page 669]]

of thousands of codes. It is included in recognition of the fact that 
many codes are based on, or incorporate, model or consensus standards 
developed by nationally recognized organizations (e.g., the American 
National Standards Institute (ANSI); Building Officials and Code 
Administrators (BOCA) International; Council of American Building 
Officials (CABO) and its Board for the Coordination of Model Codes 
(BCMC); Southern Building Code Congress International (SBCCI)). While 
the Department will not certify or ``precertify'' model codes, as urged 
by some commenters, it does wish to encourage the continued viability of 
the consensus and model code process consistent with the purposes of the 
ADA.
    The new section therefore allows an authorized representative of a 
private entity responsible for developing a model code to apply to the 
Assistant Attorney General for review of the code. The review process 
will be informal and will not be subject to the procedures of 
Secs. 36.602 through 36.607. The result of the review will take the form 
of guidance from the Assistant Attorney General as to whether and in 
what respects the model code is consistent with the ADA's requirements. 
The guidance will not be binding on any entity or on the Department; it 
will assist in evaluations of individual State or local codes and may 
serve as a basis for establishing priorities for consideration of 
individual codes. The Department anticipates that this approach will 
foster further cooperation among various government levels, the private 
entities developing standards, and individuals with disabilities.



PART 37--PROCEDURES FOR COORDINATING THE INVESTIGATION OF COMPLAINTS OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON DISABILITY SUBJECT TO THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE REHABILITATION ACT OF 1973--Table of Contents





Sec.
37.1  Purpose and application.
37.2  Definitions.
37.3  Exchange of information.
37.4  Confidentiality.
37.5  Date of receipt.
37.6  Processing of complaints of employment discrimination filed with 
          an agency other than the EEOC.
37.7  Processing of charges of employment discrimination filed with the 
          EEOC.
37.8  Processing of complaints or charges of employment discrimination 
          filed with both the EEOC and a section 504 agency.
37.9  Processing of complaints or charges of employment discrimination 
          filed with a designated agency and either a section 504 
          agency, the EEOC, or both.
37.10  Section 504 agency review of deferred complaints.
37.11  EEOC review of deferred charges.
37.12  Standards.
37.13  Agency specific memoranda of understanding.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 794 (d); 42 
U.S.C. 12117(b); 28 CFR 0.50(l).

    Source: Order No. 1899-94, 59 FR 39904, 39908, Aug. 4, 1994, unless 
otherwise noted.



Sec. 37.1  Purpose and application.

    (a) This part establishes the procedures to be followed by the 
Federal agencies responsible for processing and resolving complaints or 
charges of employment discrimination filed against recipients of Federal 
financial assistance when jurisdiction exists under both section 504 and 
title I.
    (b) This part also repeats the provisions established by 28 CFR 
35.171 for determining which Federal agency shall process and resolve 
complaints or charges of employment discrimination:
    (1) That fall within the overlapping jurisdiction of titles I and II 
(but are not covered by section 504); and
    (2) That are covered by title II, but not title I (whether or not 
they are also covered by section 504).
    (c) This part also describes the procedures to be followed when a 
complaint or charge arising solely under section 504 or title I is filed 
with a section 504 agency or the EEOC.
    (d) This part does not apply to complaints or charges against 
Federal contractors under section 503 of the Rehabilitation Act.
    (e) This part does not create rights in any person or confer agency 
jurisdiction not created or conferred by the ADA or section 504 over any 
complaint or charge.



Sec. 37.2  Definitions.

    As used in this part, the term:
    Americans with Disabilities Act of 1990 or ADA means the Americans 
with Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 
12101-12213 and 47 U.S.C. 225 and 611).
    Assistant Attorney General refers to the Assistant Attorney General, 
Civil

[[Page 670]]

Rights Division, United States Department of Justice, or his or her 
designee.
    Chairman of the Equal Employment Opportunity Commission refers to 
the Chairman of the United States Equal Employment Opportunity 
Commission, or his or her designee.
    Civil Rights Division means the Civil Rights Division of the United 
States Department of Justice.
    Designated agency means any one of the eight agencies designated 
under Sec. 35.190 of 28 CFR part 35 (the Department's title II 
regulation) to implement and enforce title II of the ADA with respect to 
the functional areas within their jurisdiction.
    Dual-filed complaint or charge means a complaint or charge of 
employment discrimination that:
    (1) Arises under both section 504 and title I;
    (2) Has been filed with both a section 504 agency that has 
jurisdiction under section 504 and with the EEOC, which has jurisdiction 
under title I; and
    (3) Alleges the same facts and raises the same issues in both 
filings.
    Due weight shall mean, with respect to the weight a section 504 
agency or the EEOC shall give to the other agency's findings and 
conclusions, such full and careful consideration as is appropriate, 
taking into account such factors as:
    (1) The extent to which the underlying investigation is complete and 
the evidence is supportive of the findings and conclusions;
    (2) The nature and results of any subsequent proceedings;
    (3) The extent to which the findings, conclusions and any actions 
taken:
    (i) Under title I are consistent with the effective enforcement of 
section 504; or
    (ii) Under section 504 are consistent with the effective enforcement 
of title I; and
    (4) The section 504 agency's responsibilities under section 504 or 
the EEOC's responsibilities under title I.
    Equal Employment Opportunity Commission or EEOC refers to the United 
States Equal Employment Opportunity Commission, and, when appropriate, 
to any of its headquarters, district, area, local, or field offices.
    Federal financial assistance shall have the meaning, with respect to 
each section 504 agency, as defined in such agency's regulations 
implementing section 504 for Federally- assisted programs.
    Program or activity shall have the meaning defined in the 
Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 
794), as amended.
    Public entity means:
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act, 45 U.S.C. 502(8)).
    Recipient means any State, political subdivision of any State, or 
instrumentality of any State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assignee, or transferee thereof, but such term 
does not include any ultimate beneficiary under such program.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
    Section 504 agency means any Federal department or agency that 
extends Federal financial assistance to programs or activities of 
recipients.
    Title I means title I of the ADA.
    Title II means subtitle A of title II of the ADA.



Sec. 37.3  Exchange of information.

    The EEOC, section 504 agencies, and designated agencies shall share 
any information relating to the employment policies and practices of a 
respondent that may assist each agency in carrying out its 
responsibilities, to the extent permissible by law. Such information 
shall include, but is not limited to, complaints, charges, investigative 
files, compliance review reports and files, affirmative action programs, 
and annual employment reports.

[[Page 671]]



Sec. 37.4  Confidentiality.

    (a) When a section 504 agency or a designated agency receives 
information obtained by the EEOC, such agency shall observe the 
confidentiality requirements of section 706(b) and section 709(e) of the 
Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-5(b) and 2000e-
8(e)), as incorporated by section 107(a) of the ADA, to the same extent 
as these provisions would bind the EEOC, except when the agency receives 
the same information from a source independent of the EEOC. Agency 
questions concerning the confidentiality requirements of title I shall 
be directed to the Associate Legal Counsel for Legal Services, Office of 
Legal Counsel, the EEOC.
    (b) When the EEOC receives information from a section 504 or a 
designated agency, the EEOC shall observe any confidentiality 
requirements applicable to that information.



Sec. 37.5  Date of receipt.

    A complaint or charge of employment discrimination is deemed to be 
filed, for purposes of determining timeliness, on the date the complaint 
or charge is first received by a Federal agency with section 504 or ADA 
jurisdiction, regardless of whether it is subsequently transferred to 
another agency for processing.



Sec. 37.6  Processing of complaints of employment discrimination filed with an agency other than the EEOC.

    (a) Agency determination of jurisdiction. Upon receipt of a 
complaint of employment discrimination, an agency other than the EEOC 
shall:
    (1) Determine whether it has jurisdiction over the complaint under 
section 504 or under title II of the ADA; and
    (2) Determine whether the EEOC may have jurisdiction over the 
complaint under title I of the ADA.
    (b) Referral to the Civil Rights Division. If the agency determines 
that it does not have jurisdiction under section 504 or title II, and 
determines that the EEOC does not have jurisdiction under title I, the 
agency shall promptly refer the complaint to the Civil Rights Division. 
The Civil Rights Division shall determine if another Federal agency may 
have jurisdiction over the complaint under section 504 or title II, and, 
if so, shall promptly refer the complaint to a section 504 or a 
designated agency with jurisdiction over the complaint.
    (c) Referral to the EEOC--(1) Referral by an agency without 
jurisdiction. If an agency determines that it does not have jurisdiction 
over a complaint of employment discrimination under either section 504 
or title II and determines that the EEOC may have jurisdiction under 
title I, the agency shall promptly refer the complaint to the EEOC for 
investigation and processing under title I of the ADA.
    (2) Referral by a section 504 agency. (i) A section 504 agency that 
otherwise has jurisdiction over a complaint of employment discrimination 
under section 504 shall promptly refer to the EEOC, for investigation 
and processing under title I of the ADA, any complaint of employment 
discrimination that solely alleges discrimination against an individual 
(and that does not allege discrimination in both employment and in other 
practices or services of the respondent or a pattern or practice of 
employment discrimination), unless:
    (A) The section 504 agency determines that the EEOC does not have 
jurisdiction over the complaint under title I; or
    (B) The EEOC has jurisdiction over the complaint under title I, but 
the complainant, either independently, or following receipt of the 
notification letter required to be sent to the complainant pursuant to 
paragraph (c)(2)(ii) of this section, specifically requests that the 
complaint be investigated by the section 504 agency.
    (ii) Prior to referring an individual complaint of employment 
discrimination to the EEOC pursuant to paragraph (c)(2)(i) of this 
section (but not prior to making such a referral pursuant to paragraph 
(c)(1) of this section), a section 504 agency that otherwise has 
jurisdiction over the complaint shall promptly notify the complainant, 
in writing, of its intention to make such a referral. The notice letter 
shall:
    (A) Inform the complainant that, unless the agency receives a 
written request from the complainant within twenty days of the date of 
the notice

[[Page 672]]

letter requesting that the agency retain the complaint for 
investigation, the agency will forward the complaint to the EEOC for 
investigation and processing; and
    (B) Describe the basic procedural differences between an 
investigation under section 504 and an investigation under title I, and 
inform the complainant of the potential for differing remedies under 
each statute.
    (3) Referral by a designated agency. A designated agency that does 
not have section 504 jurisdiction over a complaint of employment 
discrimination and that has determined that the EEOC may have 
jurisdiction over the complaint under title I shall promptly refer the 
complaint to the EEOC.
    (4) Processing of complaints referred to the EEOC. (i) A complaint 
referred to the EEOC in accordance with this section by an agency with 
jurisdiction over the complaint under section 504 shall be deemed to be 
a dual-filed complaint under section 504 and title I. When a section 504 
agency with jurisdiction over a complaint refers the complaint to the 
EEOC, the section 504 agency shall defer its processing of the complaint 
pursuant to Sec. --.10, pending resolution by the EEOC.
    (ii) A complaint referred to the EEOC by an agency that has 
jurisdiction over the complaint solely under title II (and not under 
section 504) will be treated as a complaint filed under title I only.
    (iii) Any complaint referred to the EEOC pursuant to this section 
shall be processed by the EEOC under its title I procedures.
    (d) Retention by the agency for investigation--(1) Retention by a 
section 504 agency. A section 504 agency shall retain a complaint for 
investigation when the agency determines that it has jurisdiction over 
the complaint under section 504, and one or more of the following 
conditions are met:
    (i) The EEOC does not have jurisdiction over the complaint under 
title I; or
    (ii) The EEOC has jurisdiction over the complaint, but the 
complainant elects to have the section 504 agency process the complaint 
and the section 504 agency receives a written request from the 
complainant for section 504 agency processing within twenty days of the 
date of the notice letter required to be sent pursuant to paragraph 
(c)(2)(ii) of this section; or
    (iii) The complaint alleges discrimination in both employment and in 
other practices or services of the respondent that are covered by 
section 504; or
    (iv) The complaint alleges a pattern or practice of employment 
discrimination.
    (2) Retention by a designated agency. A designated agency that does 
not have jurisdiction over the complaint under section 504 shall retain 
a complaint for investigation when the agency determines that it has 
jurisdiction over the complaint under title II of the ADA and that the 
EEOC does not have jurisdiction over the complaint under title I.
    (3) Processing of complaints retained by an agency. Any complaint 
retained for investigation and processing by an agency pursuant to 
paragraphs (d)(1) and (d)(2) of this section will be investigated and 
processed under section 504, title II, or both, as applicable, and will 
not be considered to be dual filed under title I.



Sec. 37.7  Processing of charges of employment discrimination filed with the EEOC.

    (a) EEOC determination of jurisdiction. Upon receipt of a charge of 
employment discrimination, the EEOC shall:
    (1) Determine whether it has jurisdiction over the charge under 
title I of the ADA. If it has jurisdiction, except as provided in 
paragraph (b)(2) of this section, the EEOC shall process the charge 
pursuant to title I procedures.
    (2) If the EEOC determines that it does not have jurisdiction under 
title I, the EEOC shall promptly refer the charge to the Civil Rights 
Division. The Civil Rights Division shall determine if a Federal agency 
may have jurisdiction over the charge under section 504 or title II, 
and, if so, shall refer the charge to a section 504 agency or to a 
designated agency with jurisdiction over the complaint.
    (b) Retention by the EEOC for investigation. (1) The EEOC shall 
retain a charge for investigation when it determines that it has 
jurisdiction over the charge under title I.

[[Page 673]]

    (2) Referral to an agency. Any charge retained by the EEOC for 
investigation and processing will be investigated and processed under 
title I only, and will not be deemed dual filed under section 504, 
except that ADA cause charges (as defined in 29 CFR 1601.21) that also 
fall within the jurisdiction of a section 504 agency and that the EEOC 
(or the Civil Rights Division, if such a charge is against a government, 
governmental agency, or political subdivision) has declined to litigate 
shall be referred to the appropriate section 504 agency for review of 
the file and any administrative or other action deemed appropriate under 
section 504. Such charges shall be deemed complaints, dual filed under 
section 504, solely for the purposes of the agency review and action 
described in this paragraph. The date of such dual filing shall be 
deemed to be the date the complaint was received by the EEOC.



Sec. 37.8  Processing of complaints or charges of employment discrimination filed with both the EEOC and a section 504 agency.

    (a) Procedures for handling dual-filed complaints or charges. As 
between the EEOC and a section 504 agency, except as provided in 
paragraph (e) of this section, a complaint or charge of employment 
discrimination that is dual filed with both the EEOC and a section 504 
agency shall be processed as follows:
    (1) EEOC processing. The EEOC shall investigate and process the 
charge when the EEOC determines that it has jurisdiction over the charge 
under title I and the charge solely alleges employment discrimination 
against an individual, unless the charging party elects to have the 
section 504 agency process the charge and the section 504 agency 
receives a written request from the complainant for section 504 agency 
processing within twenty days of the date of the notice letter required 
to be sent pursuant to Sec. 37.6(c)(2)(ii).
    (2) Section 504 agency processing. A section 504 agency shall 
investigate and process the complaint when the agency determines that it 
has jurisdiction over the complaint under section 504, and:
    (i) The complaint alleges discrimination in both employment and in 
other practices or services of the respondent; or
    (ii) The complaint alleges a pattern or practice of discrimination 
in employment; or
    (iii) In the case of a complaint solely alleging employment 
discrimination against an individual, the complainant elects to have a 
section 504 agency process the complaint and the section 504 agency 
receives a written request from the complainant for section 504 agency 
processing within twenty days of the date of the notice letter required 
to be sent pursuant to Sec. 37.6(c)(2)(ii).
    (b) Referral to the Civil Rights Division. If the EEOC determines 
that it does not have jurisdiction under title I, and the section 504 
agency determines that it does not have jurisdiction under section 504 
or title II, the complaint or charge shall be promptly referred to the 
Civil Rights Division. The Civil Rights Division shall determine if 
another Federal agency may have jurisdiction over the complaint under 
section 504 or title II, and, if so, shall promptly refer the complaint 
to a section 504 or a designated agency with jurisdiction over the 
complaint.
    (c) Procedures for determining whether a complaint or charge has 
been dual filed. The EEOC and each agency with jurisdiction to 
investigate and process complaints of employment discrimination under 
section 504 shall jointly develop procedures for determining whether 
complaints or charges of discrimination have been dual filed with the 
EEOC and with one or more other agencies.
    (d) Notification of deferral. The agency required to process a dual-
filed complaint or charge under this section shall notify the 
complainant or charging party and the respondent that the complaint or 
charge was dual filed with one or more other agencies and that such 
other agencies have agreed to defer processing and will take no further 
action except as provided in Sec. 37.10 or Sec. 37.11, as applicable.
    (e) Exceptions. When special circumstances make deferral as provided 
in this section inappropriate, the EEOC, and an agency with 
investigative authority under section 504, may

[[Page 674]]

jointly determine to reallocate investigative responsibilities. Special 
circumstances include, but are not limited to, cases in which the EEOC 
has already commenced its investigation at the time that the agency 
discovers that the complaint or charge is a dual-filed complaint or 
charge in which the complainant has elected section 504 processing, 
alleged discrimination in both employment and in other practices or 
services of the respondent, or alleged a pattern or practice of 
employment discrimination.



Sec. 37.9  Processing of complaints or charges of employment discrimination filed with a designated agency and either a section 504 agency, the EEOC, or both.

    (a) Designated agency processing. A designated agency shall 
investigate and process a complaint that has been filed with it and with 
the EEOC, a section 504 agency, or both, when either of the following 
conditions is met:
    (1) The designated agency determines that it has jurisdiction over 
the complaint under title II and that neither the EEOC nor a section 504 
agency (other than the designated agency, if the designated agency is 
also a section 504 agency) has jurisdiction over the complaint; or
    (2) The designated agency determines that it has jurisdiction over 
the complaint under section 504 and the complaint meets the requirements 
for processing by a section 504 agency set forth in Sec. 37.8(a)(2).
    (b) Referral by a designated agency. A designated agency that has 
jurisdiction over a complaint solely under title II (and not under 
section 504) shall forward a complaint that has been filed with it and 
with the EEOC, a section 504 agency, or both, to either the EEOC or to a 
section 504 agency, as follows:
    (1) If the designated agency determines that the EEOC is the sole 
agency, other than the designated agency, with jurisdiction over the 
complaint, the designated agency shall forward the complaint to the EEOC 
for processing under title I; or
    (2) If the designated agency determines that the section 504 agency 
is the sole agency, other than the designated agency, with jurisdiction 
over the complaint, the designated agency shall forward the complaint to 
the section 504 agency for processing under section 504; or
    (3) If the designated agency determines that both the EEOC and a 
section 504 agency have jurisdiction over the complaint, the designated 
agency shall forward the complaint to the EEOC if it determines that the 
complaint solely alleges employment discrimination against an 
individual, or it shall forward the complaint to the section 504 agency 
if it determines that the complaint meets the requirements for 
processing by a section 504 agency set out in Sec. 37.8(a)(2)(i) or 
(a)(2)(ii).



Sec. 37.10  Section 504 agency review of deferred complaints.

    (a) Deferral by the section 504 agency. When a section 504 agency 
refers a complaint to the EEOC pursuant to Sec. 37.6(c)(2) or when it is 
determined that, as between the EEOC and a section 504 agency, the EEOC 
is the agency that shall process a dual-filed complaint or charge under 
Sec. 37.8(a)(1) or Sec. 37.8(e), the section 504 agency shall defer 
further action until:
    (1) The EEOC issues a no cause finding and a notice of right-to-sue 
pursuant to 29 CFR 1601.19; or
    (2) The EEOC enters into a conciliation agreement; or
    (3) The EEOC issues a cause finding and a notice of failure of 
conciliation pursuant to 29 CFR 1601.21, and:
    (i) If the recipient is not a government, governmental agency, or 
political subdivision, the EEOC completes enforcement proceedings or 
issues a notice of right-to-sue in accordance with 29 CFR 1601.28; or
    (ii) If the recipient is a government, governmental agency, or 
political subdivision, the EEOC refers the charge to the Civil Rights 
Division in accordance with 29 CFR 1601.29, and the Civil Rights 
Division completes enforcement proceedings or issues a notice of right-
to-sue in accordance with 29 CFR 1601.28(d); or
    (4) The EEOC or, when a case has been referred pursuant to 29 CFR 
1601.29, the Civil Rights Division, otherwise resolves the charge.
    (b) Notification of the deferring agency. The EEOC or the Civil 
Rights Division, as appropriate, shall notify the agency

[[Page 675]]

that has deferred processing of the charge upon resolution of any dual-
filed complaint or charge.
    (c) Agency review. After receipt of notification that the EEOC or 
the Civil Rights Division, as appropriate, has resolved the complaint or 
charge, the agency shall promptly determine what further action by the 
agency is warranted. In reaching that determination, the agency shall 
give due weight to the findings and conclusions of the EEOC and to those 
of the Civil Rights Division, as applicable. If the agency proposes to 
take an action inconsistent with the EEOC's or the Civil Rights 
Division's findings and conclusions as to whether a violation has 
occurred, the agency shall notify in writing the Assistant Attorney 
General, the Chairman of the EEOC, and the head of the EEOC office that 
processed the complaint. In the written notification, the agency shall 
state the action that it proposes to take and the basis of its decision 
to take such action.
    (d) Provision of information. Upon written request, the EEOC or the 
Civil Rights Division shall provide the section 504 agency with any 
materials relating to its resolution of the charge, including its 
findings and conclusions, investigative reports and files, and any 
conciliation agreement.



Sec. 37.11  EEOC review of deferred charges.

    (a) Deferral by the EEOC. When it is determined that a section 504 
agency is the agency that shall process a dual-filed complaint or charge 
under Sec. 37.8(a)(2) or Sec. 37.8(e), the EEOC shall defer further 
action until the section 504 agency takes one of the following actions:
    (1) Makes a finding that a violation has not occurred;
    (2) Enters into a voluntary compliance agreement;
    (3) Following a finding that a violation has occurred, refers the 
complaint to the Civil Rights Division for judicial enforcement and the 
Civil Rights Division resolves the complaint;
    (4) Following a finding that a violation has occurred, resolves the 
complaint through final administrative enforcement action; or
    (5) Otherwise resolves the charge.
    (b) Notification of the EEOC. The section 504 agency shall notify 
the EEOC upon resolution of any dual-filed complaint or charge.
    (c) Agency review. After receipt of notification that the section 
504 agency has resolved the complaint, the EEOC shall promptly determine 
what further action by the EEOC is warranted. In reaching that 
determination, the EEOC shall give due weight to the section 504 
agency's findings and conclusions. If the EEOC proposes to take an 
action inconsistent with the section 504 agency's findings and 
conclusions as to whether a violation has occurred, the EEOC shall 
notify in writing the Assistant Attorney General, the Chairman of the 
EEOC, and the head of the section 504 agency that processed the 
complaint. In the written notification, the EEOC shall state the action 
that it proposes to take and the basis of its decision to take such 
action.
    (d) Provision of information. Upon written request, the section 504 
agency shall provide the EEOC with any materials relating to its 
resolution of the complaint, including its conclusions, investigative 
reports and files, and any voluntary compliance agreement.



Sec. 37.12  Standards.

    In any investigation, compliance review, hearing or other 
proceeding, the standards used to determine whether section 504 has been 
violated in a complaint alleging employment discrimination shall be the 
standards applied under title I of the ADA and the provisions of 
sections 501 through 504, and 510, of the ADA, as such sections relate 
to employment. Section 504 agencies shall consider the regulations and 
appendix implementing title I of the ADA, set forth at 29 CFR part 1630, 
and case law arising under such regulations, in determining whether a 
recipient of Federal financial assistance has engaged in an unlawful 
employment practice.



Sec. 37.13  Agency specific memoranda of understanding.

    When a section 504 agency amends its regulations to make them 
consistent with title I of the ADA, the EEOC and the individual section 
504 agency may elect to enter into a memorandum of

[[Page 676]]

understanding providing for the investigation and processing of 
complaints dual filed under both section 504 and title I of the ADA by 
the section 504 agency.



PART 39--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF JUSTICE--Table of Contents




Sec.
39.101  Purpose.
39.102  Application.
39.103  Definitions.
39.104--39.109  [Reserved]
39.110  Self-evaluation.
39.111  Notice.
39.112--39.129  [Reserved]
39.130  General prohibitions against discrimination.
39.131--39.139  [Reserved]
39.140  Employment.
39.141--39.148  [Reserved]
39.149  Program accessibility: Discrimination prohibited.
39.150  Program accessibility: Existing facilities.
39.151  Program accessibility: New construction and alterations.
39.152--39.159  [Reserved]
39.160  Communications.
39.161--39.169  [Reserved]
39.170  Compliance procedures.

    Authority: 29 U.S.C. 794.

    Source: Order No. 1065-84, 49 FR 35734, Sept. 11, 1984, unless 
otherwise noted.



Sec. 39.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the U.S. Postal Service.



Sec. 39.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 39.103  Definitions.

    For purposes of this part, the term--
    Agency means the Department of Justice.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, U.S. Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complaint Adjudication Officer means the Complaint Adjudication 
Officer appointed by the Assistant Attorney General for Civil Rights.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitorurinary; hemic and lymphatic; skin; and endocrine; or

[[Page 677]]

    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Official or Responsible Official means the Director of Equal 
Employment Opportunity for the Department of Justice or his or her 
designee.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    Respondent means the organizational unit in which a complainant 
alleges that discrimination occurred.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
Secs. 39.104--39.109  [Reserved]



Sec. 39.110  Self-evaluation.

    (a) The agency shall, by October 11, 1985, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until October 11, 1987, maintain on file and 
make available for public inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 39.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the program or activities conducted by the agency, and make such 
information available to them in such

[[Page 678]]

manner as the Attorney General finds necessary to apprise such persons 
of the protections against discrimination assured them by section 504 
and this regulation.
Secs. 39.112--39.129  [Reserved]



Sec. 39.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.

[[Page 679]]

    (d) The agency shall administer programs and activites in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
Secs. 39.131--39.139  [Reserved]



Sec. 39.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.
Secs. 39.141--39.148  [Reserved]



Sec. 39.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 39.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 39.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 39.150(a) would result in such 
alterations or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Attorney General or his 
or her designee after considering all agency resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by December 10, 1984, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by October 11, 1987, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be

[[Page 680]]

undertaken to achieve program accessibility, the agency shall develop, 
by April 11, 1985, a transition plan setting forth the steps necessary 
to complete such changes. The agency shall provide an opportunity to 
interested persons, including handicapped persons or organizations 
representing handicapped persons, to participate in the development of 
the transition by submitting comments (both oral and written). A copy of 
the tansition plan shall be made available for public inspection. The 
plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 39.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.
Secs. 39.152--39.159  [Reserved]



Sec. 39.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 39.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the Attorney General or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons

[[Page 681]]

receive the benefits and services of the program or activity.
Secs. 39.161--39.169  [Reserved]



Sec. 39.170  Compliance procedures.

    (a) Applicability. Except as provided in paragraph (b) of this 
section, this section applies to all allegations of discrimination on 
the basis of handicap in programs or activities conducted by the agency.
    (b) Employment complaints. The agency shall process complaints 
alleging violations of section 504 with respect to employment according 
to the procedures established by the Equal Employment Opportunity 
Commission in 29 CFR part 1613 pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) Responsible Official. The Responsible Official shall coordinate 
implementation of this section.
    (d) Filing a complaint--(1) Who may file. (i) Any person who 
believes that he or she has been subjected to discrimination prohibited 
by this part may by him or herself or by his or her authorized 
representative file a complaint with the Official. Any person who 
believes that any specific class of persons has been subjected to 
discrimination prohibited by this part and who is a member of that class 
or the authorized representative of a member of that class may file a 
complaint with the Official.
    (ii) Before filing a complaint under this section, an inmate of a 
Federal penal institution must exhaust the Bureau of Prisons 
Administrative Remedy Procedure as set forth in 28 CFR part 542.
    (2) Confidentiality. The Official shall hold in confidence the 
identity of any person submitting a complaint, unless the person submits 
written authorization otherwise, and except to the extent necessary to 
carry out the purposes of this part, including the conduct of any 
investigation, hearing, or proceeding under this part.
    (3) When to file. Complaints shall be filed within 180 days of the 
alleged act of discrimination, except that complaints by inmates of 
Federal penal institutions shall be filed within 180 days of the final 
administrative decision of the Bureau of Prisons under 28 CFR part 542. 
The Official may extend this time limit for good cause shown. For 
purposes of determining when a complaint is timely filed under this 
subparagraph, a complaint mailed to the agency shall be deemed filed on 
the date it is postmarked. Any other complaint shall be deemed filed on 
the date it is received by the agency.
    (4) How to file. Complaints may be delivered or mailed to the 
Attorney General, the Responsible Official, or agency officials. 
Complaints should be sent to the Director for Equal Employment 
Opportunity, U.S. Department of Justice, 10th and Pennsylvania Avenue, 
NW., Room 1232, Washington, DC 20530. If any agency official other than 
the Official receives a complaint, he or she shall forward the complaint 
to the Official immediately.
    (e) Notification to the Architectural and Transportation Barriers 
Compliance Board. The agency shall promptly send to the Architectural 
and Transportation Barriers Compliance Board a copy of any complaint 
alleging that a building or facility that is subject to the 
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or 
section 502 of the Rehabilitation Act, as amended (29 U.S.C. 792), is 
not readily accessible to and usable by handicapped persons. The agency 
shall delete the identity of the complainant from the copy of the 
complaint.
    (f) Acceptance of complaint. (1) The Official shall accept a 
complete complaint that is filed in accordance with paragraph (d) of 
this section and over which the agency has jurisdiction. The Official 
shall notify the complainant and the respondent of receipt and 
acceptance of the complaint.
    (2) If the Official receives a complaint that is not complete, he or 
she shall notify the complainant, within 30 days of receipt of the 
incomplete complaint, that additional information is needed. If the 
complainant fails to complete the complaint within 30 days of receipt of 
this notice, the Official shall dismiss the complaint without prejudice.
    (3) If the Official receives a complaint over which the agency does 
not have jurisdiction, the Official shall promptly notify the 
complainant and

[[Page 682]]

shall make reasonable efforts to refer the complaint to the appropriate 
Government entity.
    (g) Investigation/conciliation. (1) Within 180 days of the receipt 
of a complete complaint, the Official shall complete the investigation 
of the complaint, attempt informal resolution, and, if no informal 
resolution is achieved, issue a letter of findings.
    (2) The Official may require agency employees to cooperate in the 
investigation and attempted resolution of complaints. Employees who are 
required by the Official to participate in any investigation under this 
section shall do so as part of their official duties and during the 
course of regular duty hours.
    (3) The Official shall furnish the complainant and the respondent a 
copy of the investigative report promptly after receiving it from the 
investigator and provide the complainant and respondent with an 
opportunity for informal resolution of the complaint.
    (4) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made part of the complaint 
file, with a copy of the agreement provided to the complainant and 
respondent. The written agreement may include a finding on the issue of 
discrimination and shall describe any corrective action to which the 
complainant and respondent have agreed.
    (h) Letter of findings. If an informal resolution of the complaint 
is not reached, the Official shall, within 180 days of receipt of the 
complete complaint, notify the complainant and the respondent of the 
results of the investigation in a letter sent by certified mail, return 
receipt requested, containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right of the complainant and respondent to 
appeal to the Complaint Adjudication Officer; and
    (4) A notice of the right of the complainant and respondent to 
request a hearing.
    (i) Filing an appeal. (1) Notice of appeal to the Complaint 
Adjudication Officer, with or without a request for hearing, shall be 
filed by the complainant or the respondent with the Responsible Official 
within 30 days of receipt from the Official of the letter required by 
paragraph (h) of this section.
    (2) If a timely appeal without a request for hearing is filed by a 
party, any other party may file a written request for hearing within the 
time limit specified in paragraph (i)(1) of this section or within 10 
days of the date on which the first timely appeal without a request for 
hearing was filed, whichever is later.
    (3) If no party requests a hearing, the Responsible Official shall 
promptly transmit the notice of appeal and investigative record to the 
Complaint Adjudication Officer.
    (4) If neither party files an appeal within the time prescribed in 
paragraph (i)(1) of this section, the Responsible Official shall certify 
that the letter of findings is the final agency decision on the 
complaint at the expiration of that time.
    (j) Acceptance of appeal. The Responsible Official shall accept and 
process any timely appeal. A party may appeal to the Complaint 
Adjudication Officer from a decision of the Official that an appeal is 
untimely. This appeal shall be filed within 15 days of receipt of the 
decision from the Official.
    (k) Hearing. (1) Upon a timely request for a hearing, the 
Responsible Official shall appoint an administrative law judge to 
conduct the hearing. The administrative law judge shall issue a notice 
to all parties specifying the date, time, and place of the scheduled 
hearing. The hearing shall be commenced no earlier than 15 days after 
the notice is issued and no later than 60 days after the request for a 
hearing is filed, unless all parties agree to a different date.
    (2) The complainant and respondent shall be parties to the hearing. 
Any interested person or organization may petition to become a party or 
amicus curiae. The administrative law judge may, in his or her 
discretion, grant such a petition if, in his or her opinion, the 
petitioner has a legitimate interest in the proceedings and the 
participation will not unduly delay the outcome and may contribute 
materially to the proper disposition of the proceedings.

[[Page 683]]

    (3) The hearing, decision, and any administrative review thereof 
shall be conducted in conformity with 5 U.S.C. 554-557 (sections 5-8 of 
the Administrative Procedure Act). The administrative law judge shall 
have the duty to conduct a fair hearing, to take all necessary action to 
avoid delay, and to maintain order. He or she shall have all powers 
necessary to these ends, including (but not limited to) the power to--
    (i) Arrange and change the date, time, and place of hearings and 
prehearing conferences and issue notice thereof;
    (ii) Hold conferences to settle, simplify, or determine the issues 
in a hearing, or to consider other matters that may aid in the 
expeditious disposition of the hearing;
    (iii) Require parties to state their position in writing with 
respect to the various issues in the hearing and to exchange such 
statements with all other parties;
    (iv) Examine witnesses and direct witnesses to testify;
    (v) Receive, rule on, exclude, or limit evidence;
    (vi) Rule on procedural items pending before him or her; and
    (vii) Take any action permitted to the administrative law judge as 
authorized by this part or by the provisions of the Administrative 
Procedure Act (5 U.S.C. 551-559).
    (4) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this paragraph, but rules or principles designed 
to assure production of credible evidence and to subject testimony to 
cross-examination shall be applied by the administrative law judge 
whenever reasonably necessary. The administrative law judge may exclude 
irrelevant, immaterial, or unduly repetitious evidence. All documents 
and other evidence offered or taken for the record shall be open to 
examination by the parties, and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent the substance 
thereof is stipulated for the record. All decisions shall be based upon 
the hearing record.
    (5) The costs and expenses for the conduct of a hearing shall be 
allocated as follows:
    (i) Persons employed by the agency, shall, upon request to the 
agency by the administrative law judge, be made available to participate 
in the hearing and shall be on official duty status for this purpose. 
They shall not receive witness fees.
    (ii) Employees of other Federal agencies called to testify at a 
hearing shall, at the request of the administrative law judge and with 
the approval of the employing agency, be on official duty status during 
any period of absence from normal duties caused by their testimony, and 
shall not receive witness fees.
    (iii) The fees and expenses of other persons called to testify at a 
hearing shall be paid by the party requesting their appearance.
    (iv) The administrative law judge may require the agency to pay 
travel expenses necessary for the complainant to attend the hearing.
    (v) The respondent shall pay the required expenses and charges for 
the administrative law judge and court reporter.
    (vi) All other expenses shall be paid by the party, the intervening 
party, or amicus curiae incurring them.
    (6) The administrative law judge shall submit in writing recommended 
findings of fact, conclusions of law, and remedies to all parties and 
the Complaint Adjudication Officer within 30 days after receipt of the 
hearing transcripts, or within 30 days after the conclusion of the 
hearing if no transcript is made. This time limit may be extended with 
the permission of the Complaint Adjudication Officer.
    (7) Within 15 days after receipt of the recommended decision of the 
administrative law judge, any party may file exceptions to the decision 
with the Complaint Adjudication Officer. Thereafter, each party will 
have ten days to file reply exceptions with the Officer.
    (l) Decision. (1) The Complaint Adjudication Officer shall make the 
decision of the agency based on information in the investigative record 
and, if a hearing is held, on the hearing record. The decision shall be 
made

[[Page 684]]

within 60 days of receipt of the transmittal of the notice of appeal and 
investigative record pursuant to Sec. 39.170(i)(3) or after the period 
for filing exceptions ends, whichever is applicable. If the Complaint 
Adjudication Officer determines that he or she needs additional 
information from any party, he or she shall request the information and 
provide the other party or parties an opportunity to respond to that 
information. The Complaint Adjudication Officer shall have 60 days from 
receipt of the additional information to render the decision on the 
appeal. The Complaint Adjudication Officer shall transmit his or her 
decision by letter to the parties. The decision shall set forth the 
findings, remedial action required, and reasons for the decision. If the 
decision is based on a hearing record, the Complaint Adjudication 
Officer shall consider the recommended decision of the administrative 
law judge and render a final decision based on the entire record. The 
Complaint Adjudication Officer may also remand the hearing record to the 
administrative law judge for a fuller development of the record.
    (2) Any respondent required to take action under the terms of the 
decision of the agency shall do so promptly. The Official may require 
periodic compliance reports specifying--
    (i) The manner in which compliance with the provisions of the 
decision has been achieved;
    (ii) The reasons any action required by the final decision has not 
yet been taken; and
    (iii) The steps being taken to ensure full compliance.

The Complaint Adjudication Officer may retain responsibility for 
resolving disagreements that arise between the parties over 
interpretation of the final agency decision, or for specific 
adjudicatory decisions arising out of implementation.

    Editorial Note: For the convenience of the user, the ``Supplementary 
Information'' portion of the document published at 49 FR 35724, Sept. 
11, 1984, is set forth below:

SUPPLEMENTARY INFORMATION: On December 16, 1983, the Department of 
Justice published a Notice of Proposed Rulemaking (NPRM) for the 
enforcement of section 504 of the Rehabilitation Act of 1973, as 
amended, which prohibits discrimination on the basis of handicap, as it 
applies to programs and activities conducted by the Department of 
Justice. 48 FR 55996. Shortly after the NPRM was published, the 
Department received a number of preliminary comments from handicapped 
individuals and from organizations representing handicapped individuals. 
The tone and nature of these comments indicated to the Department that 
some of the regulatory provisions of the NPRM were being misunderstood. 
As a result, the Department, on March 1, 1984, published a Supplementary 
Notice further explaining the NPRM and requesting comments on possible 
revisions to the original NPRM. 49 FR 7792.
    By April 16, 1984, close of the comment period, the Department 
received 1,194 comments. Two hundred and six of these comments also 
addressed the supplemental notice. Over 90% of the comments that the 
Department received came from individuals (908), most frequently 
handicapped persons, and from organizations representing the interests 
of handicapped persons (180). The Department received comments from all 
fifty states, the District of Columbia, Puerto Rico, Canada, and 
Denmark. Most of the comments that the Department received were general 
in nature. The Department received 721 comments based on a form letter. 
This form letter, written before issuance of the Supplemental Notice, 
expressed dismay at the inclusion of the regulation's ``undue financial 
and administrative burdens'' language, asserted that the Department was 
imposing a lesser requirement on the Federal government than on 
recipients of Federal assistance, and requested that the regulation be 
withdrawn. This form letter did not contain any substantive or detailed 
analysis. In fact, only 55 of the 1,194 comments contained specific, 
detailed analysis of the Department's proposal.
    The Department read and analyzed each comment. Each comment was then 
subdivided according to one or more of over 90 issue categories. Because 
comments often addressed, even in general terms, more than one issue, 
the 1,194 comments were translated into 4,256 issue-specific comments. 
The decisions that the Department made in response to these comments, 
however, were not made on the basis of the number of commenters 
addressing any one point but on a

[[Page 685]]

thorough consideration of the merits of the points of view expressed in 
the comments. Copies of the written comments will remain available for 
public inspection in Room 854 of the HOLC Building, 320 First Street, 
NW., Washington, DC from 9:00 a.m. to 5:30 p.m., Monday through Friday, 
except for legal holidays, until November 13, 1984.
    Section 504 requires that regulations that apply to the programs and 
activities of Federal executive agencies shall be submitted to the 
appropriate authorizing committees of Congress and that such regulations 
may take effect no earlier than the thirtieth day after they have been 
so submitted. The Department has today submitted this regulation to the 
Senate Committee on Labor and Human Resources and its Subcommittee on 
the Handicapped and the House Committee on Education and Labor and its 
Subcommittee on Select Education pursuant to the terms of section 504. 
The regulation will become effective on October 11, 1984.
    This rule applies to all programs and activities conducted by the 
Department of Justice. Thus, this rule regulates the activities of over 
30 separate subunits in the Department, including, for example, the 
Federal Bureau of Investigation, the Drug Enforcement Administration, 
the Immigration and Naturalization Service, the Bureau of Prisons, 
Federal Prison Industries, and the United States Attorneys.

                               Background

    The purpose of this rule is to provide for the enforcement of 
section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 
794), as it applies to programs and activities conducted by the 
Department of Justice (DOJ). As amended by the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978 (Sec. 119, Pub. L. 95-602, 92 Stat. 2982), section 504 of the 
Rehabilitation Act of 1973 states that:

    No otherwise qualified handicapped individual in the United States, 
. . . shall, solely by reason of his handicap, be excluded from the 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance or under any program or activity conducted by any Executive 
agency or by the United States Postal Service. The head of each such 
agency shall promulgate such regulations as may be necessary to carry 
out the amendments to this section made by the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Act of 1978. 
Copies of any proposed regulation shall be submitted to appropriate 
authorizing committees of the Congress, and such regulation may take 
effect no earlier than the thirtieth day after the date on which such 
regulation is so submitted to such committees.

(29 U.S.C. 794) (amendment italicized).

    The substantive nondiscrimination obligations of the agency, as set 
forth in this rule, are identical, for the most part, to those 
established by Federal regulations for programs or activities receiving 
Federal financial assistance. See 28 CFR part 41 (section 504 
coordination regulation for federally assisted programs). This general 
parallelism is in accord with the intent expressed by supporters of the 
1978 amendment in floor debate, including its sponsor, Rep. James M. 
Jeffords, that the Federal government should have the same section 504 
obligations as recipients of Federal financial assistance. 124 Cong. 
Rec. 13,901 (1978) (remarks of Rep. Jeffords); 124 Cong. Rec. E2668, 
E2670 (daily ed. May 17, 1984) id., 124 Cong. Rec. 13,897 (remarks of 
Rep. Brademas); id.  at 38,552 (remarks of Rep. Sarasin).
    Nine hundred and two comments that the Department received agreed 
that the obligations of section 504 for federally conducted programs 
should be identical to those developed by the Federal agencies over the 
past seven years for federally assisted programs. These commenters, 
however, objected to any language differences between the Department's 
proposed rule for federally conducted programs and the Department's 
section 504 coordination regulation for federally assisted programs (28 
CFR part 41). The commenters asserted that a number of language 
differences that the Department had proposed created less stringent 
standards for the Federal government than those applied to recipients of 
Federal assistance under section 504. They wrote that such a result 
could not be justified by Executive Order 12250, by the wording of the 
statute itself, nor by the legislative history of the 1978 amendments.
    The commenters appear to have misunderstood the basis for inclusion 
of the new language in the DOJ regulation. The changes in this 
regulation are based on the Supreme Court's decision in Southeastern 
Community College v. Davis, 442 U.S. 397 (1979), and the subsequent 
circuit court decisions interpreting Davis and section 504. See Dopico 
v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982); American Public Transit 
Association v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981) (APTA); see also 
Rhode Island Handicapped Action Committee v. Rhode Island Public Transit 
Authority, 718 F.2d 490 (1st Cir. 1983).
    Some commenters questioned the use of Davis as justification for the 
inclusion of the new provisions in the federally conducted regulation. 
They noted that the Department had not included these changes when, 
subsequent to the Davis decision, it issued a regulation implementing 
section 504 in programs receiving Federal financial assistance from this 
Department. The Department's section 504 federally assisted regulation, 
however, was issued prior to the D.C. circuit's decision in APTA. In 
APTA, the Department had argued a position similar to that advocated by

[[Page 686]]

the commenters. Judge Abner Mikva's decision in APTA clearly rejected 
the Department's position in that case. Other circuit court decisions 
followed the APTA interpretation of Davis. Since these decisions, the 
Department has interpreted its section 504 regulation for federally 
assisted programs in a manner consistent with the language of this final 
rule. The Department believes that judicial interpretation of section 
504 compels it to incorporate the new language in the federally 
conducted regulation.
    Incorporation of these changes, therefore, makes this section 504 
federally conducted regulation consistent with the Federal government's 
section 504 federally assisted regulations. Because many of these 
federally assisted regulations were issued prior to the judicial 
interpretations of Davis and its progeny, their language does not 
reflect the interpretation of section 504 provided by the Supreme Court 
and by the various circuit courts. Of course, these federally assisted 
regulations must be interpreted to reflect the holdings of the Federal 
judiciary. Hence the Department believes that there are no significant 
differences between this final rule for federally conducted programs and 
the Federal government's interpretation of section 504 regulations for 
federally assisted programs.
    This regulation has been reviewed by the Equal Employment 
Opportunity Commission under Executive Order 12067 (43 FR 28967, 3 CFR, 
1978 Comp., p. 206). It is not a major rule within the meaning of 
Executive Order 12291 (46 FR 13193, 3 CFR, 1981 Comp., p. 127) and, 
therefore, a regulatory impact analysis has not been prepared. This 
regulation does not have an impact on small entities. It is not, 
therefore, subject to the Regulatory Flexibility Act (5 U.S.C. 601-612).

          Section-by-Section Analysis and Response To Comments

                         Section 39.101  Purpose

    Section 39.101 states the purpose of the rule, which is to 
effectuate section 119 of the Rehabilitation, Comprehensive Services, 
and Developmental Disabilities Amendments of 1978, which amended section 
504 of the Rehabilitation Act of 1973 to prohibit discrimination on the 
basis of handicap in programs or activities conducted by Executive 
agencies or the United States Postal Service.
    The Department received no comments on this section and it remains 
unchanged from the Department's proposed rule.

                       Section 39.102  Application

    The regulation applies to all programs or activities conducted by 
the Department of Justice. Under this section, a federally conducted 
program or activity is, in simple terms, anything a Federal agency does. 
Aside from employment, there are two major categories of federally 
conducted programs or activities covered by this regulation: those 
involving general public contact as part of ongoing agency operations 
and those directly administered by the Department for program 
beneficiaries and participants. Activities in the first part include 
communication with the public (telephone contacts, office walk-ins, or 
interviews) and the public's use of the Department's facilities 
(cafeteria, library). Activities in the second category include programs 
that provide Federal services or benefits (immigration activities, 
operation of the Federal prison system). No comments were received on 
this section.

                       Section 39.103  Definitions

    The Department received 469 comments on the definitions section. 
Most of the comment, however, concentrated on the definition of 
``qualified handicapped person.''
    ``Agency'' is defined as the Department of Justice.
    ``Assistant Attorney General.'' ``Assistant Attorney General'' 
refers to the Assistant Attorney General, Civil Rights Division, United 
States Department of Justice.
    ``Auxiliary aids.'' ``Auxiliary aids'' means services or devices 
that enable persons with impaired sensory, manual, or speaking skills to 
have an equal opportunity to participate in and enjoy the benefits of 
the agency's programs or activities. The definition provides examples of 
commonly used auxiliary aids. Auxiliary aids are addressed in 
Sec. 39.160(a)(1). Comments on the definition of ``auxiliary aids'' are 
discussed in connection with that section.
    ``Complete complaint.'' ``Complete complaint'' is defined to include 
all the information necessary to enable the agency to investigate the 
complaint. The definition is necessary, because the 180 day period for 
the agency's investigation (see Sec. 39.170(g)) begins when it receives 
a complete complaint.
    ``Facility.'' The definition of ``facility'' is similar to that in 
the section 504 coordination regulation for federally assisted programs, 
28 CFR 41.3(f), except that the term ``rolling stock or other 
conveyances'' has been added and the phrase ``or interest in such 
property'' has been deleted.
    Twenty commenters on the NPRM objected to the omission of the phrase 
``or interest in such property'' from the definition of ``facility.'' As 
explained in the Supplemental Notice, the term ``facility,'' as used in 
this regulation, refers to structures, and does not include intangible 
property rights. The definition, therefore, has no effect on the scope 
of coverage of programs, including those conducted in facilities not 
included in the definition. The phrase has been omitted because the 
requirement that facilities be accessible would be a logical absurdity 
if applied to a lease, life estate, mortgage, or

[[Page 687]]

other intangible property interest. The regulation applies to all 
programs and activities conducted by the agency regardless of whether 
the facility in which they are conducted is owned, leased, or used on 
some other basis by the agency. Sixty commenters supported the 
clarification of this issue in the Supplemental Notice.
    ``Handicapped person.'' The definition of ``handicapped person'' has 
been revised to make it identical to the definition appearing in the 
section 504 coordination regulation for federally assisted programs (28 
CFR 41.31). In its NPRM, the Department omitted the list of physical or 
mental impairments included in the definition of ``handicapped 
persons.'' The Department received 19 negative comments on this 
omission, and, in the Supplemental Notice, requested comments on whether 
it should be re-inserted. On the basis of the comments received, we have 
included the list in the final rule.
    ``Qualified handicapped person'' The definition of ``qualified 
handicapped person'' is a revised version of the definition appearing in 
the section 504 coordination regulation for federally assisted programs 
(28 CFR 41.32).
    Subparagraph (1) of the definition states that a ``qualified 
handicapped person'' with regard to any program under which a person is 
required to perform services or to achieve a level of accomplishment is 
a handicapped person who can achieve the purpose of the program without 
modifications in the program that the agency can demonstrate would 
result in a fundamental alteration in its nature. This definition is 
based on the Supreme Court's Davis decision.
    In Davis, the Court ruled that a hearing-impaired applicant to a 
nursing school was not a ``qualified handicapped person'' because her 
hearing impairment would prevent her from participating in the clinical 
training portion of the program. The Court found that, if the program 
were modified so as to enable the respondent to participate (by 
exempting her from the clinical training requirements), ``she would not 
receive even a rough equivalent of the training a nursing program 
normally gives.'' 442 U.S. at 410. It also found that ``the purpose of 
[the] program was to train persons who could serve the nursing 
profession in all customary ways,'' id. at 413, and that the respondent 
would be unable, because of her hearing impairment, to perform some 
functions expected of a registered nurse. It therefore concluded that 
the school was not required by section 504 to make such modifications 
that would result in ``a fundamental alteration in the nature of the 
program.'' Id. at 410.
    The Department incorporated the Court's language in the definition 
of ``qualified handicapped person'' in order to make clear that such a 
person must be able to participate in the program offered by the agency. 
The agency is required to make modifications in order to enable a 
handicapped applicant to participate, but is not required to offer a 
program of a fundamentally different nature. The test is whether, with 
appropriate modifications, the applicant can achieve the purpose of the 
program offered; not whether the applicant could benefit or obtain 
results from some other program that the agency does not offer. Although 
the revised definition allows exclusion of some handicapped people from 
some programs, it requires that a handicapped person who is capable of 
achieving the purpose of the program must be accommodated, provided that 
the modifications do not fundamentally alter the nature of the program.
    Two hundred and forty-four commenters objected to this revised 
definition for a variety of reasons. Several commenters stated that the 
Department incorrectly used Davis as the justification for explaining 
the differences between the federally assisted and the federally 
conducted regulations because the Supreme Court upheld the validity of 
the existing regulations in Consolidated Rail Corp. v. Darrone, 104 S. 
Ct. 1248 (1984). This view misunderstands the Court's actions in 
Darrone. In that case the Court ruled on a series of issues, the most 
important of which was under what circumstances section 504 applied to 
employment discrimination by recipients. The Court did not concern 
itself either directly or indirectly with the definition of ``qualified 
handicapped person'' or whether section 504 included limitations based 
on ``undue financial and administrative burdens.''
    Many commenters stated that the proposal would change the definition 
of qualified handicapped person for employment. ``Qualified handicapped 
person'' is defined for purposes of employment in 29 CFR 1613.702(f), 
which is made applicable to this part by Sec. 39.140. Nothing in this 
part changes existing regulations applicable to employment.
    Many commenters assumed that the definition would have the effect of 
placing on the handicapped person the burden of proving that he or she 
is qualified. The definition has been revised to make it clear that the 
agency has the burden of demonstrating that a proposed modification 
would constitute a fundamental alteration in the nature of its program 
or activity. Furthermore, in demonstrating that a modification would 
result in such an alteration, the agency must follow the procedures 
established in Secs. 39.150(a)(2) and 39.160(d), which are discussed 
below, for demonstrating that an action would result in undue financial 
and administrative burdens. That is, the decision must be made by the 
agency head or his or her designee in writing after consideration of all 
resources available for the program or activity and must be accompanied 
by an explanation of the reasons for the decision. If the agency head 
determines that an action

[[Page 688]]

would result in a fundamental alteration, the agency must consider 
options that would enable the handicapped person to achieve the purpose 
of the program but would not result in such an alteration.
    Some commenters said that the definition of ``qualified handicapped 
person'' places handicapped persons in a ``Catch-22'' situation: because 
only qualified handicapped persons are protected by the statute, a 
determination that a person is not qualified would make enforcement 
remedies unavailable to that person. This concern is misplaced. If the 
Department determined that a handicapped person was not ``qualified,'' 
the person could use the procedures established by Sec. 39.170 to 
challenge that determination, just as he or she could challenge any 
other decision by the agency that he or she believed to be 
discriminatory.
    Many commenters argued that the definition of ``qualified 
handicapped person'' confused what should be two separate inquiries: 
whether a person meets essential eligibility requirements and, if so, 
whether accommodation is required. They argued that the reference to 
``fundamental alteration'' in the definition focuses attention on 
accommodations rather than on a handicapped person's abilities. As 
another commenter noted, however, the Supreme Court in Davis developed 
the ``fundamental alteration'' language in a decision that was 
determining the nature and scope of what constitutes a qualified 
handicapped person. The Department continues to believe that the concept 
of ``qualified handicapped person'' properly encompasses both the notion 
of ``essential eligibility requirements'' and the notion of program 
modifications that might fundamentally alter a program.
    Some commenters argued that our analysis of Davis was inappropriate 
because Davis was decided on the basis of individual facts unique to 
that case or because Davis involved federally assisted and not federally 
conducted programs. While cases are decided on the basis of specific 
factual situations, courts, especially the Supreme Court, develop 
general principles of law for use in analyzing facts. The Davis decision 
was the Supreme Court's first comprehensive view of section 504, a major 
new civil rights statute. The Davis holding, that a person who cannot 
achieve the purpose of a program without fundamental changes in its 
nature is not a ``qualified handicapped person,'' is a general 
principle, a statement by the Court on how it views section 504. It is 
therefore necessary to reflect it in the Department's regulation.
    Subparagraph (2) of the definition adopts the existing definition in 
the coordination regulation of ``qualified handicapped person'' with 
respect to services for programs receiving Federal financial assistance 
(28 CFR 41.32(b)). Under this part of the definition, a qualified 
handicapped person is a handicapped person who meets the essential 
eligibility requirements for participation in the program or activity.
    ``Section 504.'' This definition makes clear that, as used in this 
regulation, ``section 504'' applies only to programs or activities 
conducted by the agency and not to programs or activities to which it 
provides Federal financial assistance.

                     Section 39.110  Self-evaluation

    This section requires that the agency conduct a self-evaluation of 
its compliance with section 504 within one year of the effective date of 
this regulation. The self-evaluation requirement is present in the 
existing section 504 coordination regulation for programs or activities 
receiving Federal financial assistance (28 CFR 41.5(b)(2)). Experience 
has demonstrated the self-evaluation process to be a valuable means of 
establishing a working relationship with handicapped persons that 
promotes both effective and efficient implementation of section 504.
    In response to preliminary comments that the proposed rule had no 
specific criteria for conducting a self-evaluation, we requested comment 
on a proposed alternative in our Supplemental Notice (49 FR 7792). We 
received 64 comments, 57 of which were positive. The comments generally 
favored adoption of the alternative section, instead of the proposed 
section. We agree.
    With respect to the applicability of the Federal Advisory Committee 
Act (5 U.S.C. App. 1 et seq.) (FACA), several comments were received. 
They argued that the FACA is not intended to apply to meetings with a 
self-evaluation group comprised of private individuals because they are 
rather unstructured, ad hoc meetings.
    Authority for interpreting FACA was delegated to the General 
Services Administration (GSA) by Executive Order 12024 in 1977. 
Regulations issued by GSA place specific limitations on the scope of the 
Act by delineating examples of meetings or groups not covered. 41 CFR 
part 101-6. GSA identified a major issue in the promulgation of the 
regulations to be the extent of applicability of the Act
    Some commenters believe, as a matter of general policy, that 
advisory groups which are not formally structured, which do not have a 
continuing existence, which meet to deal with specific issues, and whose 
meetings do not constitute an established pattern of conduct should not 
be covered under the Act. * * * This rule reflects our judgment that the 
exclusion of certain non-recurring meetings from the Act's coverage is 
fully consistent with the statute, its legislative history, and judicial 
interpretation. * * * The interim rule provides guidance for those 
meetings between Federal officials and non-Federal individuals which do 
not fall within the

[[Page 689]]

scope of the Act, and for which a charter and consultation with GSA is 
not required.

48 FR 19324 (Preamble to interim rules).

    The regulations define ``advisory committee'' in pertinent part as:

    Any committee, board, commission, council, conference, panel, task 
force or other similar group * * * established by * * * or utilized by * 
* * any agency official for the purpose of obtaining advice or 
recommendations on issues or policy which are within the scope of his or 
her responsibilities.

41 CFR 101-6. 1003 (emphasis added).

    In turn, ``utilized'' is defined in pertinent part as a

group * * * which * * * agency official(s) adopts, such as through 
institutional arrangements, as a preferred source from which to obtain 
advice or recommendations on a specific issue or policy within the scope 
of his or her responsibilities in the same manner as that individual 
would obtain advice or recommendations from an established advisory 
committee.

41 CFR 101-6.1003 (emphasis added).

    The GSA regulation further provides that the Act does not apply to
    (g) Any meeting initiated by the President or one or more Federal 
official [sic] for the purpose of obtaining advice or recommendations 
from one individual;
    (h) Except with respect to established advisory committees:
    (1) Any meeting with a group initiated by the President or one or 
more Federal official(s) for the purpose of exchanging facts or 
information; or
    (2) Any meeting initiated by a group with the President or one or 
more Federal official(s) for the purpose of expressing the group's view, 
provided that the President or Federal official(s) does not use the 
group as a preferred source of advice or recommendations;

                                * * * * *

    (j) Any meeting initiated by a Federal official(s) with more than 
one individual for the purpose of obtaining the advice of individual 
attendees and not for the purpose of utilizing the group to obtain 
consensus advice or recommendations.

41 CFR 101-6.1004 (g), (h), and (j).

    This final rule provides that the agency shall provide an 
opportunity for interested persons, including handicapped persons or 
organizations representing handicapped persons, to participate in the 
self-evaluation process and development of transition plans by 
submitting comments (both oral and written).

                         Section 39.111  Notice

    The Department received negative comments on its omission of a 
paragraph routinely used in section 504 regulations for federally 
assisted programs requiring recipients to inform interested persons of 
their rights under section 504. In the Department's Supplemental Notice, 
we requested comments on inclusion of specific regulatory language. 
Fifty-four positive comments were received. As a result, the Department 
has incorporated that new provision on notice into the final rule. It 
appears as Sec. 39.111.
    Section 39.111 requires the agency to disseminate sufficient 
information to employees, applicants, participants, beneficiaries, and 
other interested persons to apprise them of rights and protections 
afforded by section 504 of this regulation. Methods of providing this 
information include, for example, the publication of information in 
handbooks, manuals, and pamphlets that are distributed to the public to 
describe the agency's programs and activities; the display of 
informative posters in service centers and other public places; or the 
broadcast of information by television or radio.
    Section 39.111 is, in fact, a broader and more detailed version of 
the proposed rule's requirement (at Sec. 39.160(d)) that the agency 
provide handicapped persons with information concerning their rights. 
Because Sec. 39.111 encompasses the requirements of proposed 
Sec. 39.160(d), that latter paragraph has been deleted as duplicative.

       Section 39.130  General prohibitions against discrimination

    Section 39.130 is an adaptation of the corresponding section of the 
section 504 coordination regulation for programs or activities receiving 
Federal financial assistance (28 CFR 41.51). This regulatory provision 
attracted relatively few public comments and has not been changed from 
the proposed rule.
    Paragraph (a) restates the nondiscrimination mandate of section 504. 
The remaining paragraphs in Sec. 39.130 establish the general principles 
for analyzing whether any particular action of the agency violates this 
mandate. These principles serve as the analytical foundation for the 
remaining sections of the regulation. If the agency violates a provision 
in any of the subsequent sections, it will also violate one of the 
general prohibitions found in Sec. 39.130. When there is no applicable 
subsequent provision, the general prohibitions stated in this section 
apply.
    Paragraph (b) prohibits overt denials of equal treatment of 
handicapped persons. The agency may not refuse to provide a handicapped 
person with an equal opportunity to participate in or benefit from its 
program simply because the person is handicapped. Such blatantly 
exclusionary practices often

[[Page 690]]

result from the use of irrebuttable presumptions that absolutely exclude 
certain classes of disabled persons (e.g., epileptics, hearing-impaired 
persons, persons with heart ailments) from participation in programs or 
activities without regard to an individual's actual ability to 
participate. Use of an irrebuttable presumption is permissible only when 
in all cases a physical condition by its very nature would prevent an 
individual from meeting the essential eligiblity requirements for 
participation in the activity in question. It would be permissible, 
therefore, to exclude without an individual evaluation all persons who 
are blind in both eyes from eligibility for a license to operate a 
commercial vehicle in interstate commerce; but it may not be permissible 
to disqualify automatically all those who are blind in just one eye.
    In addition, section 504 prohibits more than just the most obvious 
denials of equal treatment. It is not enough to admit persons in 
wheelchairs to a program if the facilities in which the program is 
conducted are inaccessible. Subparagraph (b)(1)(iii), therefore, 
requires that the opportunity to participate or benefit afforded to a 
handicapped person be as effective as that afforded to others. The later 
sections on program accessibility (Secs. 39.149-39.151) and 
communications (Sec. 39.160) are specific applications of this 
principle.
    Despite the mandate of paragraph (d) that the agency administer its 
programs and activities in the most integrated setting appropriate to 
the needs of qualified handicapped persons, subparagraph (b)(1)(iv), in 
conjunction with paragraph (d), permits the agency to develop separate 
or different aids, benefits, or services when necessary to provide 
handicapped persons with an equal opportunity to participate in or 
benefit from the agency's programs or activities. Subparagraph 
(b)(1)(iv) requires that different or separate aids, benefits, or 
services be provided only when necessary to ensure that the aids, 
benefits, or services are as effective as those provided to others. Even 
when separate or different aids, benefits, or services would be more 
effective, subparagraph (b)(2) provides that a qualified handicapped 
person still has the right to choose to participate in the program that 
is not designed to accommodate handicapped persons.
    Subparagraph (b)(1)(v) prohibits the agency from denying a qualified 
handicapped person the opportunity to participate as a member of a 
planning or advisory board.
    Subparagraph (b)(1)(vi) prohibits the agency from limiting a 
qualified handicapped person in the enjoyment of any right, privilege, 
advantage, or opportunity enjoyed by others receiving any aid, benefit, 
or service.
    Subparagraph (b)(3) prohibits the agency from utilizing criteria or 
methods of administration that deny handicapped persons access to the 
agency's programs or activities. The phrase ``criteria or methods of 
administration'' refers to official written agency policies and to the 
actual practices of the agency. This subparagraph prohibits both 
blatantly exclusionary policies or practices and nonessential policies 
and practices that are neutral on their face, but deny handicapped 
persons an effective opportunity to participate.
    Subparagraph (b)(4) specifically applies the prohibition enunciated 
in Sec. 39.130(b)(3) to the process of selecting sites for construction 
of new facilities or existing facilities to be used by the agency. 
Subparagraph (b)(4) does not apply to construction of additional 
buildings at an existing site.
    Subparagraph (b)(5) prohibits the agency, in the selection of 
procurement contractors, from using criteria that subject qualified 
handicapped persons to discrimination on the basis of handicap.
    Subparagraph (b)(6) prohibits the agency from discriminating against 
qualified handicapped persons on the basis of handicap in the granting 
of licenses or certification. A person is a ``qualified handicapped 
person'' with respect to licensing or certification, if he or she can 
meet the essential eligibility requirements for receiving the license or 
certification (see Sec. 39.103).
    In addition, the agency may not establish requirements for the 
programs or activities of licensees or certified entities that subject 
qualified handicapped persons to discrimination on the basis of 
handicap. For example, the agency must comply with this requirement when 
establishing safety standards for the operations of licensees. In that 
case the agency must ensure that standards that it promulgates do not 
discriminate in an impermissible manner against the employment of 
qualified handicapped persons.
    Subparagraph (b)(6) does not extend section 504 directly to the 
programs or activities of licensees or certified entities themselves. 
The programs or activities of Federal licensees or certified entities 
are not themselves federally conducted programs or activities nor are 
they programs or activities receiving Federal financial assistance 
merely by virtue of the Federal license or certificate. However, as 
noted above, section 504 may affect the content of the rules established 
by the agency for the operation of the program or activity of the 
licensee or certified entity, and thereby indirectly affect limited 
aspects of its operations.
    Twenty-three commenters argued that the regulation should extend to 
the activities of licensees or certified entities, citing Community 
Television of Southern California v. Gottfried, 103 S. Ct. 885 (1983). 
In that case, the Court held that section 504 as applied to federally 
assisted programs did not require the Federal Communications Commission 
to prohibit discrimination on the basis of handicap by licensed 
broadcasters, but that ``the

[[Page 691]]

policies underlying the Communications Act'' might authorize the 
Commission to issue a regulation governing such discrimination. The 
Court did not, however, indicate that section 504 itself could serve as 
the source of such regulatory authority.
    The Court has held that ``the use of the words `public interest' in 
a regulatory statute is not a broad license to promote the general 
public welfare. Rather the words take meaning from the purposes of the 
regulatory legislation.'' National Association for the Advancement of 
Colored People v. Federal Power Commission, 425 U.S. 662, 669 (1976). In 
our view, section 504 does not of itself extend an agency's regulatory 
authority to the activities of licensees or certified entities. Where an 
agency has existing regulatory authority that is broad enough to enable 
it to establish a nondiscrimination requirement for its licensees or 
certified entities, section 504 may support the exercise of that 
authority. Because the Department of Justice has no such underlying 
authority, it cannot prohibit discrimination by licensees.
    Twenty-two commenters objected to the omission of a paragraph from 
the regulations for federally assisted programs that prohibits a 
recipient from providing significant assistance to an organization that 
discriminates. To the extent that assistance from the agency would 
provide significant support to an organization, it would constitute 
Federal financial assistance and the organization, as a recipient of 
such assistance, would be covered by the agency's section 504 regulation 
for federally assisted programs. The regulatory ``significant 
assistance'' provision, however, would be inappropriate in a regulation 
applying only to federally conducted programs or activities.
    Paragraph (c) provides that programs conducted pursuant to Federal 
statute or Executive order that are designed to benefit only handicapped 
persons or a given class of handicapped persons may be limited to those 
handicapped persons.
    Paragraph (d), discussed above, provides that the agency must 
administer programs and activities in the most integrated setting 
appropriate to the needs of qualified handicapped persons.

                       Section 39.140  Employment

    Section 39.140 prohibits discrimination on the basis of handicap in 
employment by the agency. Comments on proposed Sec. 39.140 identified 
two types of problems. First, several commenters felt that the rule's 
treatment of employment was not sufficiently comprehensive. They pointed 
out that the rule does not enumerate the employment practices covered 
(e.g., hiring, promotion, assignment); it does not say what must be done 
to avoid or correct possible discrimination (e.g., reasonable 
accommodation, review of preemployment tests, limitations on 
preemployment inquiries and the use of medical examinations); nor does 
it define a ``qualified handicapped person'' with respect to employment.
    Second, one commenter objected to the rule's adoption of ``the 
definitions, requirements and procedures of section 501 of the 
Rehabilitation Act'' as established in rules of the Equal Employment 
Opportunity Commission (EEOC) at 29 CFR part 1613. This commenter argued 
that EEOC's rules on physical examinations were too restrictive and 
claimed that the proposed rule did not limit employment coverage to the 
program conducted by the Federal government in a manner similar to the 
``program or activity'' limitation on coverage of programs receiving 
Federal financial assistance. Finally, the commenter asserted that 
reliance on section 501 was misplaced because that section of the 
Rehabilitation Act requires affirmative action whereas section 504, 
which the rule implements, contains only a nondiscrimination 
requirement.
    The original notice of proposed rulemaking explained that the 
regulation is in accord with Prewitt v. United States Postal Service, 
662 F.2d 292 (5th Cir. 1981), which held that Congress intended section 
504 to cover the employment practices of Executive agencies. In Prewitt, 
the court also held that, in order to give effect to sections 501 and 
504, both of which cover Federal employment, the administrative 
procedures of section 501 must be followed. Accordingly, the proposed 
rule adopted the definitions, requirements and procedures of section 501 
as established in EEOC's rules.
    The final rule has not been changed. The Department intends to avoid 
duplicative, competing or conflicting standards under the Rehabilitation 
Act with respect to Federal employment. While the rule could define 
terms with respect to employment and enumerate what practices are 
covered and what requirements apply, reference to the Government-wide 
rules of the Equal Employment Opportunity Commission is sufficient and 
avoids duplication. The class of Federal employees and applicants for 
employment covered by section 504 is identical to or subsumed within 
that covered by section 501. To apply different or lesser standards to 
persons alleging violations of section 504 could lead unnecessarily to 
confusion in the enforcement of the Rehabilitation Act with respect to 
Federal employment.

    Section 39.149  Program accessibility: Discrimination prohibited

    The proposed regulation did not contain a general statement of the 
program accessibility requirement similar to that appearing in the 
section 504 coordination regulation for federally assisted programs (28 
CFR 41.56). The decision not to include this language in the proposed 
regulation created the

[[Page 692]]

misperception that a change in substance was intended. In order to 
remedy this misunderstanding, the Supplemental Notice requested comments 
on explicitly including it. Sixty-two commenters favored inclusion of 
the specific regulatory language that was published in the Supplemental 
Notice. Consequently, the final rule has been revised to include the 
language of the Supplemental Notice. The language appears at 
Sec. 39.149.

       Section 39.150  Program accessibility: Existing facilities

    This regulation adopts the program accessibility concept found in 
the existing section 504 coordination regulation for programs or 
activities receiving Federal financial assistance (28 CFR 41.57), with 
certain modifications. Thus, Sec. 39.150 requires that the agency's 
program or activity, when viewed in its entirety, be readily accessible 
to and usable by handicapped persons. The regulation also makes clear 
that the agency is not required to make each of its existing facilities 
accessible (Sec. 39.150(a)(1)). However, Sec. 39.150, unlike 28 CFR 
41.56-41.57, places explicit limits on the agency's obligation to ensure 
program accessibility (Sec. 39.150(a)(2)). This provision provoked 959 
comments, the largest number received on any single issue. Most 
commenters sought the deletion of the ``undue financial and 
administrative burdens'' language from the regulation. On the basis of 
preliminary comments on this paragraph, the Department published 
clarifying language in its Supplemental Notice. The final version 
includes that clarification.
    The ``undue financial and administrative burdens'' language (found 
at Secs. 39.150(a)(2) and 39.160(d)) is based on the Supreme Court's 
Davis holding that section 504 does not require program modifications 
that result in a fundamental alteration in the nature of a program, and 
on the Court's statement that section 504 does not require modifications 
that would result in ``undue financial and administrative burdens.'' 442 
U.S. at 412. Since Davis, circuit courts have applied this limitation on 
a showing that only one of the two ``undue burdens'' would be created as 
a result of the modification sought to be imposed under section 504. 
See, e.g., Dopico v. Goldschmidt, supra; American Public Transit 
Association v. Lewis, supra (APTA). In APTA the United States Court of 
Appeals for the District of Columbia Circuit applied the Davis language 
and invalidated the section 504 regulations of the Department of 
Transportation (DOT). The court in APTA noted ``that at some point a 
transit system's refusal to take modest, affirmative steps to 
accommodate handicapped persons might well violate section 504. But 
DOT's rules do not mandate only modest expenditures. The regulations 
require extensive modifications of existing systems and impose extremely 
heavy financial burdens on local transit authorities.'' 655 F.2d at 
1278.
    The inclusion of subparagraph (a)(2) is an effort to conform the 
agency's regulation implementing section 504 to the Supreme Court's 
interpretation of the statute in Davis as well as to the decisions of 
lower courts following the Davis opinion. This subparagraph 
acknowledges, in light of recent case law, that, in some situations, 
certain accommodations for a handicapped person may so alter an agency's 
program or activity, or entail such extensive costs and administrative 
burdens that the refusal to undertake the accommodations is not 
discriminatory. The failure to include such a provision could lead to 
judicial invalidation of the regulation or reversal of a particular 
enforcement action taken pursuant to the regulation.
    Many commenters argued that the Supreme Court's decision in Davis 
did not require inclusion of an undue burdens defense in this 
regulation. These commenters asserted that the holding in Davis was that 
the plaintiff was not a qualified handicapped person and that the 
subsequent reference to ``undue financial and administrative burdens'' 
was mere dicta. These commenters overlook the interpretations of Davis 
provided by the Federal circuit court cases mentioned above. The APTA 
and Dopico decisions make it clear that financial burdens can limit the 
obligation to comply with section 504. See also New Mexico Association 
for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir. 1982).
    Many commenters argued that inclusion of the undue burdens defense 
was inconsistent with the position taken by Vice President Bush in his 
letter of March 21, 1983, in which he announced the Administration's 
decision not to revise the coordination regulation for federally 
assisted programs. The decision to include the undue burdens defense 
represents no contradiction with the position taken by Vice President 
Bush on the guidelines for federally assisted programs. In his letter 
the Vice President stated that ``extensive change of the existing 504 
coordination regulations was not required, and that with respect to 
those few areas where clarification might be desirable, the courts are 
currently providing useful guidance and can be expected to continue to 
do so in the future.'' One element of that ``useful guidance'' obviously 
comes from interpretations of the Davis decision by the lower Federal 
courts.
    The Department has carefully considered the comments on the process 
that the Department should follow in determining whether a program 
modification would result in undue financial and administrative burdens. 
The Department intends to be guided by six principles in its application 
of the ``fundamental alteration'' and ``undue financial and 
administrative burdens'' language.

[[Page 693]]

    First, because of the extensive resources and capabilities that 
could properly be drawn upon for section 504 purposes by a large Federal 
agency like the Department of Justice, the Department explicitly 
acknowledges that, in most cases, making a Department program accessible 
will likely not result in undue burdens. Second, the burden of proving 
that the accommodation request will result in a fundamental alteration 
or undue burdens has been placed squarely on the Department of Justice, 
not on the handicapped person. Third, in determining whether financial 
and administrative burdens are undue, the Department is to consider all 
Department resources available for use in the funding and operation of 
the conducted program. Fourth, the ``fundamental alteration''/``undue 
burdens'' decision is to be made by the Attorney General or his designee 
and must be accompanied by a written statement of reasons for reaching 
such a conclusion. Fifth, if a disabled person disagrees with the 
Attorney General's finding, he or she can file a complaint under the 
complaint procedures established by the final regulation. A significant 
feature of this complaint adjudication procedure is the availability of 
a hearing before an independent administrative law judge under the due 
process protections of the Administrative Procedure Act. Sixth and 
finally, even if there is a determination that making a program 
accessible will fundamentally alter the nature of the program, or will 
result in undue financial and administrative burdens, the Department 
must still take action, short of that outer limit, that will open 
participation in the Department's program to disabled persons to the 
fullest extent possible.
    One hundred and eighty-one commenters on the Supplemental Notice 
objected to the provision that the ``undue burdens'' decision would be 
based on consideration of ``all agency resources available for use in 
the funding and operation of the conducted program,'' arguing that it 
should be based on the resources of the agency as a whole. Some argued 
that this formulation was required because all agency resources come 
from taxpayer monies and should not be used to support discrimination.
    The Department's entire budget is an inappropriate touchstone for 
making determinations as to undue financial and administrative burdens. 
Many parts of the Department's budget are earmarked for specific 
purposes and are simply not available for use in making the Department's 
programs accessible to disabled persons. For example, funds for the 
operation of the Bureau of Prisons are unavailable for defraying the 
cost of a sign language interpreter at a deportation hearing conducted 
by the Immigration and Naturalization Service. There are extensive 
resources available to the Department and it is expected that the 
Department will, only on very rare occasions, be faced with ``undue 
burdens'' in meeting the program accessibility or communications 
sections of the regulation.
    One commenter said that the term ``undue hardship'' used in 
regulations for federally assisted programs is more specific and less 
discriminatory than the term ``undue burdens.'' The term ``undue 
hardship'' is a term of art used in connection with employment. The term 
``undue burdens'' is taken from the Supreme Court's opinion in Davis and 
is appropriately included in this regulation.
    Some commenters argued that section 504 creates an absolute right to 
access, and that cost cannot limit this right, although it may be a 
factor in determining timeframes for compliance. Section 504 does not 
create an absolute right to access. The Supreme Court stated in Davis 
that recipients need not undertake modifications to their programs to 
meet the requirements of section 504 that would result in ``undue 
financial and administrative burdens.'' This understanding of section 
504 and its implementing regulations for federally assisted programs is 
shared by the lower Federal courts, which have routinely applied the 
``undue burdens'' limitation to accessibility issues. Congress suggested 
no different interpretation of section 504 when applying it to federally 
conducted programs. Spreading the cost of compliance over a period of 
time is, however, one way of avoiding undue financial and administrative 
burdens, and the Department will consider that as an option whenever it 
considers asserting that defense.
    Paragraph (b) sets forth a number of means by which program 
accessibility may be achieved, including redesign of equipment, 
reassignment of services to accessible buildings, and provision of 
aides. In choosing among methods, the agency shall give priority 
consideration to those that will be consistent with provision of 
services in the most integrated setting appropriate to the needs of 
handicapped persons. Structural changes in existing facilities are 
required only when there is no other feasible way to make the agency's 
program accessible. The agency may comply with the program accessibility 
requirement by delivering services at alternate accessible sites or 
making home visits as appropriate.
    Paragraphs (c) and (d) establish time periods for complying with the 
program accessibility requirement. As currently required for federally 
assisted programs by 28 CFR 41.57(b), the agency must make any necessary 
structural changes in facilities as soon as practicable, but in no event 
later than three years after the effective date of this regulation. 
Where structural modifications are required, a transition plan shall be 
developed within six months of the effective date of this regulation. 
Aside from structural changes, all other necessary steps to

[[Page 694]]

achieve compliance shall be taken within sixty days.

 Section 39.151  Program accessibility: New construction and alterations

    Overlapping coverage exists with respect to new construction under 
section 504, section 502 of the Rehabilitation Act of 1973, as amended 
(29 U.S.C 792), and the Architectural Barriers Act of 1968, as amended 
(42 U.S.C. 4151-4157). Section 39.151 provides that those buildings that 
are constructed or altered by, on behalf of, or for the use of the 
agency shall be designed, constructed, or altered to be readily 
accessible to and usable by handicapped persons in accordance with 41 
CFR 101-19.600 to 101-19.607. This standard was promulgated pursuant to 
the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-
4157). It is appropriate to adopt the existing Architectural Barriers 
Act standard for section 504 compliance because new and altered 
buildings subject to this regulation are also subject to the 
Architectural Barriers Act and because adoption of the standard will 
avoid duplicative and possibly inconsistent standards.
    Existing buildings leased by the agency after the effective date of 
this regulation are not required to meet the new construction standard. 
They are subject, however, to the requirements of Sec. 39.150.
    A commenter has recommended that the regulation should require that 
buildings leased after the effective date of the regulation should meet 
the new construction standards of Sec. 39.151, rather than the program 
accessibility standard for existing facilities in Sec. 39.150. Federal 
practice under section 504 has always treated newly leased buildings as 
subject to the existing facility program accessibility standard. Unlike 
the construction of new buildings where architectural barriers can be 
avoided at little or no cost, the application of new construction 
standards to an existing building being leased raises the same prospect 
of retrofitting buildings as the use of an existing Federal facility, 
and the Department believes the same program accessibility standard 
should apply to both owned and leased existing buildings.

                     Section 39.160  Communications

    Section 39.160 requires the agency to take appropriate steps to 
ensure effective communication with personnel of other Federal entities, 
applicants, participants, and members of the public. These steps include 
procedures for determining when auxiliary aids are necessary under 
Sec. 39.160(a)(1) to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, the agency's program or 
activity. They also include an opportunity for handicapped persons to 
request the auxiliary aids of their choice. This expressed choice shall 
be given primary consideration by the agency (Sec. 39.160(a)(1)(i)). The 
agency shall honor the choice unless it can demonstrate that another 
effective means of communication exists or that use of the means chosen 
would not be required under Sec. 39.160(d). That paragraph limits the 
obligation of the agency to ensure effective communication in accordance 
with Davis and the circuit court opinions interpreting it (see supra 
preamble Sec. 39.150(a)(2)). Unless not required by Sec. 39.160(d), the 
agency shall provide auxiliary aids at no cost to the handicapped 
person.
    In some circumstances, a notepad and written materials may be 
sufficient to permit effective communication with a hearing-impaired 
person. In many circumstances, however, they may not be, particularly 
when the information being communicated is complex or exchanged for a 
lengthy period of time (e.g., a meeting) or where the hearing-impaired 
applicant or participant is not skilled in spoken or written language. 
In these cases, a sign language interpreter may be appropriate. For 
vision-impaired persons, effective communication might be achieved by 
several means, including readers and audio recordings. In general, the 
agency intends to inform the public of (1) the communications services 
it offers to afford handicapped persons an equal opportunity to 
participate in or benefit from its programs or activities, (2) the 
opportunity to request a particular mode of communication, and (3) the 
agency's preferences regarding auxiliary aids when several different 
modes are effective.
    The agency shall ensure effective communication with vision-impaired 
and hearing-impaired persons involved in hearings conducted by the 
agency, e.g., INS deportation proceedings. Auxiliary aids in these 
proceedings must be afforded where they are necesssary to ensure 
effective communication at the proceedings. When sign language 
interpreters are necessary, the agency may require that it be given 
reasonable notice prior to the proceeding of the need for an 
interpreter. Moreover, the agency need not provide individually 
prescribed devices, readers for personal use or study, or other devices 
of a personal nature (Sec. 39.160(a)(1)(ii)). For example, the agency 
need not provide eye glasses or hearing aids to applicants or 
participants in its programs. Similarly, the regulation does not require 
the agency to provide wheelchairs to persons with mobility impairments.
    Some commenters suggested that the Department's language in 
Sec. 39.160(a)(1)(ii) that states that the agency need not provide 
individually prescribed devices or readers for personal use or study be 
modified to state that such devices are not required for ``nonprogram 
material.'' This suggestion has not been adopted because it is less 
clear than the existing formulation, which is intended to

[[Page 695]]

distinguish between communications that are necessary to obtain the 
benefits of the federal programs and those that are not and which 
parallels the requirements of the Federal government's section 504 
regulations for federally assisted programs. For example, a federally 
operated library would have to ensure effective communication between 
its librarian and a patron, but not between the patron and a friend who 
had accompanied him or her to the library.
    Several comments suggested that the definition of auxiliary aids 
should include attendant services that may be needed to aid disabled 
persons to travel to meetings. Other comments recommended that in some 
cases attendant services may be an appropriate auxiliary aid to achieve 
program accessiblity.
    The Department has not adopted the approach recommended by these 
comments.To the extent that the services of an attendant are not 
directly related to a federally conducted program or activity, it would 
be inappropriate to require them at Federal expense. For example, the 
services of a sign language interpreter make a workshop as available to 
any deaf participant as it is to other participants. The need for 
services of interpreters arises directly out of the presentation of 
information in a form that can be understood by hearing persons. 
However, the Department views the services of an attendant for a 
disabled person as generally personal in nature and not directly related 
to the federally conducted program.
    A different conclusion, however, might be reached for Federal 
employees or other persons traveling for the agency. Where a disabled 
person who is unable to travel without an attendant is required to 
perform official travel, the travel expenses of an attendant, including 
per diem and transportation expenses, may be paid by the Department. See 
5 U.S.C. 3102(d) (1982).
    Paragraph (b) requires the agency to provide information to 
handicapped persons concerning accessible services, activities, and 
facilities. Paragraph (c) requires the agency to provide signage at 
inaccessible facilities that directs users to locations with information 
about accessible facilities.

                  Section 39.170  Compliance procedures

    Section 39.170 establishes a detailed complaint processing and 
review procedure for resolving allegations of discrimination in 
violation of section 504 in the Department of Justice's programs and 
activities. The 1978 amendments to section 504 failed to provide a 
specific statutory remedy for violations of section 504 in federally 
conducted programs. The amendment's legislative history suggesting 
parallelism between section 504 for federally conducted and federally 
assisted programs is unhelpful in this area because the fund termination 
mechanism used in section 504 federally assisted regulations depends on 
the legal relationship between a Federal funding agency and the 
recipients to which the Federal funding is extended. The Department has 
decided that the most effective and appropriate manner in which to 
enforce section 504 in the federally conducted area is through an 
equitable complaint resolution process. Section 39.170 establishes this 
process.
    The complaint process in the final rule is substantially the same as 
the one that the Department proposed. The Department received 57 
comments on this section. These comments did not question the use of a 
complaint-responsive enforcement scheme as appropriate for section 504 
for federally conducted programs. The Department continues to view its 
specific proposal as satisfactory.
    Paragraph (a) specifies that paragraphs (c) through (l) of this 
section establish the procedures for processing complaints other than 
employment complaints. Paragraph (b) provides that the agency will 
process employment complaints according to procedures established in 
existing regulations of the EEOC (29 CFR part 1613) pursuant to section 
501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
    Paragraph (c) vests in the Responsible Official the responsibility 
for the overall management of the 504 compliance program. ``Responsible 
Official'' or ``Official,'' as defined in Sec. 39.103, refers to the 
Director of Equal Employment Opportunity, who is designated as the 
official responsible for coordinating implementation of compliance 
procedures set forth in Sec. 39.170. The definition of ``Official'' 
includes other Department Officials to whom authority has been delegated 
by the Official. The Assistant Attorney General for Administration has 
been designated as the Director of Equal Employment Opportunity for the 
Department. See 28 CFR 42.2(a).
    Although one person has responsibility both for administering the 
Equal Employment Opportunity Program for the Department and for 
coordinating implementation of the compliance procedures under this 
part, the procedures for carrying out these two responsibilities are 
different. The Official would follow the procedures for enforcing equal 
employment opportunity, as set forth in 29 CFR part 1613, only for 
complaints alleging employment discrimination (see Sec. 39.170(b)). 
Other complaints would be processed under the procedures in Sec. 39.170. 
Authority for processing complaints of employment discrimination has 
been delegated to Equal Employment Opportunity Officers in some 
Department components, and it is expected that authority for enforcing 
this part will be similarly delegated.
    Subparagraphs (d) (1) and (3) provide that any person who believes 
that he or she has been discriminated against may file a complaint 
within 180 days from the date of the

[[Page 696]]

alleged discrimination. The Official may extend the time limit when the 
complainant shows good cause. Good cause could be found if, for example, 
(1) the complainant mistakenly filed with the wrong agency and was not 
informed of the mistake within the 180 days; or (2) the complainant 
could not reasonably be expected to know of the act or event said to be 
discriminatory.
    Several commenters argued that the proposed rule unnecessarily 
restricted the right to file a complaint by not allowing an individual 
victim of discrimination to authorize a representative to file on his or 
her behalf. The final rule permits filing by the authorized 
representative of an individual victim, or, in the case of class 
discrimination, of a member of the class, as well as by an individual 
victim or class member. The final rule has been revised to make it clear 
that complaints alleging that a specific class of persons has been 
discriminated against may only be filed by a member of that specific 
class or by a representative authorized to file the complaint by a 
member of that class (Sec. 39.170(d)(1)).
    The Federal Bureau of Prisons has established an Administrative 
Remedy Procedure for handling grievances of inmates of Federal penal 
institutions (28 CFR part 542). This procedure allows an inmate to file 
a formal written complaint with the Warden of the Institution or with 
the Regional Director. While these remedies are not a substitute for the 
right to an independent investigation by a civil rights office and 
appeal to the Complaint Adjudication Officer, the final rule requires 
inmates to exhaust these procedural remedies before filing a complaint 
with the Official. The time period for filing a complaint with the 
Official would be extended by the time spent exhausting these remedies. 
This requirement applies only to inmates and does not extend to visitors 
and employees.
    The Department received several comments on how prisoners' 
complaints should be handled. Some of them suggested that both the 
discrimination procedure and the prison grievance procedures should be 
invoked simultaneously. The Department believes that this proposal would 
require the unnecessary duplication of efforts without materially 
enhancing results. The Bureau of Prisons reported that thousands of 
inmate complaints were filed in 1983 alone and that several court 
decisions have held that the inmate administrative remedy procedure must 
be exhausted before suit can be filed. Although the volume of complaints 
by prison inmates might be burdensome, it is not possible now to 
forecast the number that will be filed. The Department believes, 
however, that handicapped prisoners must be afforded the right to have 
their complaints investigated by an office that specializes in 
discrimination complaints, including section 504 complaints, as well as 
the right to appeal to the Complaint Adjudication Officer. It is 
expected that the requirement that inmates first exhaust prison 
administrative remedies will be effective in resolving most meritorious 
complaints. It may be necessary, of course, for the Department to 
provide additional resources to handle complaints filed under the new 
regulation.
    Subparagraph (d)(2) requires that the name and identity of a 
complainant be held in confidence unless he or she waives that right in 
writing and except to the extent necessary for compliance purposes.
    Complaints may be mailed or delivered to the Attorney General, the 
Responsible Official, or other agency officials. Complaints received by 
any agency official other than the Responsible Official must be 
forwarded immediately to the Responsible Official (subparagraph (d)(4)).
    Paragraph (e) requires the agency to send to the Architectural and 
Transportation Barriers Compliance Board a copy of any complaint 
alleging that a building or facility subject to the Architectural 
Barriers Act or section 502 was designed, constructed, or altered in a 
manner that does not provide ready access to and use by handicapped 
persons.
    The Official is required to accept all complete complaints over 
which the agency has jurisdiction (Sec. 39.170(f)(1)). If the Official 
determines that the agency does not have jurisdiction over a complaint, 
the Official shall promptly notify the complainant and make reasonable 
efforts to refer the complaint to the appropriate entity of the Federal 
government (Sec. 39.170(f)(3)).
    If a complaint is not complete when it is filed, the Official must 
notify the complainant within 30 days that additional information is 
needed. The complainant must furnish the necessary information within 30 
days of receipt of the notice, or the complaint will be dismissed 
without prejudice. Filing an incomplete complaint within 180 days from 
the date of the alleged discrimination satisfies the requirement of 
subparagraph (d)(3), but the timeframes governing the Official's other 
obligations to process the complaint (see, e.g., Sec. 39.170(g)(1), 
Sec. 39.170(h)) do not begin to operate until the Official receives a 
complete complaint.
    Within 180 days of receipt of the complete complaint, the Official 
is to investigate the complaint, attempt an informal resolution, and, if 
informal resolution is not achieved, issue a letter of findings 
(Sec. 39.170(h)). Within the time limit, the Official should make every 
effort to achieve informal resolution whenever possible.
    In response to a suggestion from a commenter, the Department no 
longer refers to the letter of findings as ``preliminary.'' The

[[Page 697]]

word ``preliminary'' has been deleted because, if there is no appeal, 
the determination made in the letter of findings will constitute the 
final agency decision.
    Paragraph (h) requires that the Official's letter be sent to the 
complainant and respondent, and that it contain findings of fact and 
conclusions of law, the relief granted if discrimination is found, and 
notice of the right to appeal. The regulation provides that a party may 
appeal the Official's letter or findings to the Complaint Adjudication 
Officer (CAO). If neither party files an appeal from the letter of 
findings within 30 days after receipt of the letter, the letter will 
constitute the final decision of the agency (Sec. 39.170(i)(4)).
    The Department's final rule provides an opportunity for a hearing 
before an administrative law judge (ALJ). The ALJ would make a 
recommended decision to the CAO, who would make the final agency 
decision. The purpose of the hearing is to provide a forum in which the 
complainant or respondent can have an opportunity to be heard, confront 
witnesses, and present evidence so that an administrative law judge can 
issue a recommended decision that is well-reasoned and justified on the 
basis of the evidence presented.
    The opportunity for a hearing before an ALJ assures more 
impartiality and the appearance of more impartiality than a decision 
made by one agency official concerning other officials of the same 
agency. The Department expects that agency decisions based on a hearing 
record would more likely survive later judicial review.
    Under the regulation, another person or organization would be 
allowed to participate as a third party or amicus curiae if the ALJ 
determines that the petitioner has a legitimate interest in the 
proceedings, that participation will not duly delay the outcome, and 
that petitioner's participation may contribute materially to the 
disposition of the proceedings.
    The Department received comments on the proposed opportunity for a 
hearing before an administrative law judge. Some commenters were 
primarily concerned that by invoking a hearing before the ALJ with the 
procedural safeguards adopted from the Administrative Procedure Act 
(APA) (5 U.S.C. 554-557), the complainant would lose the right to a de 
novo review of the agency's final decision, because the APA allows a 
Federal court only to determine if the agency's final decisions are 
``arbitrary and capricious'' (5 U.S.C. 706(2)(A)). It is beyond our 
jurisdiction to specify that a de novo review is available to complaints 
seeking judicial review of final agency decisions. This issue is for the 
courts to decide. That is also true for the issue of the availability of 
a private right of action, either without invoking our compliance 
procedures or after the issuance of letters of findings.
    Given the inherent conflicts of interest in situations where 
complaints allege discrimination on the part of the Department, it is 
critically important to ensure that a complaint be reviewed in a fair, 
independent process. The availability of a hearing before an independent 
ALJ would provide the appearance as well as the actuality of an 
impartial compliance mechanism. The Department has therefore included 
the provision for a hearing in the final regulation.
    One comment requested the addition of a provision whereby the 
Department would award attorneys fees to complainants. Another comment 
suggested that the Equal Access to Justice Act (5 U.S.C. 504) might 
provide for the award of fees. Nothing contained in title V of the 
Rehabilitation Act provides for the agency award of attorneys fees in 
administrative proceedings other than those involving Federal 
employment. Nor does the EAJA and the Department's implementing 
regulations at 28 CFR part 24 provide for such awards in hearings 
conducted under Sec. 39.170(k). We have therefore included no attorneys 
fee provision in the current regulations.
    Under paragraph (1), the CAO renders a final agency decision after 
appeal without a hearing or after a hearing. The CAO directs appropriate 
remedial action if discrimination is found. The CAO's decision will 
involve reviewing the entire file, including the investigation report, 
letter of findings, and, if a hearing was held, the hearing record and 
recommended decision of the administrative law judge. The decision shall 
be made within 60 days of receipt of the complaint file or the hearing 
record.
    One commenter objected to the requirement in subparagraph (l)(1) 
that the CAO explain specifically a decision to reject or modify the 
ALJ's proposed findings, arguing that it would inappropriately limit the 
CAO's consideration of the issues. We have adopted the suggestion and 
eliminated the requirement.
    In response to recommendations from the Department's CAO and the 
Drug Enforcement Administration's ALJ, some changes have been made in 
the compliance procedures. Among the changes are a new requirement that 
the ALJ provide findings to all parties, not just the CAO, an added 
provision for filing exceptions to an ALJ's recommended decision, a 
delineation of the authorities of the ALJ, and a clarification of the 
responsibility for supervising compliance with the final agency decision 
between the Responsible Official and the CAO.
    The Department also received some comments on the appropriateness of 
providing for an appeal by either the complainant or respondent. Some 
commenters objected to

[[Page 698]]

allowing a respondent to obtain an administrative appeal because it 
could delay remedying discrimination. On the other hand, an impartial 
adjudicatory mechanism would require that opportunity is provided for 
both sides to appeal. For this reason, the Department finds it necessary 
and appropriate for both complainant and respondent to have the right to 
an administrative appeal.



PART 40--STANDARDS FOR INMATE GRIEVANCE PROCEDURES--Table of Contents




      Subpart A--Minimum Standards for Inmate Grievance Procedures

Sec.
40.1  Definitions.
40.2  Adoption of procedures.
40.3  Communication of procedures.
40.4  Accessibility.
40.5  Applicability.
40.6  Remedies.
40.7  Operation and decision.
40.8  Emergency procedure.
40.9  Reprisals.
40.10  Records--nature; confidentiality.

    Subpart B--Procedures for Obtaining Certification of a Grievance 
                                Procedure

40.11  Submissions by applicant.
40.12  Notice of intent to apply for certification.
40.13  Review by the Attorney General.
40.14  Conditional certification.
40.15  Full certification.
40.16  Denial of certification.
40.17  Reapplication after denial of certification.
40.18  Suspension of certification.
40.19  Withdrawal of certification.
40.20  Contemplated change in certified procedure.
40.21  Notification of court.
40.22  Significance of certification.

    Authority: 42 U.S.C. 1997e.

    Source: Order No. 957-81, 46 FR 48186, Oct. 1, 1981, unless 
otherwise noted.



      Subpart A--Minimum Standards for Inmate Grievance Procedures



Sec. 40.1  Definitions.

    For the purposes of this part--
    (a) Act means the Civil Rights of Institutionalized Persons Act, 
Public Law 96-247, 94 Stat. 349 (42 U.S.C. 1997).
    (b) Applicant means a state or political subdivision of a state that 
submits to the Attorney General a request for certification of a 
grievance procedure.
    (c) Attorney General means the Attorney General of the United States 
or the Attorney General's designees.
    (d) Grievance means a written complaint by an inmate on the inmate's 
own behalf regarding a policy applicable within an institution, a 
condition in an institution, an action involving an inmate of an 
institution, or an incident occurring within an institution. The term 
``grievance'' does not include a complaint relating to a parole 
decision.
    (e) Inmate means an individual confined in an institution for 
adults, who has been convicted of a crime.
    (f) Institution means a jail, prison, or other correctional 
facility, or pretrial detention facility that houses adult inmates and 
is owned, operated, or managed by or provides services on behalf of a 
State or political subdivision of a State.
    (g) State means a State of the United States, the District of 
Columbia, the commonwealth of Puerto Rico, or any of the territories and 
possessions of the United States.
    (h) Substantial compliance means that there is no omission of any 
essential part from compliance, that any omission consists only of an 
unimportant defect or omission, and that there has been a firm effort to 
comply fully with the standards.



Sec. 40.2  Adoption of procedures.

    Each applicant seeking certification of its grievance procedure for 
purposes of the Act shall adopt a written grievance procedure. Inmates 
and employees shall be afforded an advisory role in the formulation and 
implementation of a grievance procedure adopted after the effective date 
of these regulations, and shall be afforded an advisory role in 
reviewing the compliance with the standards set forth herein of a 
grievance procedure adopted prior to the effective date of these 
regulations.



Sec. 40.3  Communication of procedures.

    The written grievance procedure shall be readily available to all 
employees and inmates of the institution. Additionally, each inmate and 
employee shall, upon arrival at the institution, receive written 
notification and an oral explanation of the procedure,

[[Page 699]]

including the opportunity to have questions regarding the procedure 
answered orally. The written procedure shall be available in any 
language spoken by a significant portion of the institution's 
population, and appropriate provisions shall be made for those not 
speaking those languages, as well as for the impaired and the 
handicapped.



Sec. 40.4  Accessibility.

    Each inmate shall be entitled to invoke the grievance procedure 
regardless of any disciplinary, classification, or other administrative 
or legislative decision to which the inmate may be subject. The 
institution shall ensure that the procedure is accessible to impaired 
and handicapped inmates.



Sec. 40.5  Applicability.

    The grievance procedure shall be applicable to a broad range of 
complaints and shall state specifically the types of complaints covered 
and excluded. At a minimum, the grievance procedure shall permit 
complaints by inmates regarding policies and conditions within the 
jurisdiction of the institution or the correctional agency that affect 
them personally, as well as actions by employees and inmates, and 
incidents occurring within the institution that affect them personally. 
The grievance procedure shall not be used as a disciplinary procedure.



Sec. 40.6  Remedies.

    The grievance procedure shall afford a successful grievant a 
meaningful remedy. Although available remedies may vary among 
institutions, a reasonable range of meaningful remedies in each 
institution is necessary.



Sec. 40.7  Operation and decision.

    (a) Initiation. The institution may require an inmate to attempt 
informal resolution before the inmate files a grievance under this 
procedure. The procedure for initiating a grievance shall be simple and 
include the use of a standard form. Necessary materials shall be freely 
available to all inmates and assistance shall be readily available for 
inmates who cannot complete the forms themselves. Forms shall not demand 
unnecessary technical compliance with formal structure or detail, but 
shall encourage a simple and straightforward statement of the inmate's 
grievance.
    (b) Inmate and employee participation. The institution shall provide 
for an advisory role for employees and inmates in the operation of the 
grievance system. In-person hearings and committees consisting of either 
inmates or employees or both are not required by this paragraph, but 
they are permitted so long as no inmate participates in the resolution 
of any other inmate's grievance over the objection of the grievant.
    (c) Investigation and consideration. No inmate or employee who 
appears to be involved in the matter shall participate in any capacity 
in the resolution of the grievance.
    (d) Reasoned, written responses. Each grievance shall be answered in 
writing at each level of decision and review. The response shall state 
the reasons for the decision reached and shall include a statement that 
the inmate is entitled to further review, if such is available, and 
shall contain simple directions for obtaining such review.
    (e) Fixed time limits. Responses shall be made within fixed time 
limits at each level of decision. Time limits may vary between 
institutions, but expeditious processing of grievances at each level of 
decision is essential to prevent grievance from becoming moot. Unless 
the grievant has been notified of an extension of time for a response, 
expiration of a time limit at any stage of the process shall entitle the 
grievant to move to the next stage of the process. In all instances 
grievances must be processed from initiation to final disposition within 
180 days, inclusive of any extensions.
    (f) Review. The grievant shall be entitled to review by a person or 
other entity, not under the institution's supervision or control, of the 
disposition of all grievances, including alleged reprisals by an 
employee against an inmate. A request for review shall be allowed 
automatically without interference by

[[Page 700]]

administrators or employees of the institution and such review shall be 
conducted without influence or interference by administrators or 
employees of the institution.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1618-92, 57 FR 38773, Aug. 27, 1992; Order No. 1955-95, 60 FR 13902, 
Mar. 15, 1995]



Sec. 40.8  Emergency procedure.

    The grievance procedure shall contain special provision for 
responding to grievances of an emergency nature. Emergency grievances 
shall be defined, at a minimum, as matters regarding which disposition 
according to the regular time limits would subject the inmate to a 
substantial risk of personal injury, or cause other serious and 
irreparable harm to the inmate. Emergency grievances shall be forwarded 
immediately, without substantive review, to the level at which 
corrective action can be taken. The procedure for resolving emergency 
grievances shall provide for expedited responses at evey level of 
decision. The emergency procedure shall also include review by a person 
or entity not under the supervision or control of the institution.



Sec. 40.9  Reprisals.

    The grievance procedure shall prohibit reprisals. ``Reprisal'' means 
any action or threat of action against anyone for the good faith use of 
or good faith participation in the grievance procedure. The written 
procedure shall include asurance that good faith use of or good faith 
participation in the grievance mechanism will not result in formal or 
informal reprisal. An inmate shall be entitled to pursue through the 
grievance procedure a complaint that a reprisal occurred.



Sec. 40.10  Records--nature; confidentiality.

    (a) Nature. Records regarding the filing and disposition of 
grievances shall be collected and maintained systematically by the 
institution. Such records shall be preserved for at least three years 
following final disposition of the grievance. At a minimum, such records 
shall include aggregate information regarding the numbers, types and 
dispositions of grievances, as well as individual records of the date of 
and the reasons for each disposition at each stage of the procedure.
    (b) Confidentiality. Records regarding the participation of an 
individual in the grievance proceedings shall be considered confidential 
and shall be handled under the same procedures used to protect other 
confidential case records. Consistent with ensuring confidentiality, 
staff who are participating in the disposition of a grievance shall have 
access to records essential to the resolution of the grievance.



    Subpart B--Procedures for Obtaining Certification of a Grievance 
                                Procedure



Sec. 40.11  Submissions by applicant.

    (a) Written statement. An application for certification of a 
grievance procedure under the Act shall be submitted to the Office of 
the Attorney General, U.S. Department of Justice, Main Justice Building, 
Washington, DC 20530, and shall include a written statement describing 
the grievance procedure, a brief description of the institution or 
institutions covered by the procedure, and accompanying plans for or 
evidence of implementation in each institution.
    (b) Evidence of compliance with established standards. An applicant 
seeking certification of a grievance procedure as being in substantial 
compliance with the standards promulgated herein should submit evidence 
of compliance with those standards, including the following information:
    (1) Instructional materials. A copy of the instructional materials 
for inmates and employees regarding use of the grievance procedure 
together with a description of the manner in which such materials are 
distributed, a description of the oral explanation of the grievance 
procedure, including the circumstances under which it is delivered, and 
a description of the training, if any, provided to employees and inmates 
in the skills necessary to operate the grievance procedure.
    (2) Form. A copy of the form used by inmates to initiate a grievance 
and to obtain review of the disposition of a grievance.

[[Page 701]]

    (3) Information regarding past compliance. For a grievance procedure 
that has operated for more than one year at the time of the application, 
the applicant shall submit information regarding the number and types of 
grievances filed over the preceding year, the disposition of the 
grievances with sample responses from each level of decision, the 
remedies granted, evidence of compliance with time limits at each level 
of decision, and a description of the role of inmates and employees in 
the formulation, implementation, and operation of the grievance 
procedure.
    (4) Plan for collecting information. For a grievance procedure that 
has operated for less than one year at the time of the application, the 
applicant shall submit a plan for collecting the information described 
in paragraph (b)(3) of this section.
    (5) Assurance of confidentiality. A description of the steps taken 
to ensure the confidentiality of records of individual use of or 
participation in the grievance procedure.
    (6) Evaluation. A description of the plans for periodic evaluation 
of the grievance procedure, including identification of the group, 
individuals or individual who will conduct the evaluation and 
identification of the person or entity not under the control of 
supervision of the institution who will review the evaluation, together 
with two copies of the most recent evaluation, if one has been 
performed.
    (c) Fair and effective procedures. The Attorney General shall also 
certify a grievance procedure under the Act, even if the procedure is 
not in substantial compliance with the standards promulgated herein, if 
the Attorney General determines that the procedure is otherwise fair and 
effective for the consideration and disposition of grievances filed by 
inmates. If a grievance procedure is not in substantial compliance with 
all standards herein, the applicant shall identify the aspects in which 
the procedure is in substantial compliance and those in which it is not, 
describe the other relevant features of the procedure, and explain why 
the procedure is otherwise fair and effective.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.12  Notice of intent to apply for certification.

    The applicant shall post notice of its intent to request 
certification in prominent places in each institution to be covered by 
the procedure and shall provide similar written notice to the U.S. 
District Court(s) having jurisdiction over each institution to be 
covered by the procedure. The notices shall invite comments regarding 
the grievance procedure and direct them to the Attorney General.



Sec. 40.13  Review by the Attorney General.

    The Attorney General shall review and respond to each application as 
promptly as the circumstances, including the need for independent 
investigation and consideration of the comments of agencies, and 
interested groups and persons, permit.



Sec. 40.14  Conditional certification.

    If, in the judgment of the Attorney General, a grievance procedure 
that has been in existence less than one year is at the time of 
application in substantial compliance with the standards promulgated 
herein or is otherwise fair and effective, the Attorney General shall 
grant conditional certification for one year or until the applicant 
satisfies the requirements of Sec. 40.15, whichever period is shorter.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.15  Full certification.

    If, in the judgment of the Attorney General, a grievance procedure 
that has been in existence longer than one year at the time of 
application is in substantial compliance with the standards promulgated 
herein or is otherwise fair and effective, the Attorney General shall 
grant full certification. Such certification shall remain in effect 
unless and until the Attorney General finds reasonable cause to believe 
that the grievance procedure is no longer in substantial compliance with 
the minimum standards or is no longer fair and effective, and so 
notifies the applicant in writing.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]

[[Page 702]]



Sec. 40.16  Denial of certification.

    If the Attorney General finds that the grievance procedure is not in 
substantial compliance with the standards promulgated herein or is no 
longer fair and effective, the Attorney General shall deny certification 
and inform the applicant in writing of the area or areas in which the 
grievance procedure or the application is deemed inadequate.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.17  Reapplication after denial of certification.

    An applicant denied certification may resubmit an application for 
certification at any time after the inadequacy in the application or the 
grievance procedure is corrected.



Sec. 40.18  Suspension of certification.

    (a) Reasonable belief of non-compliance. If the Attorney General has 
reasonable grounds to believe that a previously certified grievance 
procedure may no longer be in substantial compliance with the minimum 
standards or may no longer be fair and effective, the Attorney General 
shall suspend certification. The suspension shall continue until such 
time as the deficiency is corrected, in which case certification shall 
be reinstated, or until the Attorney General determines that substantial 
compliance no longer exists or that the procedure is no longer fair and 
effective, in which case, except as provided in paragraph (b) of this 
section, the Attorney General shall withdraw certification pursuant to 
Sec. 40.19 of this part.
    (b) Defect may be readily remedied; good faith effort. If the 
Attorney General determines that a grievance procedure is no longer in 
substantial compliance with the minimum standards or is no longer fair 
and effective, but has reason to believe that the defect may be readily 
corrected and that good faith efforts are underway to correct it, the 
Attorney General may suspend certification until the grievance procedure 
returns to compliance with the minimum standards or is otherwise fair 
and effective.
    (c) Recertification after suspension pursuant to paragraph (a) of 
this section. The Attorney General shall reinstate the certification of 
an appliant whose certification was suspended pursuant to paragraph (a) 
of this section upon a demonstration in writing by the applicant that 
the specific deficiency on which the suspension was based has been 
corrected or that the information that caused the Attorney General to 
suspend certification was erroneous.
    (d) Recertification after suspension pursuant to paragraph (b) of 
this section. The Attorney General shall reinstate the certification of 
an applicant whose certification has been suspended pursuant to 
paragraph (b) of this section upon a demonstration in writing that the 
deficiency on which the suspension was based has been corrected.
    (e) Notification in writing of suspension or reinstatement. The 
Attorney General shall notify an applicant in writing that certification 
has been suspended or reinstated and state the reasons for the action.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.19  Withdrawal of certification.

    (a) Finding of non-compliance. If the Attorney General finds that a 
grievance procedure is no longer in substantial compliance with the 
minimum standards or is no longer otherwise fair and effective, the 
Attorney General shall withdraw certification, unless the Attorney 
General concludes that suspension of certification under Sec. 40.18(b) 
of this part is appropriate.
    (b) Notification in writing of withdrawal of certification. The 
Attorney General shall notify an applicant in writing that certification 
has been withdrawn and state the reasons for the action.
    (c) Recertification after withdrawal. An applicant whose 
certification has been withdrawn and who wishes to receive 
recertification shall submit a new application for certification.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.20  Contemplated change in certified procedure.

    A proposed change in a certified procedure must be submitted to the 
Attorney General thirty days in advance of

[[Page 703]]

its proposed effective date. The Attorney General shall review such 
proposed change and notify the applicant in writing before the effective 
date of the proposed change if such change will result in suspension or 
withdrawal of the certification of the grievance procedure.



Sec. 40.21  Notification of court.

    The Attorney General shall notify in writing the Chief Judges of the 
U.S. Court of Appeals and of the U.S. District Court(s) within whose 
jurisdiction the applicant is located of the certification, suspension 
of certification, withdrawal of certification and recertification of the 
applicant's grievance procedure. The Attorney General shall also notify 
the court of the certification status of any grievance procedure at the 
request of the court or any party in an action by an adult inmate 
pursuant to 42 U.S.C. 1983.



Sec. 40.22  Significance of certification.

    Certification of a grievance procedure by the Attorney General shall 
signify only that on the basis of the information submitted, the 
Attorney General believes the grievance procedure is in substantial 
compliance with the minimum standards or is otherwise fair and 
effective. Certification shall not indicate approval of the use or 
application of the grievance procedure in a particular case.

[Order No. 1955-95, 60 FR 13904, Mar. 15, 1995]



PART 41--IMPLEMENTATION OF EXECUTIVE ORDER 12250, NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS--Table of Contents




               Subpart A--Federal Agency Responsibilities

Sec.
41.1  Purpose.
41.2  Application.
41.3  Definitions.
41.4  Issuance of agency regulations.
41.5  Enforcement.
41.6  Interagency cooperation.
41.7  Coordination with sections 502 and 503.

    Subpart B--Standards for Determining Who Are Handicapped Persons

41.31  Handicapped person.
41.32  Qualified handicapped person.

     Subpart C--Guidelines for Determining Discriminatory Practices

                                 General

41.51  General prohibitions against discrimination.

                               Employment

41.52  General prohibitions against employment discrimination.
41.53  Reasonable accommodation.
41.54  Employment criteria.
41.55  Preemployment inquiries.

                          Program Accessibility

41.56  General requirement concerning program accessibility.
41.57  Existing facilities.
41.58  New construction.

Appendix A to Part 41--Leadership and Coordination of Nondiscrimination 
          Laws

    Authority: Executive Order 12250, 45 FR 72995; sec. 504, 
Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 
794); sec. 111(a), Rehabilitation Act Amendments of 1974, Pub. L. 93-
516, 88 Stat. 1619 (29 U.S.C. 706).

    Source: 43 FR 2132, Jan. 13, 1978, unless otherwise noted. 
Redesignated at 46 FR 40686, 40687, Aug. 11, 1981.

    Effective Date Note: At 46 FR 40687, Aug. 11, 1981, the application 
of part 41 with respect to mass transportation was suspended until 
further notice.



               Subpart A--Federal Agency Responsibilities



Sec. 41.1  Purpose.

    The purpose of this part is to implement Executive Order 12250, 
which requires the Department of Justice to coordinate the 
implementation of section 504 of the Rehabilitation Act of 1973.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.2  Application.

    This part applies to each Federal department and agency that is 
empowered to extend Federal financial assistance.



Sec. 41.3  Definitions.

    As used in this regulation, the term:

[[Page 704]]

    (a) Executive Order means Executive Order 12250, titled ``Leadership 
and Coordination of Nondiscrimination Laws,'' issued November 2, 1980.
    (b) Section 504 means section 504 of the Rehabilitation Act of 1973, 
Public Law 93-112, as amended by the Rehabilitation Act Amendments of 
1974, Public Law 93-516, 29 U.S.C. 794.
    (c) Agency means a Federal department or agency that is empowered to 
extend financial assistance.
    (d) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (e) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the agency provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (f) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.4  Issuance of agency regulations.

    (a) Each agency shall issue, after notice and opportunity for 
comment, a regulation to implement section 504 with respect to the 
programs and activities to which it provides assistance. The regulation 
shall be consistent with this part.
    (b) Each agency shall issue a notice of proposed rulemaking no later 
than 90 days after the effective date of this part. Each agency shall 
issue a final regulation no later than 135 days after the end of the 
period for comment on its proposed regulation: Provided, That the agency 
shall submit its proposed final regulation to the Assistant Attorney 
General, Civil Rights Division, Department of Justice, for review at 
least 45 days before it is to be issued.
    (c) Each such agency regulation shall:
    (1) Define appropriate terms, consistent with the definitions set 
forth in Sec. 41.3 and with the standards for determining who are 
handicapped persons set forth in subpart B of this part; and
    (2) Prohibit discriminatory practices against qualified handicapped 
persons in employment and in the provision of aid, benefits, or 
services, consistent with the guidelines set forth in subpart C of this 
part.

The regulation shall include, where appropriate, specific provisions 
adapted to the particular programs and activities receiving financial 
assistance from the agency.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.5  Enforcement.

    (a) Each agency shall establish a system for the enforcement of 
section 504 and its implementing regulation with respect to the programs 
and activities to which it provides assistance. The system shall 
include:
    (1) The enforcement and hearing procedures that the agency has 
adopted for the enforcement of title VI of the Civil Rights Act of 1964, 
and
    (2) A requirement that recipients sign assurances of compliance with 
section 504.
    (b) Each agency regulation shall also include requirements that 
recipients:
    (1) Notify employees and beneficiaries of their rights under section 
504,
    (2) Conduct a self-evaluation of their compliance with section 504, 
with the assistance of interested persons, including handicapped persons 
or organizations representing handicapped persons, and

[[Page 705]]

    (3) Otherwise consult with interested persons, including handicapped 
persons or organizations representing handicapped persons, in achieving 
compliance with section 504.



Sec. 41.6  Interagency cooperation.

    (a) Where each of a substantial number of recipients is receiving 
assistance for similar or related purposes from two or more agencies or 
where two or more agencies cooperate in administering assistance for a 
given class of recipients, the agencies shall:
    (1) Coordinate compliance with section 504, and
    (2) Designate one of the agencies as the primary agency for section 
504 compliance purposes.
    (b) Any agency conducting a compliance review or investigating a 
com- pliant of an alleged section 504 violation shall notify any other 
affected agency upon discovery of its jurisdiction and shall inform it 
of the findings made. Reviews or investigations may be made on a joint 
basis.



Sec. 41.7  Coordination with sections 502 and 503.

    (a) Agencies shall consult with the Architectural and Transportation 
Barriers Compliance Board in developing requirements for the 
accessibility of new facilities and alterations, as required in 
Sec. 41.58, and shall coordinate with the Board in enforcing such 
requirements with respect to facilities that are subject to section 502 
of the Rehabilitation Act of 1973, as amended, as well as to section 
504.
    (b) Agencies shall coordinate with the Department of Labor in 
enforcing requirements concerning employment discriminination with 
respect to recipients that are also federal contractors subject to 
section 503 of the Rehabilitation Act of 1973, as amended.



    Subpart B--Standards for Determining Who Are Handicapped Persons



Sec. 41.31  Handicapped person.

    (a) Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    (b) As used in paragraph (a) of this section, the phrase:
    (1) Physical or mental impairment means:
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.

The term ``physical or mental impairment'' includes, but is not limited 
to, such diseases and conditions as orthopedic, visual, speech, and 
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, and drug addiction and alcoholism.
    (2) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means:
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by a recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (b)(1) of 
this section but is treated by a recipient as having such an impairment.



Sec. 41.32  Qualified handicapped person.

    Qualified handicapped person means:

[[Page 706]]

    (a) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question and
    (b) With respect to services, a handicapped person who meets the 
essential eligibility requirements for the receipt of such services.



     Subpart C--Guidelines for Determining Discriminatory Practices

                                 General



Sec. 41.51  General prohibitions against discrimination.

    (a) No qualified handicapped person, shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity that receives or benefits from federal financial assistance.
    (b)(1) A recipient, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or service to beneficiaries of the recipient's program;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) A recipient may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped persons 
to discrimination on the basis of handicap,
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program 
with respect to handicapped persons, or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
agencies of the same state.
    (4) A recipient may not, in determining the site or location of a 
facility, make selections:
    (i) That have the effect of excluding handicapped persons from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives or benefits 
from federal financial assistance or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by federal statute or executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by federal statute or executive order to

[[Page 707]]

a different class of handicapped persons is not prohibited by this part.
    (d) Recipients shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
    (e) Recipients shall take appropriate steps to ensure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.

                               Employment



Sec. 41.52  General prohibitions against employment discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be subjected to discrimination in employment under any program or 
activity that receives or benefits from federal financial assistance.
    (b) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (c) The prohibition against discrimination in employment applies to 
the following activities:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including social or recreational 
programs; and
    (9) Any other term, condition, or privilege of employment.
    (d) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this paragraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeship programs.



Sec. 41.53  Reasonable accommodation.

    A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program.



Sec. 41.54  Employment criteria.

    A recipient may not use employment tests or criteria that 
discriminate against handicapped persons and shall ensure that 
employment tests are adapted for use by persons who have handicaps that 
impair sensory, manual, or speaking skills.



Sec. 41.55  Preemployment inquiries.

    A recipient may not conduct a preemployment medical examination or 
make a preemployment inquiry as to whether an applicant is a handicapped 
person or as to the nature or severity of a handicap except under the 
circumstances described in 28 CFR 42.513.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]

                          Program Accessibility



Sec. 41.56  General requirement concerning program accessibility.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, be 
denied the

[[Page 708]]

benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity that receives 
or benefits from federal financial assistance.



Sec. 41.57  Existing facilities.

    (a) A recipient shall operate each program or activity so that the 
program or activity, when viewed in its entirety, is readily accessible 
to and usable by handicapped persons. This paragraph does not 
necessarily require a recipient to make each of its existing facilities 
or every part of an existing facility accessible to and usable by 
handicapped persons.
    (b) Where structural changes are necessary to make programs or 
activities in existing facilities accessible, such changes shall be made 
as soon as practicable, but in no event later than three years after the 
effective date of the agency regulation: Provided, That, if the program 
is a particular mode of transportation (e.g., a subway system) that can 
be made accessible only through extraordinarily expensive structural 
changes to, or replacement of, existing facilities and if other 
accessible modes of transportation are available, the federal agency 
responsible for enforcing section 504 with respect to that program may 
extend this period of time, but only for a reasonable and definite 
period, such period to be set forth in the agency's regulation.
    (c) In the event that structural changes to facilities are necessary 
to meet the requirement of paragraph (a) of this section, a recipient 
shall develop, within a definite period to be established in each 
agency's regulation, a transition plan setting forth the steps necessary 
to complete such changes. The plan shall be developed with the 
assistance of interested persons, including handicapped persons or 
organizations representing handicapped persons.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]

    Effective Date Note: At Order No. 1301-88, 53 FR 37754, Sept. 28, 
1988, the application of Sec. 41.57(b) to public housing timeframes was 
suspended.



Sec. 41.58  New construction.

    (a) Except as provided in paragraph (b) of this section, new 
facilities shall be designed and constructed to be readily accessible to 
and usable by handicapped persons. Alterations to existing facilities 
shall, to the maximum extent feasible, be designed and constructed to be 
readily accessible to and usable by handicapped persons.
    (b) The Department of Transportation may defer the effective date 
for requiring all new buses to be accessible if it concludes on the 
basis of its section 504 rulemaking process that it is not feasible to 
require compliance on the effective date of its regulation: Provided, 
That comparable, accessible services are available to handicapped 
persons in the interim and that the date is not deferred later than 
October 1, 1979.

Appendix A to Part 41--Leadership and Coordination of Nondiscrimination 
                                  Laws

                   Executive Order 12250, Nov. 2, 1980

    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:

[[Page 709]]

    (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.
    1-202. In furtherance of the Attorney General's responsibility for 
the coordination of the implementation and enforcement of the 
nondiscrimination provisions of laws covered by this Order, the Attorney 
General shall review the existing and proposed rules, regulations, and 
orders of general applicability of the Executive agencies in order to 
identify those which are inadequate, unclear or unnecessarily 
inconsistent.
    1-203. The Attorney General shall develop standards and procedures 
for taking enforcement actions and for conducting investigations and 
compliance reviews.
    1-204. The Attorney General shall issue guidelines for establishing 
reasonable time limits on efforts to secure voluntary compliance, on the 
initiation of sanctions, and for referral to the Department of Justice 
for enforcement where there is noncompliance.
    1-205. The Attorney General shall establish and implement a schedule 
for the review of the agencies' regulations which implement the various 
nondiscrimination laws covered by this Order.
    1-206. The Attorney General shall establish guidelines and standards 
for the development of consistent and effective recordkeeping and 
reporting requirements by Executive agencies; for the sharing and 
exchange by agencies of compliance records, findings, and supporting 
documentation; for the development of comprehensive employee training 
programs; for the development of effective information programs; and for 
the development of cooperative programs with State and local agencies, 
including sharing of information, deferring of enforcement activities, 
and providing technical assistance.
    1-207. The Attorney General shall initiate cooperative programs 
between and among agencies, including the development of sample 
memoranda of understanding, designed to improve the coordination of the 
laws covered by this Order.

    1-3. Implementation by the Attorney General.

    1-301. In consultation with the affected agencies, the Attorney 
General shall promptly prepare a plan for the implementation of this 
Order. This plan shall be submitted to the Director of the Office of 
Management and Budget.
    1-302. The Attorney General shall periodically evaluate the 
implementation of the nondiscrimination provisions of the laws covered 
by this Order, and advise the heads of the agencies concerned on the 
results of such evaluations as to recommendations for needed improvement 
in implementation or enforcement.
    1-303. The Attorney General shall carry out his functions under this 
Order, including the issuance of such regulations as he deems necessary, 
in consultation with affected agencies.
    1-304. The Attorney General shall annually report to the President 
through the Director of the Office of Management and Budget on the 
progress in achieving the purposes of this Order. This report shall 
include any recommendations for changes in the implementation or 
enforcement of the nondiscrimination provisions of the laws covered by 
this Order.
    1-305. The Attorney General shall chair the Interagency Coordinating 
Council established by section 507 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 794c).

    1-4. Agency Implementation.

    1-401. Each Executive agency shall cooperate with the Attorney 
General in the performance of the Attorney General's functions under 
this Order and shall, unless prohibited by law, furnish such reports and 
information as the Attorney General may request.
    1-402. Each Executive agency responsible for implementing a 
nondiscrimination provision of a law covered by this Order shall issue 
appropriate implementing directives (whether in the nature of 
regulations or policy guidance). To the extent permitted by law, they 
shall be consistent with the requirements prescribed by the Attorney 
General pursuant to this Order and shall be subject to the approval of 
the Attorney General, who may require that some or all of them be 
submitted for approval before taking effect.
    1-403. Within 60 days after a date set by the Attorney General, 
Executive agencies shall submit to the Attorney General their plans for 
implementing their responsibilities under this Order.

    1-5. General Provisions.

    1-501. Executive Order No. 11764 is revoked. The present regulations 
of the Attorney General relating to the coordination of enforcement of 
title VI of the Civil Rights Act of 1964 shall continue in effect until 
revoked or modified (28 CFR 42.401 to 42.415).
    1-502. Executive Order No. 11914 is revoked. The present regulations 
of the Secretary of Health and Human Services relating to the 
coordination of the implementation of section 504 of the Rehabilitation 
Act of 1973, as

[[Page 710]]

amended, shall be deemed to have been issued by the Attorney General 
pursuant to this Order and shall continue in effect until revoked or 
modified by the Attorney General.
    1-503. Nothing in this Order shall vest the Attorney General with 
the authority to coordinate the implementation and enforcement by 
Executive agencies of statutory provisions relating to equal employment.
    1-504. Existing agency regulations implementing the 
nondiscrimination provisions of laws covered by this Order shall 
continue in effect until revoked or modified.
Jimmy Carter
The White House,
    November 2, 1980.

[47 FR 32421, July 27, 1982]



PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES AND PROCEDURES--Table of Contents




Subpart A--Equal Employment Opportunity Within the Department of Justice

Sec.
42.1  Policy.
42.2  Designation of Director of Equal Employment Opportunity and 
          Complaint Adjudication Officer.
42.3  Responsibility for Department of Justice Equal Opportunity 
          Recruitment Program.

                          Subpart B [Reserved]

      Subpart C--Nondiscrimination in Federally Assisted Programs--
       Implementation of Title VI of the Civil Rights Act of 1964

42.101  Purpose.
42.102  Definitions.
42.103  Application of this subpart.
42.104  Discrimination prohibited.
42.105  Assurance required.
42.106  Compliance information.
42.107  Conduct of investigations.
42.108  Procedure for effecting compliance.
42.109  Hearings.
42.110  Decisions and notices.
42.111  Judicial review.
42.112  Effect on other regulations; forms and instructions.

Appendix A to Subpart C--Federal Financial Assistance Administered by 
          the Department of Justice to Which This Subpart Applies

      Subpart D--Nondiscrimination in Federally Assisted Programs--
 Implementation of Section 815(c)(1) of the Justice System Improvement 
                               Act of 1979

42.201  Purpose and application.
42.202  Definitions.
42.203  Discrimination prohibited.
42.204  Applicants' obligations.
42.205  Complaint investigation.
42.206  Compliance reviews.
42.207  Compliance information.
42.208  Notice of noncompliance.
42.209  Compliance secured.
42.210  Compliance not secured.
42.211  Resumption of suspended funds.
42.212  Preliminary hearing.
42.213  Full hearing.
42.214  Judicial review.
42.215  Other actions authorized under the JSIA.

Appendix A to Subpart D--Commentary

       Subpart E--Equal Employment Opportunity Program Guidelines

42.301  Purpose.
42.302  Application.
42.303  Evaluation of employment opportunities.
42.304  Written equal employment opportunity program.
42.305  Recordkeeping and certification.
42.306  Guidelines.
42.307  Obligations of recipients.
42.308  Noncompliance.

    Subpart F--Coordination of Enforcement of Non-discrimination in 
                       Federally Assisted Programs

42.401  Purpose and application.
42.402  Definitions.
42.403  Agency regulations.
42.404  Guidelines.
42.405  Public dissemination of title VI information.
42.406  Data and information collection.
42.407  Procedures to determine compliance.
42.408  Complaint procedures.
42.409  Employment practices.
42.410  Continuing State programs.
42.411  Methods of resolving noncompliance.
42.412  Coordination.
42.413  Interagency cooperation and delegations.
42.414  Federal agency staff.
42.415  Federal agency title VI enforcement plan.

[[Page 711]]

  Subpart G--Nondiscrimination Based on Handicap in Federally Assisted 
  Programs--Implementation of Section 504 of the Rehabilitation Act of 
                                  1973

                           General Provisions

42.501  Purpose.
42.502  Application.
42.503  Discrimination prohibited.
42.504  Assurances required.
42.505  Administrative requirements for recipients.

                               Employment

42.510  Discrimination prohibited.
42.511  Reasonable accommodation.
42.512  Employment criteria.
42.513  Preemployment inquiries.

                          Program Accessibility

42.520  Discrimination prohibited.
42.521  Existing facilities.
42.522  New construction.

                               Procedures

42.530  Procedures.

                               Definitions

42.540  Definitions.

                         Appendixes to Subpart G

Appendix A--Federal Financial Assistance Administered by the Department 
          of Justice to Which This Subpart Applies
Appendix B [Reserved]
Appendix C--Department Regulations Under Title VI of the Civil Rights 
          Act of 1964 (28 CFR 42.106-42.110) Which Apply to This Subpart 
          [Note]
Appendix D--OJARS' Regulations Under the Omnibus Crime Control and Safe 
          Streets Act, as Amended, Which Apply to This Subpart (28 CFR 
          42.205 and 42.206) [Note]

Subpart H--Procedures for Complaints of Employment Discrimination Filed 
           Against Recipients of Federal Financial Assistance

42.601  Purpose and application.
42.602  Exchange of information.
42.603  Confidentiality.
42.604  Standards for investigation, reviews and hearings.
42.605  Agency processing of complaints of employment discrimination.
42.606  General rules concerning EEOC action on complaints.
42.607  EEOC dismissals of complaints.
42.608  Agency action on complaints dismissed by EEOC.
42.609  EEOC reasonable cause determination and conciliation efforts.
42.610  Agency enforcement of unresolved complaints.
42.611  EEOC negotiated settlements and conciliation agreements.
42.612  Interagency consultation.
42.613  Definitions.

 Subpart I--Nondiscrimination on the Basis of Age in Federally Assisted 
Programs and Activities; Implementation of the Age Discrimination Act of 
                                  1975

                           General Provisions

42.700  Purpose.
42.701  Application.
42.702  Definitions.
42.703-42.709  [Reserved]

              Standards for Determining Age Discrimination

42.710  General prohibition.
42.711  Exception; authorized by law.
42.712  Exception; normal operation or statutory objective.
42.713  Exception; reasonable factors other than age.
42.714  Special benefits.
42.715  Burden of proof regarding exceptions.
42.716-42.719  [Reserved]

                          Duties of Recipients

42.720  General responsibility.
42.721  Notice to subrecipients.
42.722  Recipient assessment of age distinctions.
42.723  Compliance information.
42.724  Remedial and affirmative action.
42.725  Assurance of compliance.
42.726-42.729  [Reserved]

                          Compliance Procedures

42.730  Compliance reviews.
42.731  Complaints.
42.732  Prohibition against intimidation.
42.733  Enforcement procedures.
42.734  Alternative funding.
42.735  Judicial review.
42.736  Private lawsuits.
42.737-42.799  [Reserved]

Appendix A to Subpart I of Part 42--Federal Financial Assistance 
          Administered by the Department of Justice to Which This 
          Subpart Applies
Appendix B to Subpart I of Part 42--Age Distinctions in Federal Statutes 
          or Regulations Affecting Financial Assistance Administered by 
          the Department of Justice


[[Page 712]]





Subpart A--Equal Employment Opportunity Within the Department of Justice

    Authority: 5 U.S.C. 301, 28 U.S.C. 509, 510; E.O. 11246, 3 CFR 1964-
1965 Comp., p. 339; E.O. 11478, 3 CFR 1966-1970 Comp., p. 803.



Sec. 42.1  Policy.

    (a) It is the policy of the Department of Justice to seek to 
eliminate discrimination on the basis of race, color, religion, sex, 
sexual orientation, national origin, marital status, political 
affiliation, age, or physical or mental handicap in employment within 
the Department and to assure equal employment opportunity for all 
employees and applicants for employment.
    (b) No person shall be subject to retaliation for opposing any 
practice prohibited by the above policy or for participating in any 
stage of administrative or judicial proceedings related to this policy.

[Order No. 2037-96, 61 FR 34730, July 3, 1996; 61 FR 43119, Aug. 20, 
1996]



Sec. 42.2  Designation of Director of Equal Employment Opportunity and Complaint Adjudication Officer.

    (a) In compliance with the regulations of the Equal Employment 
Opportunity Commission (29 CFR 1613.204(c)), the Assistant Attorney 
General for Administration is hereby designated as Director of Equal 
Employment Opportunity for the Department of Justice with 
responsibilities for administration of the Equal Employment Opportunity 
Program within the Department. The Director of Equal Employment 
Opportunity shall publish and implement the Department of Justice 
regulations, which shall include a positive action program to eliminate 
causes of discrimination and shall include procedures for processing 
complaints of discrimination within the Department.
    (b) The Assistant Attorney General in charge of the Civil Rights 
Division shall appoint a Complaint Adjudication Officer, who shall 
render final decisions for the Department of Justice on complaints of 
discrimination filed by employees and applicants for employment in the 
Department pursuant to the Department's Equal Employment Opportunity 
Regulations. In rendering decisions, the Complaint Adjudication Officer 
shall order such remedial action as may be appropriate, whether or not 
there is a finding of discrimination, but in cases where no 
discrimination is found any remedial action ordered shall have the prior 
approval of the Assistant Attorney General in charge of the Civil Rights 
Division, who shall consult with the Deputy Attorney General on the 
matter.

[Order No. 420-69, 34 FR 12281, July 25, 1969, as amended by Order No. 
721-77, 42 FR 25725, May 19, 1977; Order No. 731-77, 42 FR 35646, July 
11, 1977; Order No. 899-80, 45 FR 43703, June 30, 1980; Order No. 960-
81, 46 FR 52357, Oct. 27, 1981]



Sec. 42.3  Responsibility for Department of Justice Equal Opportunity Recruitment Program.

    The Assistant Attorney General for Administration shall be 
responsible for establishing and implementing the Department of Justice 
Equal Opportunity Recruitment Program under 5 U.S.C. 7201.

[Order No. 865-79, 44 FR 77157, Dec. 31, 1979, as amended by Order No. 
960-81, 46 FR 52357, Oct. 27, 1981]



                          Subpart B [Reserved]



      Subpart C--Nondiscrimination in Federally Assisted Programs--
    Implementation of Title VI of the Civil Rights Act of 19641
---------------------------------------------------------------------------

    1See also 28 CFR 50.3. Guidelines for enforcement of Title VI, 
Civil Rights Act.
---------------------------------------------------------------------------

    Authority: 42 U.S.C. 2000d-2000d-4; E.O. 12250, 45 FR 72995, 3 CFR, 
1980 Comp., p. 298.

    Source: Order No. 365-66, 31 FR 10265, July 29, 1966, unless 
otherwise noted.



Sec. 42.101   Purpose.

    The purpose of this subpart is to implement the provisions of title 
VI of the Civil Rights Act of 1964, 78 Stat. 252 (hereafter referred to 
as the ``Act''), to the end 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 otherwise be subjected

[[Page 713]]

to discrimination under any program or activity receiving Federal 
financial assistance from the Department of Justice.



Sec. 42.102   Definitions.

    As used in this subpart--
    (a) The term responsible Department official with respect to any 
program receiving Federal financial assistance means the Attorney 
General, or Deputy Attorney General, or such other official of the 
Department as has been assigned the principal responsibility within the 
Department for the administration of the law extending such assistance.
    (b) The term United States includes the several States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and 
all other territories and possessions of the United States, and the term 
State includes any one of the foregoing.
    (c) The term Federal financial assistance includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (d) The term program includes any program, project, or activity for 
the provision of services, financial aid, or other benefits to 
individuals (including education or training, rehabilitation, or other 
services or disposition, whether provided through employees of the 
recipient of Federal financial assistance or provided by others through 
contracts or other arrangements with the recipient, and including work 
opportunities and cash or loan or other assistance to individuals), or 
for the provision of facilities for furnishing services, financial aid, 
or other benefits to individuals. The disposition, services, financial 
aid, or benefits provided under a program receiving Federal financial 
assistance shall be deemed to include any disposition, services, 
financial aid, or benefits provided with the aid of Federal financial 
assistance or with the aid of any non-Federal funds, property, or other 
resources required to be expended or made available for the program to 
meet matching requirements or other conditions which must be met in 
order to receive the Federal financial assistance, and to include any 
disposition, services, financial aid, or benefits provided in or through 
a facility provided with the aid of Federal financial assistance or such 
non-Federal resources.
    (e) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration, or acquisition of facilities.
    (f) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assign, or transferee thereof, but such term 
does not include any ultimate beneficiary under any such program.
    (g) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient for the purpose of carrying out a program.
    (h) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible Department 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term application means such an 
application, request, or plan.
    (i) The term academic institution includes any school, academy, 
college, university, institute, or other association, organization, or 
agency conducting or administering any program,

[[Page 714]]

project, or facility designed to educate or train individuals.
    (j) The term disposition means any treatment, handling, decision, 
sentencing, confinement, or other prescription of conduct.
    (k) The term governmental organization means the political 
subdivision for a prescribed geographical area.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52357, Oct. 
27, 1981]



Sec. 42.103   Application of this subpart.

    This subpart applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department. It 
applies to money paid, property transferred, or other Federal financial 
assistance extended under any such program after the date of this 
subpart pursuant to an application whether approved before or after such 
date. This subpart does not apply to:
    (a) Any Federal financial assistance by way of insurance or guaranty 
contracts, or
    (b) Employment practices except to the extent described in 
Sec. 42.104(c).

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.104   Discrimination prohibited.

    (a) General. 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 otherwise subjected to discrimination 
under any program to which this subpart applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient 
under any program to which this subpart applies may not, directly or 
through contractual or other arrangements, on the ground of race, color, 
or national origin:
    (i) Deny an individual any disposition, service, financial aid, or 
benefit provided under the program;
    (ii) Provide any disposition, service, financial aid, or benefit to 
an individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any disposition, service, financial 
aid, or benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any disposition, 
service, financial aid, or benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership, or other requirement or condition which individuals must 
meet in order to be provided any disposition, service, financial aid, 
function or benefit provided under the program; or
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program as 
an employee but only to the extent set forth in paragraph (c) of this 
section).
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the type of disposition, services, 
financial aid, benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such will be provided under any such program, or the class of 
individuals to be afforded an opportunity to participate in any such 
program, may not, directly or through contractual or other arrangements, 
utilize 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.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits

[[Page 715]]

of, or subjecting them to discrimination under any program to which this 
subpart applies, on the ground of race, color, or national origin; or 
with the purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this subpart.
    (4) For the purposes of this section the disposition, services, 
financial aid, or benefits provided under a program receiving Federal 
financial assistance shall be deemed to include any portion of any 
program or function or activity conducted by any recipient of Federal 
financial assistance which program, function, or activity is directly or 
indirectly improved, enhanced, enlarged, or benefited by such Federal 
financial assistance or which makes use of any facility, equipment or 
property provided with the aid of Federal financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph and in paragraph (c) of this section does not limit 
the generality of the prohibition in paragraph (a) of this section.
    (6)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color, or national origin.
    (c) Employment practices. (1) Whenever a primary objective of the 
Federal financial assistance to a program to which this subpart applies, 
is to provide employment, a recipient of such assistance may not 
(directly or through contractual or other arrangements) subject any 
individual to discrimination on the ground of race, color, or national 
origin in its employment practices under such program (including 
recruitment or recruitment advertising, employment, layoff, or 
termination, upgrading, demotion, or transfer, rates of pay or other 
forms of compensation, and use of facilities). That prohibition also 
applies to programs as to which a primary objective of the Federal 
financial assistance is (i) to assist individuals, through employment, 
to meet expenses incident to the commencement or continuation of their 
education or training, or (ii) to provide work experience which 
contributes to the education or training of the individuals involved. 
The requirements applicable to construction employment under any such 
program shall be those specified in or pursuant to part III of Executive 
Order 11246 or any Executive order which supersedes it.
    (2) In regard to Federal financial assistance which does not have 
providing employment as a primary objective, the provisions of paragraph 
(c)(1) of this section apply to the employment practices of the 
recipient if discrimination on the ground of race, color, or national 
origin in such employment practices tends, on the ground of race, color, 
or national origin, to exclude persons from participation in, to deny 
them the benefits of or to subject them to discrimination under the 
program receiving Federal financial assistance. In any such case, the 
provisions of paragraph (c)(1) of this section shall apply to the extent 
necessary to assure equality of opportunity to and nondiscriminatory 
treatment of beneficiaries.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.105   Assurance required.

    (a) General. (1) Every application for Federal financial assistance 
to carry out a program to which this subpart applies, and every 
application for Federal financial assistance to provide a facility 
shall, as a condition to its approval and the extension of any Federal 
financial assistance pursuant to the application, contain or be 
accompanied by an assurance that the program will be conducted or the 
facility operated in compliance with all requirements imposed by or 
pursuant to this subpart. In the case where the Federal financial 
assistance is to provide or is in the form of personal property, or real 
property or interest therein or structures thereon, such assurance shall 
obligate the recipient, or, in

[[Page 716]]

the case of a subsequent transfer, the transferee, for the period during 
which the property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. In all 
other cases, such assurance shall obligate the recipient for the period 
during which Federal financial assistance is extended pursuant to the 
application. The responsible Department official shall specify the form 
of the foregoing assurances for each program, and the extent to which 
like assurances will be required of subgrantees, contractors, and 
subcontractors, transferees, successors in interest, and other 
participants in the program. Any such assurance shall include provisions 
which give the United States a right to seek its judicial enforcement.
    (2) In the case of real property, structures or improvements 
thereon, or interest therein, which was acquired through a program of 
Federal financial assistance, or in the case where Federal financial 
assistance is provided in the form of a transfer of real property or 
interest therein from the Federal Government, the instrument effecting 
or recording the transfer shall contain a convenant running with the 
land assuring nondiscrimination for the period during which the real 
property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits. Where no transfer of property is involved, 
but property is improved under a program of Federal financial 
assistance, the recipient shall agree to include such a covenant in any 
subsequent transfer of such property. Where the property is obtained 
from the Federal Government, such covenant may also include a condition 
coupled with a right to be reserved by the Department to revert title to 
the property in the event of a breach of the covenant where, in the 
discretion of the responsible Department official, such a condition and 
right of reverter are appropriate to the program under which the real 
property is obtained and to the nature of the grant and the grantee.
    (b) Assurances from government agencies. In the case of any 
application from any department, agency, or office of any State or local 
government for Federal financial assistance for any specified purpose, 
the assurance required by this section, shall extend to any other 
department, agency, or office of the same governmental unit if the 
policies of such other department, agency, or office will substantially 
affect the project for which Federal financial assistance is requested. 
That requirement may be waived by the responsible Department official if 
the applicant establishes, to the satisfaction of the responsible 
Department official, that the practices in other agencies of parts or 
programs of the governmental unit will in no way affect:
    (1) Its practices in the program for which Federal financial 
assistance is sought, or
    (2) The beneficiaries of or participants in or persons affected by 
such program, or
    (3) Full compliance with the subpart as respects such program.
    (c) Assurance from academic and other institutions. (1) In the case 
of any application for Federal financial assistance for any purpose to 
an academic institution, the assurance required by this section shall 
extend to admission practices and to all other practices relating to the 
treatment of students.
    (2) The assurance required with respect to an academic institution, 
detention or correctional facility, or any other institution or 
facility, insofar as the assurance relates to the institution's 
practices with respect to admission or other treatment of individuals as 
students, patients, wards, inmates, persons subject to control, or 
clients of the institution or facility or to the opportunity to 
participate in the provision of services, disposition, treatment, or 
benefits to such individuals, shall be applicable to the entire 
institution or facility unless the applicant establishes, to the 
satisfaction of the responsible Department official, that the practices 
in designated parts or programs of the institution or facility will in 
no way affect its practices in the program of the institution or 
facility for which Federal financial assistance

[[Page 717]]

is sought, or the beneficiaries of or participants in such program. If, 
in any such case, the assistance sought is for the construction of a 
facility or part of a facility, the assurance shall in any event extend 
to the entire facility and to facilities operated in connection 
therewith.
    (d) Continuing State programs. Any State or State agency 
administering a program which receives continuing Federal financial 
assistance subject to this regulation shall as a condition for the 
extension of such assistance:
    (1) Provide a statement that the program is (or, in the case of a 
new program, will be) conducted in compliance with this regulation, and
    (2) Provide for such methods of administration as are found by the 
responsible Department official to give reasonable assurance that the 
primary recipient and all other recipients of Federal financial 
assistance under such program will comply with this regulation.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.106   Compliance information.

    (a) Cooperation and assistance. Each responsible Department official 
shall, to the fullest extent practicable, seek the cooperation of 
recipients in obtaining compliance with this subpart and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this subpart.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible Department official or his designee timely, 
complete, and accurate compliance reports at such times, and in such 
form and containing such information, as the responsible Department 
official or his designee may determine to be necessary to enable him to 
ascertain whether the recipient has complied or is complying with this 
subpart. In general, recipients should have available for the Department 
racial and ethnic data showing the extent to which members of minority 
groups are beneficiaries of federally assisted programs. In the case of 
any program under which a primary recipient extends Federal financial 
assistance to any other recipient or subcontracts with any other person 
or group, such other recipient shall also submit such compliance reports 
to the primary recipient as may be necessary to enable the primary 
recipient to carry out its obligations under this subpart.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Department official or his designee during 
normal business hours to such of its books, records, accounts, and other 
sources of information, and its facilities, as may be pertinent to 
ascertain compliance with this subpart. Whenever any information 
required of a recipient is in the exclusive possession of any other 
agency, institution, or person and that agency, institution, or person 
fails or refuses to furnish that information, the recipient shall so 
certify in its report and set forth the efforts which it has made to 
obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
subpart and its applicability to the program under which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the responsible Department official 
finds necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this subpart.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.107   Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Department official 
or his designee shall from time to time review the practices of 
recipients to determine whether they are complying with this subpart.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this subpart may by himself or by a representative file with the 
responsible Department official or his designee a written complaint. A 
complaint must be filed not later than 180 days from the date of the

[[Page 718]]

alleged discrimination, unless the time for filing is extended by the 
responsible Department official or his designee.
    (c) Investigations. The responsible Department official or his 
designee will make a prompt investigation whenever a compliance review, 
report, complaint, or any other information indicates a possible failure 
to comply with this subpart. The investigation should include, whenever 
appropriate, a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible noncompliance with 
this subpart occurred, and other factors relevant to a determination as 
to whether the recipient has failed to comply with this subpart.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
subpart, the responsible Department official or his designee will so 
inform the recipient and the matter will be resolved by informal means 
whenever possible. If it has been determined that the matter cannot be 
resolved by informal means, action will be taken as provided for in 
Sec. 42.108.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the responsible Department official or 
his designee will so inform the recipient and the complainant, if any, 
in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this subpart, or because 
he has made a complaint, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under this subpart. 
The identity of complainants shall be kept confidential except to the 
extent necessary to carry out the purpose of this subpart, including the 
conduct of any investigation, hearing, or judicial proceeding arising 
thereunder.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.108   Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this subpart and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, the responsible 
Department official may suspend or terminate, or refuse to grant or 
continue, Federal financial assistance, or use any other means 
authorized by law, to induce compliance with this subpart. Such other 
means include, but are not limited to:
    (1) Appropriate proceedings brought by the Department to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with assurance requirement. If an applicant or 
recipient fails or refuses to furnish an assurance required under 
Sec. 42.105, or fails or refuses to comply with the provisions of the 
assurance it has furnished, or otherwise fails or refuses to comply with 
any requirement imposed by or pursuant to title VI or this subpart, 
Federal financial assistance may be suspended, terminated, or refused in 
accordance with the procedures of title VI and this subpart. The 
Department shall not be required to provide assistance in such a case 
during the pendency of administrative proceedings under this subpart, 
except that the Department will continue assistance during the pendency 
of such proceedings whenever such assistance is due and payable pursuant 
to a final commitment made or an application finally approved prior to 
the effective date of this subpart.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The responsible Department official has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means,
    (2) There has been an express finding on the record, after 
opportunity for

[[Page 719]]

hearing, of a failure by the applicant or recipient to comply with a 
requirement imposed by or pursuant to this subpart,
    (3) The action has been approved by the Attorney General pursuant to 
Sec. 42.110, and
    (4) The expiration of 30 days after the Attorney General has filed 
with the committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action.

Any action to suspend or terminate or to refuse to grant or to continue 
Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until:
    (1) The responsible Department official has determined that 
compliance cannot be secured by voluntary means,
    (2) The action has been approved by the Attorney General, and
    (3) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance.



Sec. 42.109   Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 42.108(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. That notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for that action. The notice 
shall (1) Fix a date, not less than 20 days after the date of such 
notice, within which the applicant or recipient may request that the 
responsible Department official schedule the matter for hearing, or (2) 
advise the applicant or recipient that a hearing concerning the matter 
in question has been scheduled and advise the applicant or recipient of 
the place and time of that hearing. The time and place so fixed shall be 
reasonable and shall be subject to change for cause. The complainant, if 
any, shall be advised of the time and place of the hearing. An applicant 
or recipient may waive a hearing and submit written information and 
argument for the record. The failure of an applicant or recipient to 
request a hearing under this paragraph or to appear at a hearing for 
which a date has been set shall be deemed to be a waiver of the right to 
a hearing afforded by section 602 of the Act and Sec. 42.108(c) and 
consent to the making of a decision on the basis of such information as 
is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, DC, at a time fixed by the responsible 
Department official, unless he determines that the convenience of the 
applicant or recipient or of the Department requires that another place 
be selected. Hearings shall be held before the responsible Department 
official or, at his discretion, before a hearing examiner designated in 
accordance with 5 U.S.C. 3105 and 3344 (section 11 of the Administrative 
Procedure Act).
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and 
in accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing.

[[Page 720]]

    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this subpart, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied whenever 
reasonably necessary by the officer conducting the hearing. The hearing 
officer may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record shall be open to examination by the parties and opportunity shall 
be given to refute facts and arguments advanced on either side of the 
issues. A transcript shall be made of the oral evidence except to the 
extent the substance thereof is stipulated for the record. All decisions 
shall be based upon the hearing record and written findings shall be 
made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this subpart 
with respect to two or more programs to which this subpart applies, or 
noncompliance with this subpart and the regulations of one or more other 
Federal Departments or agencies issued under title VI of the Act, the 
Attorney General may, by agreement with such other departments or 
agencies, whenever appropriate, provide for the conduct of consolidated 
or joint hearings, and for the application to such hearings of rules of 
procedure not inconsistent with this subpart. Final decisions in such 
cases, insofar as this subpart is concerned, shall be made in accordance 
with Sec. 42.110.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.110   Decisions and notices.

    (a) Decisions by person other than the responsible Department 
official. If the hearing is held by a hearing examiner, such hearing 
examiner shall either make an initial decision, if so authorized, or 
certify the entire record, including his recommended findings and 
proposed decision, to the responsible Department official for a final 
decision, and a copy of such initial decision or certification shall be 
mailed to the applicant or recipient. Whenever the initial decision is 
made by the hearing examiner, the applicant or recipient may, within 30 
days of the mailing of such notice of initial decision, file with the 
responsible Department official his exceptions to the initial decision, 
with his reasons therefor. In the absence of exceptions, the responsible 
Department official may on his own motion, within 45 days after the 
initial decision, serve on the applicant or recipient a notice that he 
will review the decision. Upon filing of such exceptions, or of such 
notice of review, the responsible Department official shall review the 
initial decision and issue his own decision thereon including the 
reasons therefor. In the absence of either exceptions or a notice of 
review the initial decision shall constitute the final decision of the 
responsible Department official.
    (b) Decisions on the record or on review by the responsible 
Department official. Whenever a record is certified to the responsible 
Department official for decision or he reviews the decision of a hearing 
examiner pursuant to paragraph (a) of this section, or whenever the 
responsible Department official conducts the hearing, the applicant or 
recipient shall be given a reasonable opportunity to file with him 
briefs or other written statements of its contentions, and a copy of the 
final decision of the responsible Department official shall be given in 
writing to the applicant or recipient and to the complainant, if any.
    (c) Decisions on the record whenever a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 42.109(a), a decision shall be made 
by the responsible Department official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or 
responsible Department official shall set forth his ruling on each 
findings, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this subpart with 
which it is found that the applicant or recipient has failed to comply.
    (e) Approval by Attorney General. Any final decision of a 
responsible Department official (other than the Attorney

[[Page 721]]

General) which provides for the suspension or termination of, or the 
refusal to grant or continue Federal financial assistance, or the 
imposition of any other sanction available under this subpart or the 
Act, shall promptly be transmitted to the Attorney General, who may 
approve such decision, vacate it, or remit or mitigate any sanction 
imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue, Federal financial 
assistance, in whole or in part, under the program involved, and may 
contain such terms, conditions, and other provisions as are consistent 
with, and will effectuate the purposes of, the Act and this subpart, 
including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such program to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance given by it pursuant to this subpart, or 
to have otherwise failed to comply with this subpart, unless and until, 
it corrects its noncompliance and satisfies the responsible Department 
official that it will fully comply with this subpart.
    (g) Post-termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this subpart and provides reasonable assurance that it will fully comply 
with this subpart.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Department official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the applicant or 
recipient has met the requirements of paragraph (g)(1) of this section. 
If the responsible Department official denies any such request, the 
applicant or recipient may submit a request for a hearing in writing, 
specifying why it believes such official to have been in error. It shall 
thereupon be given an expeditious hearing, with a decision on the 
record, in accordance with rules of procedure issued by the responsible 
Department official. The applicant or recipient will be restored to such 
eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (g)(1) of this section. While proceedings 
under this paragraph are pending, sanctions imposed by the order issued 
under paragraph (f) of this section shall remain in effect.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17956, July 5, 1973]



Sec. 42.111   Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec. 42.112   Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. Nothing in this subpart shall be 
deemed to supersede any provision of subpart A or B of this part or 
Executive Order 11114 or 11246, as amended, or of any other regulation 
or instruction which prohibits discrimination on the ground of race, 
color, or national origin in any program or situation to which this 
subpart is inapplicable, or which prohibits discrimination on any other 
ground.
    (b) Forms and instructions. Each responsible Department official, 
other than the Attorney General or Deputy Attorney General, shall issue 
and promptly make available to interested persons forms and detailed 
instructions and procedures for effectuating this subpart as applied to 
programs to which this subpart applies and for which he is responsible.
    (c) Supervision and coordination. The Attorney General may from time 
to time assign to officials of the Department, or to officials of other 
departments or agencies of the Government, with the consent of such 
departments or agencies, responsibilities in connection with the 
effectuation of the purposes of title VI of the Act and this subpart 
(other than responsibility for final decision as provided in 
Sec. 42.110(e)), including the achievement of the effective coordination 
and maximum uniformity within the Department and

[[Page 722]]

within the Executive Branch of the Government in the application of 
title VI of the Act and this subpart to similar programs and in similar 
situations. Any action taken, determination made, or requirement imposed 
by an official of another Department or agency acting pursuant to an 
assignment of responsibility under this subsection shall have the same 
effect as though such action had been taken by the Attorney General.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17956, July 5, 1973; Order No. 568-74, 39 FR 18646, May 
29, 1974]

 Appendix A to Subpart C--Federal Financial Assistance Administered by 
         the Department of Justice to Which This Subpart Applies

    Note: Failure to list a type of Federal assistance in appendix A 
shall not mean, if title VI is otherwise applicable, that a program is 
not covered.

    1. Assistance provided by the Office of Justice Programs (OJP), the 
Bureau of Justice Assistance (BJA), the National Institute of Justice 
(NIJ), the Bureau of Justice Statistics (BJS), and the Office of 
Juvenile Justice and Delinquency Prevention (OJJDP), including block, 
formula, and discretionary grants, victim compensation payments, and 
victim assistance grants (title I of the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701-3796, as amended (Pub. L. 90-351, as 
amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-
503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473); the Juvenile 
Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601-5751, as 
amended (Pub. L. 93-415, as amended by Pub. L. 94-503, Pub. L. 95-115, 
Pub. L. 96-509, and Pub. L. 98-473); the Victims of Crime Act of 1984, 
42 U.S.C. 10601-10604, (Pub. L. 98-473)).
    2. Assistance provided by the Bureau of Prisons (BOP) including 
technical assistance to State and local governments for improvement of 
correctional systems; training of law enforcement personnel, and 
assistance to legal services programs (18 U.S.C. 4042).
    3. Assistance provided by the National Institute of Corrections 
(NIC) including training, grants, and technical assistance to State and 
local governments, public and private agencies, educational 
institutions, organizations and individuals, in the area of corrections 
(18 U.S.C. 4351-4353).
    4. Assistance provided by the Drug Enforcement Administration (DEA) 
including training, joint task forces, information sharing agreements, 
cooperative agreements, and logistical support, primarily to State and 
local government agencies (21 U.S.C. 871-886).
    5. Assistance provided by the Community Relations Service (CRS) in 
the form of discretionary grants to public and private agencies under 
the Cuban-Haitian Entrant Program (title V of the Refugee Education 
Assistance Act of 1980, Pub. L. 96-422).
    6. Assistance provided by the U.S. Parole Commission in the form of 
workshops and training programs for State and local agencies and public 
and private organizations (18 U.S.C. 4204).
    7. Assistance provided by the Federal Bureau of Investigation (FBI) 
including field training, training through its National Academy, 
National Crime Information Center, and laboratory facilities, primarily 
to State and local criminal justice agencies (Omnibus Crime Control and 
Safe Streets Act of 1968, as amended 42 U.S.C. 3701-3796).
    8. Assistance provided by the Immigration and Naturalization Service 
(INS) including training and services primarily to State and local 
governments under the Alien Status Verification Index (ASVI); and 
citizenship textbooks and training primarily to schools and public and 
private service agencies (8 U.S.C. 1360, 8 U.S.C. 1457).
    9. Assistance provided by the United States Marshals Service through 
its Cooperative Agreement Program for improvement of State and local 
correctional facilities (Pub. L. 99-180, 99 Stat. 1142).
    10. Assistance provided by the Attorney General through the 
Equitable Transfer of Forfeited Property Program (Equitable Sharing) 
primarily to State and local law enforcement agencies (21 U.S.C. 
881(e)).
    11. Assistance provided by the Department of Justice participating 
agencies that conduct specialized training through the National Center 
for State and Local Law Enforcement Training, a component of the Federal 
Law Enforcement Training Center (FLETC), Glenco, Georgia (Pursuant to 
Memorandum Agreement with the Department of Treasury).

[Order No. 1204-87, 52 FR 24449, July 1, 1987]



      Subpart D--Nondiscrimination in Federally Assisted Programs--
 Implementation of Section 815(c)(1) of the Justice System Improvement 
                               Act of 1979

    Authority: Secs. 802(a), 815(c), and 817(d) of the Justice System 
Improvement Act of 1979, 42 U.S.C. 3701, et seq., as amended (Pub. L. 
90-351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-503, and 
Pub. L. 96-157 (December 27, 1979) (JSIA) and Sec. 262 of the Juvenile 
Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C. 
5672

[[Page 723]]

(Pub. L. 93-415, as amended by Pub. L. 95-115)).

    Source: 45 FR 28705, Apr. 30, 1980, unless otherwise noted.



Sec. 42.201  Purpose and application.

    (a) The purpose of this subpart is to implement the provisions of 
section 815(c) of the Justice System Improvement Act of 1979 (42 U.S.C. 
3789d(c); title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d; and 
title IX of the Education Amendments of 1972, 20 U.S.C. 1681, et seq., 
to the end that no person in any State shall on the ground of race, 
color, national origin, sex, or religion be excluded from participation 
in, be denied the benefits of, be subjected to discrimination under, or 
be denied employment in connection with any program or activity funded 
in whole or in part with funds made available under either the Justice 
System Improvement Act or the Juvenile Justice Act by the Law 
Enforcement Assistance Administration, the National Institute of 
Justice, or the Bureau of Justice Statistics. These regulations also 
implement Executive Order 12138, which requires all Federal agencies 
awarding financial assistance to take certain steps to advance women's 
business enterprise.
    (b) The regulations in this subpart apply to the delivery of 
services by, and employment practices of recipients administering, 
participating in, or substantially benefiting from any program or 
activity receiving Federal financial assistance extended under the 
Justice System Improvement Act of 1979, or the Juvenile Justice and 
Delinquency Prevention Act of 1974, as amended.
    (c) Where a private recipient which receives such assistance through 
a unit of government is engaged in prohibited discrimination, the Office 
of Justice Assistance, Research, and Statistics will invoke the 
enforcement procedures of this subpart (Sec. 42.208, et seq.) against 
the appropriate unit of government for failure to enforce the assurances 
of nondiscrimination given it by the private recipient pursuant to 
Sec. 42.204(a). Where a private recipient receives assistance either 
directly from the Law Enforcement Assistance Administration, the 
National Institute of Justice, or the Bureau of Justice Statistics or 
through another private entity which receives funds directly from one of 
those agencies, compliance will be enforced pursuant to section 803(a) 
of the Justice System Improvement Act.



Sec. 42.202  Definitions.

    (a) JSIA means the Justice System Improvement Act of 1979, Public 
Law 96-157, 42 U.S.C. 3701, et seq.
    (b) Juvenile Justice Act means title I and II of the Juvenile 
Justice and Delinquency Prevention Act of 1974, Public Law 93-415, as 
amended by Public Law 94-503 and Public Law 95-115.
    (c) OJARS or Office means the Office of Justice Assistance, 
Research, and Statistics.
    (d) LEAA means the Law Enforcement Assistance Administration.
    (e) NIJ means the National Institute of Justice.
    (f) BJS means the Bureau of Justice Statistics.
    (g) Employment practices means all terms and conditions of 
employment including but not limited to, all practices relating to the 
screening, recruitment, referral, selection, training, appointment, 
promotion, demotion, and assignment of personnel, and includes 
advertising, hiring, assignments, classification, discipline, layoff and 
termination, upgrading, transfer, leave practices, rate of pay, fringe 
benefits, or other forms of pay or credit for services rendered and use 
of facilities.
    (h) Investigation includes fact-finding efforts and, pursuant to 
Sec. 42.205(c)(3), attempts to secure the voluntary resolution of 
complaints.
    (i) Compliance review means a review of a recipient's selected 
employment practices or delivery of services for compliance with the 
provisions of section 815(c)(1) of the Justice System Improvement Act, 
or this subpart.
    (j) Noncompliance means the failure of a recipient to comply with 
section 815(c)(1) of the Justice System Improvement Act, or this 
subpart.
    (k) Program or activity means the operation of the agency or 
organizational unit of government receiving or substantially benefiting 
from financial assistance awarded, e.g., a police department or 
department of corrections.

[[Page 724]]

    (l) Pattern or practice means any procedure, custom, or act 
affecting or potentially affecting, more than a single individual in a 
single or isolated instance.
    (m) Religion includes all aspects of religious observance and 
practice as well as belief.
    (n) Recipient means any State or local unit of government or agency 
thereof, and any private entity, institution, or organization, to which 
Federal financial assistance is extended directly, or through such 
government or agency, but such term does not include any ultimate 
beneficiary of such assistance.
    (o) State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands;
    (p) Unit of local government means any city, county, township, town, 
borough, parish, village or other general purpose political subdivision 
of a State, an Indian tribe which performs law enforcement functions as 
determined by the Secretary of the Interior, or, for the purpose of 
assistance eligiblity, any agency of the District of Columbia government 
or the U.S. Government performing law enforcement functions in and for 
the District of Columbia;
    (q) Combination as applied to States or units of local government 
means any grouping or joining together of such States or units for the 
purpose of preparing, developing, or implementing a criminal justice 
program or project;
    (r) Criminal justice council or CJC means the agency designated by a 
State to perform the functions listed in section 402(b)(1) of the 
Justice System Improvement Act.
    (s) All masculine terms such as he, his, and him should be construed 
to mean their respective feminine counterparts, she, hers, and her, 
where appropriate.

[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]



Sec. 42.203  Discrimination prohibited.

    (a) No person in any State shall on the ground of race, color, 
religion, national origin, or sex be excluded from participation in, be 
denied the benefits of, be subjected to discrimination under, or denied 
employment in connection with any program or activity funded in whole or 
in part with funds made available under the JSIA or the Juvenile Justice 
Act.
    (b) A recipient may not, directly or through contractual or other 
arrangements, on the grounds set forth in paragraph (a) of this section:
    (1) Deny an individual any disposition, service, financial aid, or 
benefit provided under the program;
    (2) Provide any disposition, service, financial aid, or benefit to 
an individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any disposition, service, financial 
aid, or benefit under the program;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any disposition, 
service, or financial aid or benefit under the program;
    (5) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership, or other requirement or condition which individuals must 
meet in order to be provided any disposition, service, financial aid, 
function, or benefit provided under the program;
    (6) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program;
    (7) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program;
    (8) Subject any individual to physical abuse or summary punishment, 
or deny any individual the rights guaranteed by the Constitution to all 
persons;
    (9) Subject any individual to discrimination in its employment 
practices in connection with any program or activity funded in whole or 
in part with funds made available under the JSIA or the Juvenile Justice 
Act;
    (10) Use any selection device in a manner which is inconsistent with 
the

[[Page 725]]

Department of Justice Uniform on Employee Selection Guidelines, 28 CFR 
50.14.
    (c) In matters involving employment discrimination, section 
815(c)(1) of the JSIA shall be interpreted by the Office consistently 
with title VII of the Civil Rights Act of 1964, Public Law 88-352, 79 
Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 
Public Law 92-261, 87 Stat. 103, and the Pregnancy Discrimination Act, 
Public Law 95-555, 92 Stat. 2076.
    (d) The use of a minimum height or weight requirement which operates 
to disproportionately exclude women and persons of certain national 
origins, such as persons of Hispanic or Asian descent, is a violation of 
this subpart, unless the recipient is able to demonstrate convincingly, 
through use of supportive factual data, that the requirement has been 
validated as set forth in the Department of Justice Guidelines on 
Employee Selection Procedures, 28 CFR 50.14.
    (e) A recipient, in determining the type of disposition, services, 
financial aid, benefits, or facilities which will be provided under any 
program, or the class of individuals to whom, or the situations in 
which, such will be provided under any program, may not directly or 
through contractual or other arrangements, utilize criteria or methods 
of administration which have the effect of subjecting individuals to 
discrimination under section 815(c)(1) of the JSIA, or have the effect 
of defeating or substantially impairing accomplishment of the objectives 
of the program as respects individuals of a particular race, color, sex, 
national origin, or religion.
    (f) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, subjecting 
them to discrimination under, or denying them employment in connection 
with any program or activity to which this subpart applies; or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the JSIA, the Juvenile Justice Act, 
or this subpart.
    (g) For the purposes of this section, the disposition, services, 
financial aid, or benefits provided under a program or activity 
receiving Federal financial assistance shall be deemed to include any 
portion of any program or function or activity conducted by any 
recipient of Federal financial assistance which program, function, or 
activity is directly or indirectly improved, enhanced, enlarged, or 
benefited by such Federal financial assistance or which makes use of any 
facility, equipment, or property provided with the aid of Federal 
financial assistance.
    (h) The enumeration of specific forms of prohibited discrimination 
in paragraphs (b) through (g) of this section does not limit the 
generality of the prohibition in paragraph (a) of this section.
    (i)(1) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
religion, national origin, or sex, the recipient must take affirmative 
action to overcome the effects of prior discrimination.
    (2) Even in the absence of such prior discrimination, a recipient in 
administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color, religion, national origin, or sex.
    (j) Nothing contained in this subpart shall be construed as 
requiring any recipient to adopt a percentage ratio, quota system, or 
other program to achieve racial balance. The use of goals and timetables 
is not use of a quota prohibited by this section.

[45 FR 28705, Apr. 30, 1980, as amended at 45 FR 54036, Aug. 14, 1980]



Sec. 42.204  Applicants' obligations.

    (a) Every application for Federal financial assistance to which this 
subpart applies shall, as a condition of approval of such application 
and the extension of any Federal financial assistance pursuant to such 
application, contain or be accompanied by an assurance that the 
applicant will comply with all applicable nondiscrimination requirements 
and will obtain such assurances from its subgrantees, contractors, or 
subcontractors to which this subpart applies, as a condition of the

[[Page 726]]

extension of Federal financial assistance to them.
    (b) Every unit of State or local government and every agency of such 
unit that applies for a grant of $500,000 or more under the JSIA or the 
Juvenile Justice Act, must submit a copy of its current Equal Employment 
Opportunity Program (if required to develop one under 28 CFR 42.301, et. 
seq.) to OJARS at the same time it submits its grant application. No 
application for $500,000 or more will be approved until OJARS has 
approved the applicant's EEOP.
    (c) Every application for Federal financial assistance from a State 
or local unit of government or agency thereof shall contain an assurance 
that in the event a Federal or State court or Federal or State 
administrative agency makes a finding of discrimination after a due 
process hearing, on the ground of race, color, religion, national 
origin, or sex against the recipient State or local government unit, or 
agency, the recipient will forward a copy of the finding to the 
appropriate CJC and to OJARS.

[45 FR 28705, Apr. 30, 1980, as amended at 45 FR 54037, Aug. 14, 1980]



Sec. 42.205  Complaint investigation.

    (a) The Office shall investigate complaints filed by or on behalf of 
an individual claiming to be aggrieved, that allege a violation of 
section 815(c)(1) of the JSIA, or this subpart.
    (b) No complaint will be investigated if it is received more than 
one year after the date of the alleged discrimination, unless the time 
for filing is extended by the Director of OJARS for good cause shown.
    (c) The Office shall conduct investigations of complaints as 
follows:
    (1) Within 21 days of receipt of a complaint, the Office shall:
    (i) Ascertain whether it had jurisdiction under paragraphs (a) and 
(b) of this section;
    (ii) If jurisdiction is found, notify the recipient alleged to be 
discriminating of its receipt of the complaint; and
    (iii) Initiate the investigation.
    (2) The investigation will ordinarily be initiated by a letter 
requesting data pertinent to the complaint and advising the recipient 
of:
    (i) The nature of the complaint, and, with the written consent of 
the complainant, the identity of the complainant;
    (ii) The programs or activities affected by the complaint;
    (iii) The opportunity to make, at any time prior to receipt of the 
Office's preliminary findings, a documentary submission, responding to, 
rebutting, or denying the allegations made in the complaint; and
    (iv) The schedule under which the complaint will be investigated and 
a determination of compliance or non-compliance made.

Copies of this letter will also be sent to the chief executive of the 
appropriate unit(s) of government, and to the appropriate CJC.
    (3) Within 150 days or, where an on-site investigation is required, 
within 175 days after the initiation of the investigation, the Office 
shall advise the complainant, the recipient, the chief executive(s) of 
the appropriate unit(s) of government, and the appropriate CJC of:
    (i) Its investigative findings;
    (ii) Where appropriate, its recommendations for compliance; and
    (iii) If it is likely that satisfactory resolution of the complaint 
can be obtained, the recipient's opportunity to request the Office to 
engage in voluntary compliance negotiations prior to the Director of 
OJARS' determination of compliance or non-compliance.
    (4) If, within 30 days, the Office's recommendations for compliance 
are not met, or voluntary compliance is not secured, the matter will be 
forwarded to the Director of OJARS for a determination of compliance or 
non-compliance. The determination shall be made no later than 14 days 
after the conclusion of the 30-day period. If the Director makes a 
determination of non-compliance with section 815(c)(1) of the JSIA, the 
Office shall institute administrative proceedings pursuant to 
Sec. 42.208 et seq.
    (5) If the complainant or another party, other than the Attorney 
General, has filed suit in Federal or State court alleging the same 
discrimination alleged in a complaint to OJARS, and, during OJARS' 
investigation, the trial of that suit would be in progress,

[[Page 727]]

OJARS will suspend its investigation and monitor the litigation through 
the court docket and, where necessary, contacts with the complainant. 
Upon receipt of notice that the court has made a finding of a pattern or 
practice of discrimination within the meaning of Sec. 42.208, the Office 
will institute administrative proceedings pursuant to Sec. 42.208, et 
seq. Upon receipt of notice that the court has made a finding affecting 
only the complainant, the Office will adopt the findings of the court as 
its investigative findings pursuant to Sec. 42.205(c)(3).
    (6) The time limits listed in paragraphs (c)(1) through (c)(5) of 
this section shall be appropriately adjusted where OJARS requests 
another Federal agency or another branch of the Department of Justice to 
act on the complaint. OJARS will monitor the progress of the matter 
through liaison with the other agency. Where the request to act does not 
result in timely resolution of the matter, OJARS will institute 
appropriate proceedings pursuant to this section.

[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]



Sec. 42.206  Compliance reviews.

    (a) The Office shall periodically conduct:
    (1) Pre-award compliance reviews of all applicants requesting a 
grant from LEAA, NIJ, or BJS for $500,000 or more; and
    (2) Post-award compliance reviews of selected recipients of LEAA, 
NIJ, or BJS assistance.
    (b) Pre-award reviews. The Office shall review selected formula, 
discretionary, and national priority applications for $500,000 or more 
in order to determine whether the application presents a possibility of 
discrimination in the services to be performed under the grant, or in 
the employment practices of the applicant. In those instances where it 
finds such a possibility, the Office shall special condition, disapprove 
or take other action with respect to the application to assure that the 
project complies with section 815(c)(1) of the JSIA.
    (c) Post-award reviews. The Office shall seek to review those 
recipients which appear to have the most serious equal employment 
opportunity problems, or the greatest disparity in the delivery of 
services to the minority and non-minority or male and female communities 
they serve. Selection for review shall be made on the basis of:
    (1) The relative disparity between the percentage of minorities, or 
women, in the relevant labor market, and the percentage of minorities, 
or women, employed by the recipient;
    (2) The percentage of women and minorities in the population 
receiving program benefits;
    (3) The number and nature of discrimination complaints filed against 
a recipient with OJARS or other Federal agencies;
    (4) The scope of the problems revealed by an investigation commenced 
on the basis of a complaint filed with the Office against a recipient or 
by a pre-award compliance review; and
    (5) The amount of assistance provided to the recipient.
    (d) Within 15 days after selection of a recipient for review, the 
Office shall inform the recipient that it has been selected and will 
initiate the review. The review will ordinarily be initiated by a letter 
requesting data pertinent to the review and advising the recipient of:
    (1) The practices to be reviewed;
    (2) The programs or activities affected by the review;
    (3) The opportunity to make, at any time prior to receipt of the 
Office's investigative findings, a documentary submission responding to 
the Office, explaining, validating, or otherwise addressing the 
practices under review; and
    (4) The schedule under which the review will be conducted and a 
determination of compliance or non-compliance made.

Copies of this letter will also be sent to the chief executive of the 
appropriate unit(s) of government, and to the appropriate CJC.
    (e) Within 150 days or, where an on-site investigation is required, 
within 175 days after the initiation of the review, the Office shall 
advise the recipient, the chief executive(s) of the appropriate unit(s) 
of government, and the appropriate CJC, of:
    (1) Its investigative findings;
    (2) Where appropriate, its recommendations for compliance; and

[[Page 728]]

    (3) The opportunity to request the Office to engage in voluntary 
compliance negotiations prior to the Director of OJARS' determination of 
compliance or noncompliance.
    (f) If, within 30 days, the Office's recommendations for compliance 
are not met, or voluntary compliance is not secured, the Director of 
OJARS shall make a determination of compliance or non-compliance. The 
determination shall be made no later than 14 days after the conclusion 
of the 30-day negotiation period. If the Director makes a determination 
of non-compliance with section 815(c) of the JSIA, the Office shall 
institute administrative proceedings pursuant to Sec. 42.208, et seq. 

[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]



Sec. 42.207  Compliance information.

    (a) Each recipient shall:
    (1) Keep such records, and submit to OJARS such timely, complete, 
and accurate information as OJARS may request to determine whether the 
recipient is complying with section 815(c)(1) of the JSIA; and
    (2) Permit reasonable access by OJARS to its books, documents, 
papers, and records, to the extent necessary to determine whether the 
recipient is complying with section 815(c)(1) of the JSIA.
    (b) Failure to comply with Sec. 42.207(a) shall subject the 
recipient to the sanctions provided in section 803(a) of the JSIA, 42 
U.S.C. 3783(a).



Sec. 42.208  Notice of noncompliance.

    (a) Whenever the Office has:
    (1) Received notice of a finding, after notice and opportunity for a 
hearing by:
    (i) A Federal court (other than in an action brought by the Attorney 
General under section 815(c)(3) of the JSIA);
    (ii) A State court; or
    (iii) A Federal or State administrative agency (other than the 
Office under paragraph (a)(2) of this section); to the effect that there 
has been a pattern or practice of discrimination in violation of section 
815(c)(1) of the JSIA; or
    (2) Made a determination after an investigation by the Office 
pursuant to Sec. 42.205 or Sec. 42.206 of this subpart that a State 
government or unit of general local government, or agency thereof, is 
not in compliance with this subpart, or section 815(c)(1) of the JSIA, 
or this subpart: the Office shall, within 10 days after such occurrence, 
notify the chief executive of the affected State and, if the action 
involves a unit of general local government, the chief executive of such 
unit of general local government, that such program or activity has been 
so found or determined not to be in compliance with this subpart or 
section 815(c)(1) of the JSIA or this subpart, and shall request each 
chief executive notified under this section with respect to such 
violation to secure compliance.
    (b) For the purposes of this section, notice means:
    (1) Publication in--
    (i) Employment Practices Decisions, Commerce Clearinghouse, Inc.;
    (ii) Fair Employment Practices, Bureau of National Affairs, Inc.;
    (iii) The United States Law Week, Bureau of National Affairs, Inc.; 
or
    (iv) Federal Supplement, Federal Reporter, or Supreme Reporter, West 
Publishing Company; or
    (2) Receipt by the Office of a reliable copy of a pattern or 
practice finding, made after a due process hearing from any source.
    (c) When the Office receives notice of a finding which has been made 
more than 120 days prior to receipt, the Office will determine if the 
finding is currently applicable.
    (1) In determining the current applicability of the finding, the 
Office will contact the clerk of the court and the office of the 
deciding judge (or the appropriate agency official) to determine whether 
any subsequent orders have been entered.
    (2) If the information is unavailable through the clerk or the 
office of the judge (or the appropriate agency official), the Office 
will contact the attorneys of record for both the plaintiff and 
defendant to determine whether any subsequent orders have been entered, 
or if the recipient is in compliance.
    (3) If, within 10 days of receipt of notice, it is not determined 
through the procedures set forth in paragraphs (c)(1) and (2) of this 
section, that the

[[Page 729]]

recipient is in full compliance with a final order of the court (or 
agency) within the meaning of Sec. 42.211(b), the Office will notify the 
appropriate chief executive of the recipient's noncompliance as provided 
in Sec. 42.208(a).
    (d) For purposes of paragraph (a)(1)(iii) of this section a finding 
by a Federal or State administrative agency shall be deemed rendered 
after notice and opportunity for a hearing if it is rendered pursuant to 
procedures consistent with the provisions of subchapter II of chapter 5, 
title 5, U.S. Code (the Administrative Procedures Act).
    (e) The procedures of a Federal or State administrative agency shall 
be deemed to be consistent with the Administrative Procedure Act (APA) 
if:
    (1) The agency gives all interested parties opportunity for--
    (i) The submission and consideration of facts, arguments, offers of 
settlement, or proposals of adjustment when time, the nature of the 
proceeding, and the public interest permit; and
    (ii) Hearing on notice, and a decision by an individual who did not 
participate in the investigation or prosecution of the matter.
    (2) A party is entitled to be represented by counsel or other 
qualified representative, to present his case or defense by oral or 
documentary evidence, to submit rebuttal evidence, and to conduct such 
cross-examination as may be required for a full and true disclosure of 
the facts; and
    (3) The record shows the ruling on each finding, conclusion, or 
exception presented. All decisions, including initial recommended, and 
tentative decisions, shall be a part of the record and shall include a 
statement of--
    (i) Findings and conclusions, and the reasons or basis therefor, on 
all the material issues of fact, law, or discretion presented on the 
record; and
    (ii) The appropriate rule, order, sanction, relief, or definal 
thereof.
    (f) If within 10 days of receipt of notice the Office cannot 
determine whether the finding was rendered pursuant to procedures 
consistent with the APA, it shall presume the APA procedures were 
applied, and send notification under Sec. 42.208(a) to the appropriate 
chief executive(s).
    (g) Each notification under Sec. 42.208(a) shall advise the 
appropriate chief executive of:
    (1) The program or activity determined to be in noncompliance;
    (2) The general legal and factual basis for its determination;
    (3) The Office's request to secure compliance;
    (4) The action to be taken by the Office and the provisions of law 
under which the proposed action is to be taken should the chief 
executive fail to secure compliance; and
    (5) The right of the recipient to request a preliminary hearing, 
pursuant to Sec. 42.212, and a full hearing, pursuant to Sec. 42.213.



Sec. 42.209  Compliance secured.

    (a) In the event a chief executive secures compliance after notice 
pursuant to Sec. 42.208, the terms and conditions with which the 
affected State government or unit of general local government agrees to 
comply shall be set forth in writing and signed by the chief executive 
of the State, by the chief executive of such unit (in the event of a 
violation by a unit of general local government), and by the Director of 
OJARS.
    (b) Prior to the effective date of the agreement, the Office shall 
send a copy of the agreement to each complainant, if any, with respect 
to such violation, and to the appropriate CJC.
    (c) The chief executive of the State, or the chief executive of the 
unit (in the event of a violation by a unit of general local government) 
shall file semi-annual reports with the Office detailing the steps taken 
to comply with the agreement.
    (d) Within 15 days of receipt of such reports, the Office shall send 
a copy to each complainant, if any.
    (e) The Director of OJARS shall also determine a recipient to be in 
compliance if it complies fully with the final order or judgement of a 
Federal or State court, pursuant to Sec. 42.211 (a)(2) and (b), or if 
found by such court to be in compliance with section 815(c)(1).



Sec. 42.210  Compliance not secured.

    (a) If, at the conclusion of 90 days after notification of 
noncompliance with section 815(c)(1):

[[Page 730]]

    (1) Compliance has not been secured by the chief executive of that 
State or the chief executive of that unit of general local government; 
and
    (2) An administrative law judge has not made a determination under 
Sec. 42.212 that it is likely the State government or unit of local 
government will prevail on the merits;

the Office shall notify the Attorney General that compliance has not 
been secured and shall cause to have suspended further payment of any 
funds under the JSIA or Juvenile Justice Act, as appropriate, to the 
specific program or activity in which the noncompliance has been found.
    (b) If a hearing is requested pursuant to Sec. 42.213, the 
suspension of funds shall be effective for a period of not more than 30 
days after the conclusion of the hearing, or in the absence of a hearing 
under Sec. 42.213, funds shall be suspended for not more than 120 days, 
unless there has been an express finding by the Director of OJARS after 
notice and opportunity for such a hearing, that the recipient is not in 
compliance with section 815(c)(1) of the JSIA, or this subpart.



Sec. 42.211  Resumption of suspended funds.

    (a) Payment of suspended funds made available under the JSIA or the 
Juvenile Justice Act shall resume only if--
    (1) Such State government or unit of general local government enters 
into a compliance agreement signed by the Director of OJARS in 
accordance with Sec. 42.209;
    (2) Such State government or unit of general local government:
    (i) Complies fully with the final order or judgment of a Federal or 
State court, if that order or judgement covers all matters raised by the 
Director of OJARS in the notice pursuant to Sec. 42.208, or
    (ii) Is found to be in compliance with section 815(c)(1) of the JSIA 
by such court;
    (3) After a hearing, the Director of OJARS, pursuant to Sec. 42.213, 
finds that noncompliance has not been demonstrated; or
    (4) An administrative law judge has determined, under Sec. 42.212, 
that it is likely that the State government or unit of local government 
will prevail on the merits.
    (b) Full compliance with a court order, for the purposes of 
paragraph (2) of this section, includes the securing of an agreement to 
comply over a period of time, particularly in complex cases or where 
compliance would require an extended period of time for implementation.



Sec. 42.212  Preliminary hearing.

    (a) Prior to the suspension of funds under Sec. 42.210(a), but 
within the 90-day period after notification under Sec. 42.208, the State 
government or unit of local government may request an expedited 
preliminary hearing on the record in accordance with 5 U.S.C. 554 in 
order to determine whether it is likely that the State government or 
unit of local government would, at a full hearing under Sec. 42.213, 
prevail on the merits on the issue of the alleged noncompliance.
    (b) The preliminary hearing shall be initiated within 30 days of 
request. The ALJ shall make his finding within 15 days after the 
conclusion of the preliminary hearing.



Sec. 42.213  Full hearing.

    (a) At any time after notification of noncompliance under 
Sec. 42.208, but before the conclusion of the 120-day suspension period 
referred to in Sec. 42.210, a State government or unit of general local 
government may request a hearing on the record in accordance with 5 
U.S.C. 554 in order to contest the findings of determination of 
noncompliance made under Sec. 42.208. The Office shall initiate the 
hearing within 60 days of request.
    (b) Within 30 days after the conclusion of the hearing, or, in the 
absence of a hearing, at the conclusion of the 120-day period referred 
to in Sec. 42.210, the Director of OJARS shall make a finding of 
compliance or noncompliance.
    (1) If the Director makes a finding of noncompliance, the Director 
shall:
    (i) Notify the Attorney General in order that the Attorney General 
may institute a civil action under section 815(c)(3) of the JSIA;
    (ii) Cause to have terminated the payment of funds under the JSIA 
and/or the Juvenile Justice Act; and

[[Page 731]]

    (iii) If appropriate, seek repayment of funds.
    (2) If the Director makes a finding of compliance, payment of the 
suspended funds and reconsideration of applications shall resume.



Sec. 42.214  Judicial review.

    Any State government or unit of general local government aggrieved 
by a final determination of the Office under Sec. 42.213 may appeal such 
determination as provided in section 805 of the JSIA.



Sec. 42.215  Other actions authorized under the JSIA.

    (a) The Director of OJARS may, at any time, request the Attorney 
General to file suit to enforce compliance with section 815(c)(1). OJARS 
will monitor the litigation through the court docket and liaison with 
the Civil Rights Division of the Department of Justice. Where the 
litigation does not result in timely resolution of the matter, and funds 
have not been suspended pursuant to Sec. 42.215(b), OJARS will institute 
administrative proceedings unless enjoined from doing so by the court.
    (b)(1) Whenever the Attorney General files a civil action alleging a 
pattern or practice of discriminatory conduct on the basis of race, 
color, religion, national origin, or sex in any program or activity of a 
State government or unit of local government which State government or 
unit of local government receives funds made available under the JSIA or 
the Juvenile Justice Act and the conduct allegedly violates or would 
violate the provisions of this subpart or section 815(c)(1) of the JSIA 
and neither party within 45 days after such filing has been granted such 
preliminary relief with regard to the suspension or payment of funds as 
may otherwise be available by law, the Director of OJARS shall suspend 
further payment of any funds under the JSIA and the Juvenile Justice Act 
to that specific program or activity alleged by the Attorney General to 
be in violation of the provisions of section 815(c)(1) of the JSIA until 
such time as the court orders resumption of payment.
    (2) The Office expects that preliminary relief authorized by this 
subsection will not be granted unless the party making application for 
such relief meets the standards for a preliminary injunction.
    (c)(1) Whenever a State government or unit of local government or 
any officer or employee thereof acting in an official capacity, has 
engaged or is engaging in any act or practice prohibited by section 
815(c)(1) of the JSIA, a civil action may be instituted after exhaustion 
of administrative remedies by the person aggrieved in an appropriate 
U.S. District Court or in a State court or general jurisdiction.
    (2) Administrative remedies shall be deemed to be exhausted upon the 
expiration of 60 days after the date the administrative complaint was 
filed with the Office or any other administrative enforcement agency, 
unless within such period there has been a determination by the Office 
or the agency on the merits of the complaint, in which case such 
remedies shall be deemed exhausted at the time the determination becomes 
final.
    (3) The Attorney General, or a specifically designated assistant for 
or in the name of the United States may intervene upon timely 
application in any civil action brought to enforce compliance with 
section 815(c)(1) of the JSIA if he certifies that the action is of 
general public importance. In such action the United States shall be 
entitled to the same relief as if it had instituted the action.

                   Appendix A to Subpart D--Commentary

    Section 42.201(c). The compliance enforcement mechanism of section 
815(c)(2) applies by its terms to State and local government. The 
prohibitions in section 815(c)(1), however, apply to all recipients of 
OJARS assistance. Accordingly, where a private entity which has received 
LEAA, NIJ, or BJS assistance through a State or local unit of government 
is determined by OJARS to be in non-compliance, OJARS will invoke the 
section 815(c)(2) mechanism against the appropriate unit of government 
for its failure to enforce the assurances of compliance given it by the 
private recipient, unless the unit has initiated its own compliance 
action against the private recipient. The fund termination procedures of 
section 803(a) will be invoked against non-complying private recipients 
which receive assistance directly from LEAA, NIJ, or BJS, or through 
another private entity.

[[Page 732]]

    Section 42.202(g). Section 815(c)(1) of the JSIA limits suspension 
and termination of assistance in the event of noncompliance to the 
``programs or activity'' in which the noncompliance is found. The phrase 
``program or activity'' was first used in section 815(c)(1) of the Crime 
Control Act of 1976, the substantially identical predecessor to section 
815(c)(1).
    House Report No. 94-1155 (94th Congress, 2d Session), at p. 26, 
explained the provision as follows:
    ``Suspension may be limited to the specific program or activity 
found to have discriminated, rather than all of the recipients' LEAA 
funds.
    ``For example, if discriminatory employment practices in a city's 
police department were cited in the notification, LEAA may only suspend 
that part of the city's payments which fund the police department. LEAA 
may not suspend the city's LEAA funds which are used in the city courts, 
prisons, or juvenile justice agencies.''

This passage makes it clear that OJARS need not demonstrate a nexus 
between the particular project funded and the discriminatory activity. 
See Lau v. Nichols, 414 U.S. 563, 566 (1974).
    Sections 42.203(b) and 42.203(e-i). These provisions are derived 
from 28 CFR 42.104(b) of subpart C of the Department of Justice 
Nondiscrimination Regulations. Where appropriate ``sex'' and 
``religion'' have been added as prohibited grounds of discrimination, 
and ``denial of employment'' as another activity within the scope of 
section 815(c)(1).
    Individual projects benefiting a particular sex, race, or ethnic 
group are not violative of section 815(c)(1) unless the granting agency 
or the recipient has engaged in a pattern of granting preferential 
treatment to one such group, and cannot justify the preference on the 
basis of a compelling governmental interest, in the case of racial or 
ethnic discrimination, or a substantial relationship to an important 
governmental function, in the case of sex discrimination.
    Section 42.203(b)(10). On August 25, 1978, the Department of 
Justice, the Equal Employment Opportunity Commission, the Department of 
Labor and the then-Civil Service Commission published the Uniform 
Employee Selection Guidelines codified at 28 CFR 50.14. Since OJARS is a 
component of the Department, these guidelines are applicable to the 
selection procedures of LEAA, NIJ, and BJS recipients. See 44 FR 11996 
(March 2, 1979) for a detailed commentary on the guidelines.
    Section 42.203(c). In the Conference Report on section 518(c) of the 
Crime Control Act (the substantially identical predecessor of section 
815(c)), the managers stated that ``In the area of employment cases 
brought under this section, it is intended by the conferees that the 
standards of title VII of the Civil Rights Act of 1964 apply.'' H. Rept. 
No. 94-1723 (94th Cong., 2d Sess.) at p. 32.
    This section makes the OJARS standards of employment discrimination 
consistent with those used by the Civil Rights Division of the 
Department of Justice. It further clarifies that the burden shifts to 
the employer to validate its selection procedures once OJARS has 
demonstrated that those procedures disproportionately exclude an 
affected class. Discriminatory purpose on the part of the employer, 
which must be shown before the burden shifts in a Fourteenth Amendment 
case such as Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976), 
need not be shown in an employment discrimination case brought under 
section 815(c)(1).
    Section 42.203(j). Section 815(b) of the JSIA reads:
    ``Notwithstanding any other provision of law, nothing contained in 
this title shall be construed to authorize the National Institute of 
Justice, the Bureau of Justice Statistics, or the Law Enforcement 
Assistance Administration (1) to require, or condition the availability 
or amount of a grant upon the adoption by an applicant or grantee under 
this title of a percentage ratio, quota system, or other program to 
achieve racial balance in any criminal justice agency; or (2) to deny or 
discontinue a grant because of the refusal of an applicant or grantee 
under this title to adopt such a ratio, system, or other program.''
    In commenting on the Crime Control Act of 1976, Senator Roman Hruska 
of Nebraska explained the difference between quotas and goals and 
timetables as follows:
    ``Section 518(b) [now 815(b)] of the act prohibits the setting of 
quotas. This provision was unchanged, and this provision will still bind 
the Administration.
    ``LEAA does have an affirmative obligation under this law to seek to 
eliminate discriminatory practices, voluntarily, if possible, prior to 
resorting to fund termination. LEAA can request that a recipient 
eliminate the effect of past discrimination by requiring the recipient 
to commit itself to goals and timetables. The formulation of goals is 
not a quota prohibited by section 518(b) of the act. A goal is a 
numerical objective fixed realistically in terms of the number of 
vacancies expected and the number of qualified applicants available. 
Factors such as a lower attrition rate than expected, bona fide fiscal 
restraints, or a lack of qualified applicants would be acceptable 
reasons for not meeting a goal that has been established and no 
sanctions would accrue under the program.'' Cong. Rec. S 17320 
(September 30, 1976, daily ed.).
    The Senate Judiciary Committee Report on the JSIA also emphasized 
that section 815(b) does not ``undercut subsection (c) in any way; 
subsection (b) has been interpreted

[[Page 733]]

so as not to limit LEAA's anti-discrimination enforcement capabilities. 
Indeed, recent court decisions have made this abundantly clear. See, 
e.g., United States v. City of Los Angeles, No. 77-3460 (C.D. Cal. 2/1/
79).'' S. Rept. 96-142, p. 57.
    See also the Equal Employment Opportunity Commission Affirmative 
Action Guidelines, 44 FR 4422 (January 19, 1979).
    Section 42.204. All grantees and subgrantees must make the 
assurances found in paragraph (a). Only State and local units of 
government and agencies thereof must make the assurance found in 
paragraph (c), since, as explained in the commentary on Sec. 42.201(c), 
the enforcement provisions of section 815(c)(2) apply only to 
governmental recipients.
    Section 42.205(a). Where information available to the Office clearly 
and convincingly demonstrates that the complaint is frivolous or 
otherwise without merit, the complaint will not be investigated, and the 
complainant will be so advised.
    Section 42.205(b). A one-year timeliness requirement is imposed to 
ensure that OJARS will be devoting its resources to the resolution of 
active issues, and to maximize the possibility that necessary witnesses 
and evidence are still available.
    Examples of good cause which would clearly warrant an extension of 
the filing period are a statement from the complainant stating that he 
or she was unware of the discrimination until after a year had passed, 
or that he or she was not aware that a remedy was available through 
OJARS.
    Section 42.205(c)(1). Jurisdiction exists if the complaint alleges 
discrimination on a ground prohibited by section 815(c)(1), if the 
recipient was receiving funds at the time of the discrimination, and the 
respondent named in the complaint is a current recipient of LEAA, NIJ, 
or BJS assistance.
    Prior to a determination of noncompliance, OJARS will attempt to 
negotiate voluntary compliance only during the 30-day period following 
receipt of the Office's preliminary findings, and only at the request of 
the recipient, as provided in Sec. 42.205(c)(3). If a determination of 
noncompliance is made, OJARS will participate in voluntary compliance 
efforts during the 90-day period following the letter sent to the chief 
executive(s) under section 42.208.
    Sections 42.205(c) (3) and (4) and 42.206(e). OJARS will notify the 
appropriate chief executive(s) of its recommendations during the 
voluntary resolution phase of both the complaint investigation and 
compliance review process. OJARS expects that the early involvement of 
the chief executive will often expedite the resolution of issues.
    Section 42.205(c)(5). OJARS will initiate an investigation if the 
litigation discussed in this subparagraph becomes protracted or 
apparently will not resolve the matter within a reasonable time.
    Section 42.205(c)(6). In order to effectively utilize the resources 
of other agencies, and to avoid duplication of effort, OJARS may request 
another agency to act on a particular complaint. OJARS expects this 
practice to be limited, and will attempt to ensure that any cooperative 
agreement reached with another agency is consistent with the timetables 
set forth in Sec. 42.205(c).
    Section 42.206(a). OJARS recognizes the practical impossibility of 
reviewing the compliance of each of its more than 39,000 recipients. The 
regulations seek to expedite the review process by reducing its length 
and narrowing its focus. Compliance reviews may, in some instances, be 
limited to specific employment practices, or other functions of a 
recipient, that appear to have the greatest adverse impact on an 
affected class.
    Section 42.206(b). The factors listed will be considered 
cumulatively by OJARS in selecting recipients for reviews. OJARS will 
consider data from all sources, including information provided by both 
internal and external auditors.
    Section 42.208(b). Upon receipt of the publications listed, OJARS 
will review the case reports for findings that may be violations of 
section 815(c)(1). In the case of the West Publishing Company reporters, 
OJARS will consult the topic ``Civil Rights'' in the Key Number Digests 
contained in the advance sheets.
    Section 42.208(e). This subsection sets forth the minimum procedural 
safeguards that OJARS would require of an administrative hearing to 
assure the process was consistent with the Administrative Procedure Act. 
The sufficiency of other procedures that may vary in form but insure due 
process and the same opportunity for a fair hearing of both parties' 
evidence will be determined by OJARS on a case-by-case basis.
    The Office will compile a list of State agencies whose procedures 
have been found consistent with the Administrative Procedure Act, and a 
list of State agencies whose procedures have been found inconsistent. 
When a finding of an agency not on either list is received, the Office 
will attempt to reliably determine the procedures used to render the 
findings.
    Section 42.209(a). Although the signature of the appropriate chief 
executives are ultimately required on the compliance agreement, these 
regulations do not preclude them from delegating the responsibility for 
securing compliance during the 90-day period following notification, to 
State or local administrative or human rights agencies under their 
respective authority. A compliance agreement may be an agreement to 
comply

[[Page 734]]

over a period of time, particularly in complex cases or where compliance 
would require an extended period of time for implementation.
    Section 42.209(b). The regulations require that a copy of the 
proposed compliance agreement be sent to the complainant, if any, before 
the effective date of the agreement. Although the Act would permit a 
copy to be sent as late as the effective date, OJARS believes the 
compliance agreement would be more likely to resolve all concerns and 
discourage litigation if the complainant's views were considered before 
it took effect.
    Section 42.211(b). An example of a case where compliance would 
require an extended period of time for implementation would be a court 
order setting a goal of five years for an employer to raise the 
percentage of minorities in its workforce to parity with the percentage 
of minorities in the relevant geographical labor force.
    Section 42.213. The full hearing will be conducted in accordance 
with JSIA Hearing and Appeal Procedures, 28 CFR 18.1, et seq.
    Section 42.215(a). In a December 20, 1976 letter to the 
Administrator of LEAA, Congressman Peter Rodino, Chairman of the House 
Judiciary Committee, commented on the regulations proposed to implement 
the substantially identical nondiscrimination provisions of the Crime 
Control Act. He advised the Administrator that ``the committee 
intentionally omitted the word `refer' from the law to ensure that LEAA 
would always retain administrative jurisdiction over a complaint filed 
with them. It is not appropriate for LEAA to refer cases to the Civil 
Rights Division or other Federal or State agencies without monitoring 
the case for prompt resolution.''
    Section 42.215(c)(2). The exhaustion of administrative remedies at 
the end of 60 days (unless the Office has made a determination) does not 
limit OJARS' authority to investigate a complaint after the expiration 
of that period. OJARS will continue to investigate the complaint after 
the end of the 60-day period, if necessary, in accordance with the 
provisions of Sec. 42.205.



       Subpart E--Equal Employment Opportunity Program Guidelines

    Authority: Sec. 501 of the Omnibus Crime Control and Safe Streets 
Act of 1968, Pub. L. 90-351, 82 Stat. 197, as amended.

    Source: 43 FR 28802, June 30, 1978, unless otherwise noted.



Sec. 42.301  Purpose.

    The experience of the Law Enforcement Assistance Administration in 
implementing its responsibilities under the Omnibus Crime Control and 
Safe Streets Act of 1968, as amended (Pub. L. 90-351, 82 Stat. 197; Pub. 
L. 91-644, 84 Stat. 1881) has demonstrated that the full and equal 
participation of women and minority individuals in employment 
opportunities in the criminal justice system is a necessary component to 
the Safe Streets Act's program to reduce crime and delinquency in the 
United States.



Sec. 42.302  Application.

    (a) Recipient means any State or local unit of government or agency 
thereof, and any private entity, institution, or organization, to which 
Federal financial assistance is extended directly, or through such 
government or agency, but such term does not include any ultimate 
beneficiary of such assistance.
    (b) The obligation of a recipient to formulate, implement, and 
maintain an equal employment opportunity program, in accordance with 
this subpart, extends to State and local police agencies, correctional 
agencies, criminal court systems, probation and parole agencies, and 
similar agencies responsible for the reduction and control of crime and 
delinquency.
    (c) Assignments of compliance responsibility for title VI of the 
Civil Rights Act of 1964 have been made by the Department of Justice to 
the Department of Health and Human Services, covering educational 
institutions and general hospital or medical facilities. Similarly, the 
Department of Labor, in pursuance of its authority under Executive 
Orders 11246 and 11375, has assigned responsibility for monitoring equal 
employment opportunity under government contracts with medical and 
educational institutions, and non-profit organizations, to the 
Department of Health and Human Services. Accordingly, monitoring 
responsibility in compliance matters in agencies of the kind mentioned 
in this paragraph rests with the Department of Health and Human 
Services, and agencies of this kind are exempt from the provisions of 
this subpart, and are not responsible for the development of equal 
employment opportunity programs in accordance herewith.

[[Page 735]]

    (d) Each recipient of LEAA assistance within the criminal justice 
system which has 50 or more employees and which has received grants or 
subgrants of $25,000 or more pursuant to and since the enactment of the 
Safe Streets Act of 1968, as amended, and which has a service population 
with a minority representation of 3 percent or more, is required to 
formulate, implement and maintain an equal employment opportunity 
program relating to employment practices affecting minority persons and 
women within 120 days after either the promulgation of these amended 
guidelines, or the initial application for assistance is approved, 
whichever is sooner. Where a recipient has 50 or more employees, and has 
received grants or subgrants of $25,000 or more, and has a service 
population with a minority representation of less than 3 percent, such 
recipient is required to formulate, implement, and maintain an equal 
employment opportunity program relating to employment practices 
affecting women. For a definition of ``employment practices'' within the 
meaning of this paragraph, see Sec. 42.202(c).
    (e) Minority persons shall include persons who are Black, not of 
Hispanic origin; Asian or Pacific Islanders; American Indians or Alaskan 
Native; or Hispanics. These categories are defined at 28 CFR 42.402(e).
    (f) Fiscal year means the 12 calendar months beginning October 1, 
and ending September 30, of the following calendar year. A fiscal year 
is designated by the calendar year in which it ends.

[43 FR 28802, June 30, 1978, as amended by Order No. 960-81, 46 FR 
52357, Oct. 27, 1981]



Sec. 42.303  Evaluation of employment opportunities.

    (a) A necessary prerequisite to the development and implementation 
of a satisfactory equal employment opportunity program is the 
identification and analysis of any problem areas inherent in the 
utilization or participation of minorities and women in all of the 
recipient's employment phases (e.g., recruitment, selection, and 
promotion) and the evaluation of employment opportunities for minorities 
and women.
    (b) In many cases an effective equal employment opportunity program 
may only be accomplished where the program is coordinated by the 
recipient agency with the cognizant Office of Personnel Management or 
similar agency responsible by law, in whole or in part, for the 
recruitment and selection of entrance candidates and selection of 
candidates for promotion.
    (c) In making the evaluation of employment opportunities, the 
recipient shall conduct such analysis separately for minorities and 
women. However, all racial and ethnic data collected to perform an 
evaluation pursuant to the requirements of this section should be cross 
classified by sex to ascertain the extent to which minority women or 
minority men may be underutilized. The evaluation should include but not 
necessarily be limited to, the following factors:
    (1) An analysis of present representation of women and minority 
persons in all job categories;
    (2) An analysis of all recruitment and employment selection 
procedures for the preceding fiscal year, including such things as 
position descriptions, application forms, recruitment methods and 
sources, interview procedures, test administration and test validity, 
educational prerequisites, referral procedures and final selection 
methods, to insure that equal employment opportunity is being afforded 
in all job categories;
    (3) An analysis of seniority practices and provisions, upgrading and 
promotion procedures, transfer procedures (lateral or vertical), and 
formal and informal training programs during the preceding fiscal year, 
in order to insure that equal employment opportunity is being afforded;
    (4) A reasonable assessment to determine whether minority employment 
is inhibited by external factors such as the lack of access to suitable 
housing in the geographical area served by a certain facility or the 
lack of suitable transportation (public or private) to the workplace.

[43 FR 28802, June 30, 1978, as amended by Order No. 899-80, 45 FR 
43703, June 30, 1980]

[[Page 736]]



Sec. 42.304  Written equal employment opportunity program.

    Each recipient's equal employment opportunity program shall be in 
writing and shall include:
    (a) A job classification table or chart which clearly indicates for 
each job classification or assignment the number of employees within 
each respective job category classified by race, sex and national origin 
(include for example Hispanic, Asian or Pacific Islander, and American 
Indian or Alaskan Native). Also, principal duties and rates of pay 
should be clearly indicated for each job classification. Where auxiliary 
duties are assigned or more than one rate of pay applies because of 
length of time in the job or other factors, a special notation should be 
made. Where the recipient operates more than one shift or assigns 
employees within each shift to varying locations, as in law enforcement 
agencies, the number by race, sex and national origin on each shift and 
in each location should be identified. When relevant, the recipient 
should indicate the racial/ethnic mix of the geographic area of 
assignments by the inclusion of minority population and percentage 
statistics.
    (b) The number of disciplinary actions taken against employees by 
race, sex and national origin within the preceding fiscal year, the 
number and types of sanctions imposed (suspension indefinitely, 
suspension for a term, loss of pay, written reprimand, oral reprimand, 
other) against individuals by race, sex and national origin.
    (c) The number of individuals by race, sex and national origin (if 
available) applying for employment within the preceding fiscal year and 
the number by race, sex and national origin (if available) of those 
applicants who were offered employment and those who were actually 
hired. If such data is unavailable, the recipient should institute a 
system for the collection of such data.
    (d) The number of employees in each job category by race, sex and 
national origin who made application for promotion or transfer within 
the preceding fiscal year and the number in each job category by race, 
sex, and national origin who were promoted or transferred.
    (e) The number of employees by race, sex, and national origin who 
were terminated within the preceding fiscal year, identifying by race, 
sex, and national origin which were voluntary and involuntary 
terminations.
    (f) Available community and area labor characteristics within the 
relevant geographical area including total population, workforce and 
existing unemployment by race, sex and national origin. Such data may be 
obtained from the Bureau of Labor Statistics, Washington, DC, State and 
local employment services, or other reliable sources. Recipient should 
identify the sources of the data used.
    (g) A detailed narrative statement setting forth the recipient's 
existing employment policies and practices as defined in Sec. 42.202(c). 
Thus, for example, where testing is used in the employment selection 
process, it is not sufficient for the recipient to simply note the fact. 
The recipient should identify the test, describe the procedures followed 
in administering and scoring the test, state what weight is given to 
test scores, how a cut-off score is established and whether the test has 
been validated to predict or measure job performance and, if so, a 
detailed description of the validation study. Similarly detailed 
responses are required with respect to other employment policies, 
procedures, and practices used by the applicant.
    (1) The statement should include the recipient's detailed analysis 
of existing employment policies, procedures, and practices as they 
relate to employment of minorities and women (see Sec. 42.303) and, 
where improvements are necessary, the statement should set forth in 
detail the specific steps the recipient will take for the achievement of 
full and equal employment opportunity. The Department of Justice 
Guidelines on Employee Selection Procedures, 28 CFR part 50, set out the 
appropriate standards for nondiscriminatory selection procedures. 
Recipients of LEAA assistance using selection procedures which are not 
in conformity with the Department of Justice guidelines shall set forth 
the specific areas of nonconformity, the reasons which may explain any 
such nonconformity, and if necessary, the steps

[[Page 737]]

the recipient agency will take to correct any existing deficiency.
    (2) The recipient should also set forth a program for recruitment of 
minority persons based on an informed judgment of what is necessary to 
attract minority applications including, but not necessarily limited to, 
dissemination of posters, use of advertising media patronized by 
minorities, minority group contacts and community relations programs. As 
appropriate, recipients may wish to refer to recruitment techniques 
suggested in revised order No. 4 of the Office of Federal Contract 
Compliance, U.S. Department of Labor, found at 41 CFR 60-2.24(e).
    (h) Plan for dissemination of the applicant's Equal Employment 
Opportunity Program to all personnel, applicants and the general public. 
As appropriate, recipients may wish to refer to the recommendations for 
dissemination of policy suggested in revised order No. 4 of the Office 
of Federal Contract Compliance, U.S. Department of Labor, found at 41 
CFR 60-2.21.
    (i) Designation of specified personnel to implement and maintain 
adherence to the equal employment opportunity program and a description 
of their specific responsibilities suggested in revised order No. 4 of 
the Office of Federal Contract Compliance, U.S. Department of Labor, 
found at 41 CFR 60-2.22.



Sec. 42.305  Recordkeeping and certification.

    The equal employment opportunity program and all records used in its 
preparation shall be kept on file and retained by each recipient covered 
by these guidelines for subsequent audit or review by responsible 
personnel of the cognizant State planning agency or the LEAA. Prior to 
the authorization to fund new or continuing programs under the Omnibus 
Crime Control and Safe Streets Act of 1968, the recipient shall file a 
certificate with the cognizant State planning agency or with the LEAA 
Office of Civil Rights Compliance stating that the equal employment 
opportunity program is on file with the recipient. This form of the 
certification shall be as follows:

    I, __________ (person filing the application) certify that the 
__________ (criminal justice agency) has formulated an equal employment 
program in accordance with 28 CFR 42.301, et seq., subpart E, and that 
it is on file in the Office of __________ (name), __________ (address), 
__________ (title), for review or audit by officials of the cognizant 
State planning agency or the Law Enforcement Assistance Administration 
as required by relevant laws and regulations.

The criminal justice agency created by the Governor to implement the 
Safe Streets Act within each State shall certify that it requires, as a 
condition of the receipt of block grant funds, that recipients from it 
have executed an Equal Employment Opportunity Program in accordance with 
this subpart, or that, in conformity with the terms and conditions of 
this regulation no equal employment opportunity programs are required to 
be filed by that jurisdiction.



Sec. 42.306  Guidelines.

    (a) Recipient agencies are expected to conduct a continuing program 
of self-evaluation to ascertain whether any of their recruitment, 
employee selection or promotional policies (or lack thereof) directly or 
indirectly have the effect of denying equal employment opportunities to 
minority individuals and women.
    (b) Equal employment program modification may be suggested by LEAA 
whenever identifiable referral or selection procedures and policies 
suggest to LEAA the appropriateness of improved selection procedures and 
policies. Accordingly, any recipient agencies falling within this 
category are encouraged to develop recruitment, hiring or promotional 
guidelines under their equal employment opportunity program which will 
correct, in a timely manner, any identifiable employment impediments 
which may have contributed to the existing disparities.



Sec. 42.307  Obligations of recipients.

    The obligation of those recipients subject to these guidelines for 
the maintenance of an equal employment opportunity program shall 
continue for the period during which the LEAA assistance is extended to 
a recipient or for the period during which a comprehensive law 
enforcement plan filed pursuant to the Safe Streets Act is in effect 
within the State, whichever is

[[Page 738]]

longer, unless the assurances of compliance, filed by a recipient in 
accordance with Sec. 42.204(a)(2), specify a different period.



Sec. 42.308  Noncompliance.

    Failure to implement and maintain an equal employment opportunity 
program as required by these guidelines shall subject recipients of LEAA 
assistance to the sanctions prescribed by the Safe Streets Act and the 
equal employment opportunity regulations of the Department of Justice. 
(See 42 U.S.C. 3757 and 28 CFR 42.207.)



    Subpart F--Coordination of Enforcement of Non-discrimination in 
                       Federally Assisted Programs

    Authority: Executive Order 12250.

    Source: Order No. 670-76, 41 FR 52669, Dec. 1, 1976, unless 
otherwise noted.



Sec. 42.401  Purpose and application.

    The purpose of this subpart is to insure that federal agencies which 
extend financial assistance properly enforce title VI of the Civil 
Rights Act of 1964 and similar provisions in federal grant statutes. 
Enforcement of the latter statutes is covered by this subpart to the 
extent that they relate to prohibiting discrimination on the ground of 
race, color or national origin in programs receiving federal financial 
assistance of the type subject to title VI. Responsibility for enforcing 
title VI rests with the federal agencies which extend financial 
assistance. In accord with the authority granted the Attorney General 
under Executive Order 12250, this subpart shall govern the respective 
obligations of federal agencies regarding enforcement of title VI. This 
subpart is to be used in conjunction with the 1965 Attorney General 
Guidelines for Enforcement of title VI, 28 CFR 50.3.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No. 
960-81, 46 FR 52357, Oct. 27, 1981]



Sec. 42.402  Definitions.

    For purpose of this subpart:
    (a) Title VI refers to title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d to 2000d-4. Where appropriate, this term also refers to the 
civil rights provisions of other federal statutes to the extent that 
they prohibit discrimination on the ground of race, color or national 
origin in programs receiving federal financial assistance of the type 
subject to title VI itself.
    (b) Agency or federal agency refers to any federal department or 
agency which extends federal financial assistance of the type subject to 
title VI.
    (c) Program refers to programs and activities receiving federal 
financial assistance of the type subject to title VI.
    (d) Assistant Attorney General refers to the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice.
    (e) Where designation of persons by race, color or national origin 
is required, the following designations shall be used:
    (1) Black, not of Hispanic Origin. A person having origins in any of 
the black racial groups of Africa.
    (2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or 
South American or other Spanish Culture or origin, regardless of race.
    (3) Asian or Pacific Islander. A person having origins in any of the 
original peoples of the Far East, Southeast Asia, the Indian 
Subcontinent, or the Pacific Islands. This area includes, for example, 
China, Japan, Korea, the Philippine Islands, and Samoa.
    (4) American Indian or Alaskan Native. A person having origins in 
any of the original peoples of North America, and who maintain cultural 
identification through tribal affiliation or community recognition.
    (5) White, not of Hispanic Origin. A person having origins in any of 
the original people of Europe, North Africa, or the Middle East. 
Additional sub-categories based on national origin or primary language 
spoken may be used where appropriate, on either a national or a regional 
basis. Paragraphs (e)(1) through (e)(5) of this section, inclusive, set 
forth in this section are in conformity with the OMB Ad Hoc Committee on 
Race/Ethnic Categories' recommendations. To the extent that said 
designations are modified by the OMB Ad Hoc Committee, paragraphs (e)(1)

[[Page 739]]

through (e)(5) of this section, inclusive, set forth in this section 
shall be interpreted to conform with those modifications.
    (f) Covered employment means employment practices covered by title 
VI. Such practices are those which:
    (1) Exist in a program where a primary objective of the federal 
financial assistance is to provide employment, or
    (2) Cause discrimination on the basis of race, color or national 
origin with respect to beneficiaries or potential beneficiaries of the 
assisted program.



Sec. 42.403  Agency regulations.

    (a) Any federal agency subject to title VI which has not issued a 
regulation implementing title VI shall do so as promptly as possible 
and, no later than the effective date of this subpart, shall submit a 
proposed regulation to the Assistant Attorney General pursuant to 
paragraph (c) of this section.
    (b) Any federal agency which becomes subject to title VI after the 
effective date of this subpart shall, within 60 days of the date it 
becomes subject to title VI, submit a proposed regulation to the 
Assistant Attorney General pursuant to paragraph (c) of this section.
    (c) Regarding issuance or amendment of its regulation implementing 
title VI, a federal agency shall take the following steps:
    (1) Before publishing a proposed regulation of amendment in the 
Federal Register, submit it to the Assistant Attorney General, Civil 
Rights Division;
    (2) After receiving the approval of the Assistant Attorney General, 
publish the proposed regulation or amendment in the Federal Register for 
comment;
    (3) After final agency approval, submit the regulation or amendment, 
through the Assistant Attorney General, to the Attorney General for 
final approval. (Executive Order 12250 delegates to the Attorney General 
the function, vested in the President by section 602 of title VI, 42 
U.S.C. 2000d-1, of approving title VI regulations and amendments to 
them.)
    (d) The title VI regulation of each federal agency shall be 
supplemented with an appendix listing the types of federal financial 
assistance, i.e., the statutes authorizing such assistance, to which the 
regulation applies. Each such appendix shall be kept up-to-date by 
amendments published, at appropriate intervals, in the Federal Register. 
In issuing or amending such an appendix, the agency need not follow the 
procedure set forth in paragraph (c) of this section.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No. 
960-81, 46 FR 52357, Oct. 27, 1981]



Sec. 42.404  Guidelines.

    (a) Federal agencies shall publish title VI guidelines for each type 
of program to which they extend financial assistance, where such 
guidelines would be appropriate to provide detailed information on the 
requirements of title VI. Such guidelines shall be published within 
three months of the effective date of this subpart or of the effective 
date of any subsequent statute authorizing federal financial assistance 
to a new type of program. The guidelines shall describe the nature of 
title VI coverage, methods of enforcement, examples of prohibited 
practices in the context of the particular type of program, required or 
suggested remedial action, and the nature of requirements relating to 
covered employment, data collection, complaints and public information.
    (b) Where a federal agency determines that title VI guidelines are 
not appropriate for any type of program to which it provides financial 
assistance, the reasons for the determination shall be stated in writing 
and made available to the public upon request.



Sec. 42.405  Public dissemination of title VI information.

    (a) Federal agencies shall make available and, where appropriate, 
distribute their title VI regulations and guidelines for use by federal 
employees, applicants for federal assistance, recipients, beneficiaries 
and other interested persons.
    (b) State agency compliance programs (see Sec. 42.410) shall be made 
available to the public.
    (c) Federal agencies shall require recipients, where feasible, to 
display prominently in reasonable numbers

[[Page 740]]

and places posters which state that the recipients operate programs 
subject to the nondiscrimination requirements of title VI, summarize 
those requirements, note the availability of title VI information from 
recipients and the federal agencies, and explain briefly the procedures 
for filing complaints. Federal agencies and recipients shall also 
include information on title VI requirements, complaint procedures and 
the rights of beneficiaries in handbooks, manuals, pamphlets and other 
material which are ordinarily distributed to the public to describe the 
federally assisted programs and the requirements for participation by 
recipients and beneficiairies. To the extent that recipients are 
required by law or regulation to publish or broadcast program 
information in the news media, federal agencies and recipients shall 
insure that such publications and broadcasts state that the program in 
question is an equal opportunity program or otherwise indicate that 
discrimination in the program is prohibited by federal law.
    (d)(1) Where a significant number or proportion of the population 
eligible to be served or likely to be directly affected by a federally 
assisted program (e.g., affected by relocation) needs service or 
information in a language other than English in order effectively to be 
informed of or to participate in the program, the recipient shall take 
reasonable steps, considering the scope of the program and the size and 
concentration of such population, to provide information in appropriate 
languages to such persons. This requirement applies with regard to 
written material of the type which is ordinarily distributed to the 
public.
    (2) Federal agencies shall also take reasonable steps to provide, in 
languages other than English, information regarding programs subject to 
title VI.



Sec. 42.406  Data and information collection.

    (a) Except as determined to be inappropriate in accordance with 
paragraph (f) of this section or Sec. 42.404(b), federal agencies, as a 
part of the guidelines required by Sec. 42.404, shall in regard to each 
assisted program provide for the collection of data and information from 
applicants for and recipients of federal assistance sufficient to permit 
effective enforcement of title VI.
    (b) Pursuant to paragraph (a) of this section, in conjunction with 
new applications for federal assistance (see 28 CFR 50.3(c) II A) and in 
any applications for approval of specific projects or significant 
changes in applications for continuation or renewal of assistance (see 
28 CFR 50.3(c) II B), and at other times as appropriate, federal 
agencies shall require applicants and recipients to provide relevant and 
current title VI information. Examples of data and information which, to 
the extent necessary and appropriate for determining compliance with 
title VI, should be required by agency guidelines are as follows:
    (1) The manner in which services are or will be provided by the 
program in question, and related data necessary for determining whether 
any persons are or will be denied such services on the basis of 
prohibited discrimination;
    (2) The population eligible to be served by race, color and national 
origin;
    (3) Data regarding covered employment, including use or planned use 
of bilingual public-contact employees serving beneficiaries of the 
program where necessary to permit effective participation by 
beneficiaries unable to speak or understand English;
    (4) The location of existing or proposed facilities connected with 
the program, and related information adequate for determing whether the 
location has or will have the effect of unnecessarily denying access to 
any persons on the basis of prohibited discrimination;
    (5) The present or proposed membership, by race, color and national 
origin, in any planning or advisory body which is an integral part of 
the program;
    (6) Where relocation is involved, the requirements and steps used or 
proposed to guard against unnecessary impact on persons on the basis of 
race, color or national origin.
    (c) Where additional data, such as demographic maps, the racial 
composition of affected neighborhoods or census data, is necessary or 
appropriate, for understanding information required in paragraph (b) of 
this section, federal

[[Page 741]]

agencies shall specify, in their guidelines or in other directives, the 
need to submit such data. Such additional data should be required, 
however, only to the extent that it is readily available or can be 
compiled with reasonable effort.
    (d) Pursuant to paragraphs (a) and (b) of this section, in all 
cases, federal agencies shall require:
    (1) That each applicant or recipient promptly notify the agency upon 
its request of any lawsuit filed against the applicant or recipient 
alleging discrimination on the basis of race, color or national origin, 
and that each recipient notify the agency upon its request of any 
complaints filed against the recipient alleging such discrimination;
    (2) A brief description of any applicant's or recipient's pending 
applications to other federal agencies for assistance, and of federal 
asssistance being provided at the time of the application or requested 
report;
    (3) A statement by any applicant describing any civil rights 
compliance reviews regarding the applicant conducted during the two-year 
period before the application, and information concerning the agency or 
organization performing the review; and periodic statements by any 
recipient regarding such reviews;
    (4) A written assurance by any applicant or recipient that it will 
compile and maintain records required, pursuant to paragraphs (a) and 
(b) of this section, by the agency's guidelines or other directives.
    (e) Federal agencies should inquire whether any agency listed by the 
applicant or recipient pursuant to paragraph (d)(2) of this section has 
found the applicant or recipient to be in noncompliance with any 
relevant civil rights requirement.
    (f) Where a federal agency determines that any of the requirements 
of this section are inapplicable or inappropriate in regard to any 
program, the basis for this conclusion shall be set forth in writing and 
made available to the public upon request.



Sec. 42.407  Procedures to determine compliance.

    (a) Agency staff determination responsibility. All federal agency 
staff determinations of title VI compliance shall be made by, or be 
subject to the review of, the agency's civil rights office. Where 
federal agency responsibility for approving applications or specific 
projects has been assigned to regional or area offices, the agency shall 
include personnel having title VI review responsibility on the staffs of 
such offices and such personnel shall perform the functions described in 
paragraphs (b) and (c) of this section.
    (b) Application review. Prior to approval of federal financial 
assistance, the federal agency shall make written determination as to 
whether the applicant is in compliance with title VI (see 28 CFR 50.3(c) 
II A). The basis for such a determination under ``the agency's own 
investigation'' provision (see 28 CFR 50.3(c) II A(2)), shall be 
submission of an assurance of compliance and a review of the data 
submitted by the applicant. Where a determination cannot be made from 
this data, the agency shall require the submission of necessary 
additional information and shall take other steps necessary for making 
the determination. Such other steps may include, for example, 
communicating with local government officials or minority group 
organizations and field reviews. Where the requested assistance is for 
construction, a pre-approval review should determine whether the 
location and design of the project will provide service on a 
nondiscriminatory basis and whether persons will be displaced or 
relocated on a nondiscriminatory basis.
    (c) Post-approval review. (1) Federal agencies shall establish and 
maintain an effective program of post-approval compliance reviews 
regarding approved new applications (see 28 CFR 50.3(c) II A), 
applications for continuation or renewal of assistance (28 CFR 50.3(c) 
II B) and all other federally assisted programs. Such reviews are to 
include periodic submission of compliance reports by recipients to the 
agencies and, where appropriate, field reviews of a representative 
number of major recipients. In carrying out this program, agency 
personnel shall follow agency manuals which establish appropriate review 
procedures and standards of evaluation. Additionally, agencies should 
consider incorporating a title

[[Page 742]]

VI component into general program reviews and audits.
    (2) The results of post-approval reviews shall be committed to 
writing and shall include specific findings of fact and recommendations. 
A determination of the compliance status of the recipient reviewed shall 
be made as promptly as possible.
    (d) Notice to assistant attorney general. Federal agencies shall 
promptly notify the Assistant Attorney General of instances of probable 
noncompliance determined as the result of application reviews or post-
approval compliance reviews.



Sec. 42.408   Complaint procedures.

    (a) Federal agencies shall establish and publish in their guidelines 
procedures for the prompt processing and disposition of complaints. The 
complaint procedures shall provide for notification in writing to the 
complainant and the applicant or recipient as to the disposition of the 
complaint. Federal agencies should investigate complaints having 
apparent merit. Where such complaints are not investigated, good cause 
must exist and must be stated in the notification of disposition. In 
such cases, the agency shall ascertain the feasibility of referring the 
complaint to the primary recipient, such as a State agency, for 
investigation.
    (b) Where a federal agency lacks jurisdiction over a complaint, the 
agency shall, wherever possible, refer the complaint to another federal 
agency or advise the complainant.
    (c) Where a federal agency requires or permits recipient to process 
title VI complaints, the agency shall ascertain whether the recipients' 
procedures for processing complaints are adequate. The federal agency 
shall obtain a written report of each such complaint and investigation 
and shall retain a review responsibility over the investigation and 
disposition of each complaint.
    (d) Each federal agency shall maintain a log of title VI complaints 
filed with it, and with its recipients, identifying each complainant by 
race, color, or national origin; the recipient; the nature of the 
complaint; the dates the complaint was filed and the investigation 
completed; the disposition; the date of disposition; and other pertinent 
information. Each recipient processing title VI complaints shall be 
required to maintain a similar log. Federal agencies shall report to the 
Assistant Attorney General on January 1, 1977, and each six months 
thereafter, the receipt, nature and disposition of all such title VI 
complaints.



Sec. 42.409   Employment practices.

    Enforcement of title VI compliance with respect to covered 
employment practices shall not be superseded by state and local merit 
systems relating to the employment practices of the same recipient.



Sec. 42.410   Continuing State programs.

    Each state agency administering a continuing program which receives 
federal financial assistance shall be required to establish a title VI 
compliance program for itself and other recipients which obtain federal 
assistance through it. The federal agencies shall require that such 
state compliance programs provide for the assignment of title VI 
responsibilities to designated state personnel and comply with the 
minimum standards established in this subpart for federal agencies, 
including the maintenance of records necessary to permit federal 
officials to determine the title VI compliance of the state agencies and 
the sub-recipient.



Sec. 42.411   Methods of resolving noncompliance.

    (a) Effective enforcement of title VI requires that agencies take 
prompt action to achieve voluntary compliance in all instances in which 
noncompliance is found. Where such efforts have not been successful 
within a reasonable period of time, the agency shall initiate 
appropriate enforcement procedures as set forth in the 1965 Attorney 
General Guidelines, 28 CFR 50.3. Each agency shall establish internal 
controls to avoid unnecessary delay in resolving noncompliance, and 
shall promptly notify the Assistant Attorney General of any case in 
which negotiations have continued for more than sixty days after the 
making of the determination of probable noncompliance and shall

[[Page 743]]

state the reasons for the length of the negotiations.
    (b) Agreement on the part of a noncomplying recipient to take 
remedial steps to achieve compliance with title VI shall be set forth in 
writing by the recipient and the federal agency. The remedial plan shall 
specify the action necessary for the correction of title VI deficiencies 
and shall be available to the public.



Sec. 42.412  Coordination.

    (a) The Attorney General's authority under Executive Order 12250 is 
hereby delegated to the Assistant Attorney General, Civil Rights 
Division.
    (b) Consistent with this subpart and the 1965 Attorney General 
Guidelines, 28 CFR 50.3, the Assistant Attorney General may issue such 
directives and take such other action as he deems necessary to insure 
that federal agencies carry out their responsibilities under title VI. 
In addition, the Assistant Attorney General will routinely provide to 
the Director of the Office of Management and Budget copies of all inter-
agency survey reports and related materials prepared by the Civil Rights 
Division that evaluate the effectiveness of an agency's title VI 
compliance efforts. Where cases or matters are referred to the Assistant 
Attorney General for investigation, litigation or other appropriate 
action, the federal agencies shall, upon request, provide appropriate 
resources to the Assistant Attorney General to assist in carrying out 
such action.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No. 
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52357, Oct. 
27, 1981]



Sec. 42.413   Interagency cooperation and delegations.

    (a) Where each of a substantial number of recipients is receiving 
assistance for similar or related purposes from two or more federal 
agencies, or where two or more federal agencies cooperate in 
administering assistance for a given class of recipients, the federal 
agencies shall:
    (1) Jointly coordinate compliance with title VI in the assisted 
programs, to the extent consistent with the federal statutes under which 
the assistance is provided; and
    (2) Designate one of the federal agencies as the lead agency for 
title VI compliance purposes. This shall be done by a written delegation 
agreement, a copy of which shall be provided to the Assistant Attorney 
General and shall be published in the Federal Register.
    (b) Where such designations or delegations of functions have been 
made, the agencies shall adopt adequate written procedures to assure 
that the same standards of compliance with title VI are utilized at the 
operational levels by each of the agencies. This may include 
notification to agency personnel in handbooks, or instructions on any 
forms used regarding the compliance procedures.
    (c) Any agency conducting a compliance review or investigating a 
complaint of an alleged title VI violation shall notify any other 
affected agency upon discovery of its jurisdiction and shall 
subsequently inform it of the findings made. Such reviews or 
investigations may be made on a joint basis.
    (d) Where a compliance review or complaint investigation under title 
VI reveals a possible violation of Executive Order 11246, title VII of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e), or any other federal 
law, the appropriate agency shall be notified.



Sec. 42.414   Federal agency staff.

    Sufficient personnel shall be assigned by a federal agency to its 
title VI compliance program to ensure effective enforcement of title VI.



Sec. 42.415   Federal agency title VI enforcement plan.

    Each federal agency subject to title VI shall develop a written plan 
for enforcement which sets out its priorities and procedures. This plan 
shall be available to the public and shall address matters such as the 
method for selecting recipients for compliance reviews, the 
establishment of timetables and controls for such reviews, the procedure 
for handling complaints, the allocation of its staff to different 
compliance functions, the development of guidelines, the determination 
as to when guidelines are not appropriate,

[[Page 744]]

and the provision of civil rights training for its staff.



  Subpart G--Nondiscrimination Based on Handicap in Federally Assisted 
  Programs--Implementation of Section 504 of the Rehabilitation Act of 
                                  1973

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 706, 794; 
E.O. 12250.

    Source: 45 FR 37622, June 3, 1980, unless otherwise noted.

                           General Provisions



Sec. 42.501  Purpose.

    The purpose of this subpart is to implement section 504 of the 
Rehabilitation Act of 1973, as amended, which prohibits discrimination 
on the basis of handicap in any program receiving Federal financial 
assistance.



Sec. 42.502  Application.

    This subpart applies to each recipient of Federal financial 
assistance from the Department of Justice and to each program receiving 
or benefiting from such assistance. The requirements of this subpart do 
not apply to the ultimate beneficiaries of Federal financial assistance 
in the program receiving Federal financial assistance.



Sec. 42.503  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, solely on the 
basis of handicap, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination under any 
program receiving or benefiting from Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient may not 
discriminate on the basis of handicap in the following ways directly or 
through contractual, licensing, or other arrangements under any program 
receiving Federal financial assistance:
    (i) Deny a qualified handicapped person the opportunity accorded 
others to participate in the program receiving Federal financial 
assistance;
    (ii) Deny a qualified handicapped person an equal opportunity to 
achieve the same benefits that others achieve in the program receiving 
Federal financial assistance;
    (iii) Provide different or separate assistance to handicapped 
persons or classes of handicapped persons than is provided to others 
unless such action is necessary to provide qualified handicapped persons 
or classes of handicapped persons with assistance as effective as that 
provided to others;
    (iv) Deny a qualified handicapped person an equal opportunity to 
participate in the program by providing services to the program;
    (v) Deny a qualified handicapped person an opportunity to 
participate as a member of a planning or advisory body;
    (vi) Permit the participation in the program of agencies, 
organizations or persons which discriminate against the handicapped 
beneficiaries in the recipient's program;
    (vii) Intimidate or retaliate against any individual, whether 
handicapped or not, for the purpose of interfering with any right 
secured by section 504 or this subpart.
    (2) A recipient may not deny a qualified handicapped person the 
opportunity to participate in any program receiving Federal financial 
assistance on the ground that other specialized programs for handicapped 
persons are available.
    (3) A recipient may not, directly or through contractual, licensing, 
or other arrangements, utilize criteria or methods of administration 
that either purposely or in effect discriminate on the basis of 
handicap, defeat or substantially impair accomplishment of the 
objectives of the recipient's program with respect to handicapped 
persons, or perpetuate the discrimination of another recipient if both 
recipients are subject to common administrative control or are agencies 
of the same State.
    (4) A recipient may not, in determining the location or design of a 
facility, make selections that either purposely or in effect 
discriminate on the basis of handicap or defeat or substantially impair 
the accomplishment of the objectives of the program with respect to 
handicapped persons.
    (5) A recipient is prohibited from discriminating on the basis of 
handicap in a program operating without Federal

[[Page 745]]

financial assistance where such action would discriminate against the 
handicapped beneficiaries or participants in any program of the 
recipient receiving Federal financial assistance.
    (6) Any program not otherwise receiving Federal financial assistance 
but using a facility provided with the aid of Federal financial 
assistance after the effective date of this subpart is prohibited from 
discriminating on the basis of handicap.
    (c) The exclusion of nonhandicapped persons or specified classes of 
handicapped persons from programs limited by Federal statute or 
executive order to handicapped persons or a different class of 
handicapped persons is not prohibited by this subpart.
    (d) Recipients shall administer programs in the most integrated 
setting appropriate to the needs of qualified handicapped persons.
    (e) Recipients shall insure that communications with their 
applicants, employees and beneficiaries are effectively conveyed to 
those having impaired vision and hearing.
    (f) A recipient that employs fifteen or more persons shall provide 
appropriate auxiliary aids to qualified handicapped persons with 
impaired sensory, manual, or speaking skills where a refusal to make 
such provision would discriminatorily impair or exclude the 
participation of such persons in a program receiving Federal financial 
assistance. Such auxiliary aids may include brailled and taped material, 
qualified interpreters, readers, and telephonic devices. Attendants, 
individually prescribed devices, readers for personal use or study, or 
other devices or services of a personal nature are not required under 
this section. Departmental officials may require recipients employing 
fewer than fifteen persons to provide auxiliary aids when this would not 
significantly impair the ability of the recipient to provide its 
benefits or services.
    (g) The enumeration of specific forms of prohibited discrimination 
in this subpart is not exhaustive but only illustrative.



Sec. 42.504  Assurances required.

    (a) Assurances. Every application for Federal financial assistance 
covered by this subpart shall contain an assurance that the program will 
be conducted in compliance with the requirements of section 504 and this 
subpart. Each agency within the Department that provides Federal 
financial assistance shall specify the form of the foregoing assurance 
for each of its assistance programs and shall require applicants for 
Department financial assistance to obtain like assurances from 
subgrantees, contractors and subcontractors, transferees, successors in 
interest, and others connected with the program. Each Department agency 
shall specify the extent to which an applicant will be required to 
confirm that the assurances provided by secondary recipients are being 
honored. Each assurance shall include provisions giving notice that the 
United States has a right to seek judicial enforcement of section 504 
and the assurance.
    (b) Assurances from government agencies. Assurances from agencies of 
State and local governments shall extend to any other agency of the same 
governmental unit if the policies of the other agency will affect the 
program for which Federal financial assistance is requested.
    (c) Assurances from institutions. The assurances required with 
respect to any institution or facility shall be applicable to the entire 
institution or facility.
    (d) Duration of obligation. Where the Federal financial assistance 
is to provide or is in the form of real or personal property, the 
assurance will obligate the recipient and any transferee for the period 
during which the property is being used for the purpose for which the 
Federal financial assistance is extended or for another purpose 
involving the provisions of similar benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. In all other cases the assurance will obligate the recipient for 
the period during which Federal financial assistance is extended.
    (e) Covenants. With respect to any transfer of real property, the 
transfer document shall contain a covenant running with the land 
assuring nondiscrimination on the condition described in paragraph (d) 
of this section.

[[Page 746]]

Where the property is obtained from the Federal Government, the covenant 
may also include a condition coupled with a right to be reserved by the 
Department to revert title to the property in the event of a breach of 
the covenant.
    (f) Remedies. The failure to secure either an assurance or a 
sufficient assurance from a recipient shall not impair the right of the 
Department to enforce the requirements of section 504 and this subpart.



Sec. 42.505  Administrative requirements for recipients.

    (a) Remedial action. If the Department finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this subpart, the recipient shall take the remedial 
action the Department considers necessary to overcome the effects of the 
discrimination. This may include remedial action with respect to 
handicapped persons who are no longer participants in the recipient's 
program but who were participants in the program when such 
discrimination occurred, and with respect to handicapped persons who 
would have been participants in the program had the discrimination not 
occurred.
    (b) Voluntary action. A recipient may take steps, in addition to the 
requirements of this subpart, to increase the participation of qualified 
handicapped persons in the recipient's program.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this subpart, evaluate and modify its policies and 
practices that do not meet the requirements of this subpart. During this 
process the recipient shall seek the advice and assistance of interested 
persons, including handicapped persons or organizations representing 
handicapped persons. During this period and thereafter the recipient 
shall take any necessary remedial steps to eliminate the effects of 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient employing fifty or more persons and receiving 
Federal financial assistance from the Department of $25,000 or more 
shall, for at least three years following completion of the evaluation 
required under paragraph (c)(1) of this section, maintain on file, make 
available for public inspection, and provide to the Department on 
request:
    (i) A list of the interested persons consulted,
    (ii) A description of areas examined and problems identified, and
    (iii) A description of modifications made and remedial steps taken.
    (d) Designation of responsible employee. A recipient employing fifty 
or more persons and receiving Federal financial assistance from the 
Department of $25,000 or more shall designate at least one person to 
coordinate compliance with this subpart.
    (e) Adoption of grievance procedures. A recipient employing fifty or 
more persons and receiving Federal financial assistance from the 
Department of $25,000 or more shall adopt grievance procedures that 
incorporate due process standards (e.g. adequate notice, fair hearing) 
and provide for the prompt and equitable resolution of complaints 
alleging any action prohibited by this subpart. Such procedures need not 
be established with respect to complaints from applicants for 
employment. An employee may file a complaint with the Department without 
having first used the recipient's grievance procedures.
    (f) Notice. (1) A recipient employing fifty or more persons and 
receiving Federal financial assistance from the Department of more than 
$25,000 shall, on a continuing basis, notify participants, 
beneficiaries, applicants, employees and unions or professional 
organizations holding collective bargaining or professional agreements 
with the recipient that it does not discriminate on the basis of 
handicap in violation of section 504 and this subpart. The notification 
shall state, where appropriate, that the recipient does not discriminate 
in its programs with respect to access, treatment or employment. The 
notification shall also include identification of the person responsible 
for coordinating compliance with this subpart and where to file section 
504 complaints with the Department and, where applicable, with the 
recipient. A recipient shall make the initial notification required by 
this

[[Page 747]]

paragraph within 90 days of the effective date of this subpart. Methods 
of initial and continuing notification may include the posting of 
notices, publication in newspapers and magazines, placement of notices 
in recipients' publication, and distribution of memoranda or other 
written communications.
    (2) Recruitment materials or publications containing general 
information that a recipient makes available to participants, 
beneficiaries, applicants, or employees shall include a policy statement 
of nondiscrimination on the basis of handicap.
    (g) The Department may require any recipient with fewer than fifty 
employees and receiving less than $25,000 in Federal financial 
assistance to comply with paragraphs (c)(2) and (d) through (f) of this 
section.
    (h) The obligation to comply with this subpart is not affected by 
any State or local law or requirement or limited employment 
opportunities for handicapped persons in any occupation or profession.

                               Employment



Sec. 42.510  Discrimination prohibited.

    (a) General. (1) No qualified handicapped person shall on the basis 
of handicap be subjected to discrimination in employment under any 
program receiving or benefiting from Federal financial assistance.
    (2) A recipient shall make all decisions concerning employment under 
any program receiving Federal financial assistance in a manner which 
insures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this section. 
The relationships referred to in this paragraph include relationships 
with employment and referral agencies, labor unions, organizations 
providing or administering fringe benefits to employees of the 
recipient, and organizations providing training and apprenticeship 
programs, and with civil service agencies in State or local units of 
government.
    (b) Specific activities. The prohibition against discrimination in 
employment applies to the following activities:
    (1) Recruitment, advertising, and application processing;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff and rehiring;
    (3) Pay and any other form of compensation and changes in 
compensation, including fringe benefits available by virtue of 
employment, whether or not administered by the recipient;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and selection for 
leaves of absence to pursue training;
    (7) Employer-sponsored activities, including social or recreational 
programs; and
    (8) Any other term, condition, or privilege of employment.
    (c) In offering employment or promotions to handicapped individuals, 
recipients may not reduce the amount of compensation offered because of 
any disability income, pension or other benefit the applicant or 
employee receives from another source.
    (d) A recipient's obligation to comply with this section is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.



Sec. 42.511  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate, based on the 
individual assessment of the applicant or employee, that the 
accommodation would impose an undue hardship on the operation of its 
program.

[[Page 748]]

    (b) Reasonable accommodation may include making facilities used by 
employees readily accessible to and usable by handicapped persons, job 
restructuring, part-time or modified work schedules, acquisition or 
modification of equipment or devices (e.g., telecommunication or other 
telephone devices), the provisions of readers or qualified interpreters, 
and other similar actions.
    (c) Whether an accommodation would impose an undue hardship on the 
operation of a recipient's program depends upon a case-by-case analysis 
weighing factors that include:
    (1) The overall size of the recipient's program with respect to 
number of employees, number and type of facilities, and size of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.

A reasonable accommodation may require a recipient to bear more than an 
insignificant economic cost in making allowance for the handicap of a 
qualified applicant or employee and to accept minor inconvenience which 
does not bear on the ability of the handicapped individual to perform 
the essential duties of the job.



Sec. 42.512  Employment criteria.

    (a) A recipient may not use any employment test or other selection 
criterion that tends to screen out handicapped persons unless:
    (1) The test score or other selection criterion, as used by the 
recipient, is shown to be job-related for the position in question, and
    (2) Alternative job-related tests or criteria that tend to screen 
out fewer handicapped persons are not shown by the appropriate 
Department officials to be available.
    (b) A recipient shall administer tests using procedures (e.g., 
auxiliary aids such as readers for visually-impaired persons or 
qualified sign language interpreters for hearing-impaired persons) that 
accommodate the special problems of handicapped persons to the fullest 
extent, consistent with the objectives of the test. When a test is 
administered to an applicant or employee who has a handicap that impairs 
sensory, manual, or speaking skills, the test results must accurately 
reflect the applicant's or employee's job skills, aptitude, or whatever 
other factor the test purports to measure, rather than reflecting the 
applicant's or employee's impaired sensory, manual, or speaking skills 
(except where those skills are the factors that the test purports to 
measure).



Sec. 42.513  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination and may 
not make preemployment inquiry of an applicant as to whether the 
applicant is a handicapped person or as to the nature or severity of a 
handicap. A recipient may, however, make preemployment inquiry into an 
applicant's ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 42.505(a) of this 
subpart, when a recipient is taking voluntary action to overcome the 
effects of conditions that resulted in limited participation in its 
Federally assisted program or activity pursuant to Sec. 42.505(b) of 
this subpart, or when a recipient is taking affirmative action pursuant 
to section 503 of the Act, the recipient may invite applicants for 
employment to indicate whether and to what extent they are handicapped: 
Provided, That:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally if no written questionnaire is 
used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary 
efforts;
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an

[[Page 749]]

offer of employment on the results of a medical examination conducted 
prior to the employee's entrance on duty: Provided, That:
    (1) All entering employees are subjected to such an examination 
regardless of handicap, and
     (2) The results of such an examination are used only in accordance 
with the requirements of this subpart.
    (d) The applicant's medical record shall be collected and maintained 
on separate forms and kept confidential, except that the following 
persons may be informed:
    (1) Supervisors and managers regarding restrictions on the work of 
handicapped persons and necessary accommodations;
    (2) First aid and safety personnel if the condition might require 
emergency treatment; and
    (3) Government officials investigating compliance with the Act upon 
request for relevant information.

                          Program Accessibility



Sec. 42.520  Discrimination prohibited.

    Recipients shall insure that no qualified handicapped person is 
denied the benefits of, excluded from participation in, or otherwise 
subjected to discrimination under any program receiving Federal 
financial assistance because the recipient's facilities are inaccessible 
to or unusable by handicapped persons.



Sec. 42.521  Existing facilities.

    (a) Program accessibility. A recipient shall operate each program to 
which this subpart applies so that the program, when viewed in its 
entirety, is readily accessible to and usable by handicapped persons. 
This section does not require a recipient to make each of its existing 
facilities or every part of a facility accessible to and usable by 
handicapped persons.
    (b) Compliance procedures. A recipient may comply with the 
requirement of paragraph (a) of this section through acquisition or 
redesign of equipment, reassignment of services to accessible buildings, 
assignment of aids to beneficiaries, delivery of services at alternate 
accessible sites, alteration of existing facilities, or any other method 
that results in making its program accessible to its program accessible 
to handicapped persons. A recipient is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with paragraph (a) of this section. In choosing 
among methods for meeting the requirement of paragraph (a) of this 
section, a recipient shall give priority to those methods that offer 
programs to handicapped persons in the most integrated setting 
appropriate to obtain the full benefits of the program.
    (c) Small providers. If a recipient with fewer than fifteen 
employees finds, after consultation with a handicapped person seeking 
its services, that there is no method of complying with Sec. 42.521(a) 
other than making a significant alteration in its existing facilities, 
the recipient may, as an alternative, refer the handicapped person to 
other available providers of those services that are accessible.
    (d) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within ninety days of the effective date 
of this subpart. However, where structural changes in facilities are 
necessary, such changes shall be made as expeditiously as possible and 
shall be completed no later than three years from the effective date of 
this subpart. If structural changes to facilities are necessary, a 
recipient shall, within six months of the effective date of this 
subpart, develop a written plan setting forth the steps that will be 
taken to complete the changes together with a schedule for making the 
changes. The plan shall be developed with the assistance of interested 
persons, including handicapped persons or organizations representing 
handicapped persons and shall be made available for public inspection. 
The plan shall, at a mininum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program to handicapped persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
full program accessibility and, if the time period of the transition 
plan is longer

[[Page 750]]

than one year, identify the steps that will be taken during each year of 
the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (e) Notice. The recipient shall adopt and implement procedures to 
insure that interested persons, including mentally retarded persons or 
persons with impaired vision or hearing, special learning problems, or 
other disabilities, can obtain information as to the existence and 
location of services, activities, and facilities that are accessible to 
and usable by handicapped persons.



Sec. 42.522  New construction.

    (a) Design and construction. Each new facility constructed by, on 
behalf of, or for the use of a recipient shall be designed and 
constructed in such a manner that the facility is readily accessible to 
and usable by handicapped persons, if the construction was commenced 
after the effective date of this subpart. Any alterations to existing 
facilities shall, to the maximum extent feasible, be made in an 
accessible manner. Any alterations to existing facilities shall, to the 
maximum extent feasible, be made in an accessible manner.
    (b) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of March 7, 1988, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (UFAS) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[45 FR 37622, June 3, 1980, as amended by Order 1249-88, 53 FR 3206, 
Feb. 4, 1988]

                               Procedures



Sec. 42.530  Procedures.

    (a) The procedural provisions applicable to title VI of the Civil 
Rights Act of 1964 (28 CFR 42.106-42.110) apply to this subpart except 
that the provision contained in Secs. 42.110(e) and 42.108(c)(3) which 
requires the Attorney General's approval before the imposition of any 
sanction against a recipient does not apply to programs funded by LEAA, 
NIJ, BJS, OJARS and OJJDP. The applicable provisions contain 
requirements for compliance information (Sec. 42.106), conduct of 
investigations (Sec. 42.107), procedure for effecting compliance 
(Sec. 42.108), hearings (Sec. 42.109), and decisions and notices 
(Sec. 42.110). (See appendix C.)
    (b) In the case of programs funded by LEAA, NIJ, BJS, OJARS and 
OJJDP, the timetables and standards for investigation of complaints and 
for the conduct of compliance reviews contained in Sec. 42.205(c)(1) 
through (c)(3) and Sec. 42.206 (c) and (d) are applicable to this 
subpart except that any finding of noncompliance shall be enforced as 
provided in paragraph (a) of this section. (See appendix D.)
    (c) In the case of programs funded by LEAA, NIJ, BJS, OJARS and 
OJJDP, the refusal to provide requested information under paragraph (a) 
of this section and Sec. 42.106 will be enforced pursuant to the 
provisions of section 803(a) of title I of the Omnibus Crime Control and 
Safe Streets Act, as amended by the Justice System Improvement Act of 
1979, Public Law 96-157, 93 Stat. 1167.
    (d) For acts of discrimination occurring prior to the effective date 
of this subpart, the 180-day limitation period for filing of complaints 
(Sec. 42.107 of this title) will apply from that date.
    (e) The Department will investigate complaints alleging 
discrimination in violation of section 504 occurring prior to the 
effective date of this subpart where the language of the statute or

[[Page 751]]

HEW's interagency guidelines (43 FR 2132, January 13, 1978) implementing 
Executive Order 11914 (41 FR 17871, April 28, 1976) provided notice that 
the challenged policy or practice was unlawful.

                               Definitions



Sec. 42.540  Definitions.

    As used in this subpart the term:
    (a) The Act means the Rehabilitation Act of 1973, Public Law 93-112, 
as amended (29 U.S.C. 701 et seq.).
    (b) Section 504 means section 504 of the Act (29 U.S.C. 794).
    (c) Department means the Department of Justice.
    (d) LEAA means the Law Enforcement Assistance Administration; NIJ 
means the National Institute of Justice; BJS means the Bureau of Justice 
Statistics; OJARS means the Office of Justice Assistance, Research and 
Statistics; OJJDP means Office of Juvenile Justice and Delinquency 
Prevention.
    (e) Recipient means any State or unit of local goverment, any 
instrumentality of a State or unit of local government, any public or 
private agency, institution, organization, or other public or private 
entity, or any person to which Federal financial assistance is extended 
directly or through another recipient, including any successor, 
assignee, or transferree of a recipient, but excluding the ultimate 
beneficiary of the assistance.
    (f) Federal financial assistance means any grant, cooperative 
agreement, loan, contract (other than a direct Federal procurement 
contract or a contract of insurance or guaranty), subgrant, contract 
under a grant or any other arrangement by which the Department provides 
or otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel;
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government;
    (4) Any other thing of value by way of grant, loan, contract or 
cooperative agreement.
    (g) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (h) The term program means the operations of the agency or 
organizational unit of government receiving or substantially benefiting 
from the Federal assistance awarded, e.g., a police department or 
department of corrections.
    (i) Ultimate beneficiary is one among a class of persons who are 
entitled to benefit from, or otherwise participate in, programs 
receiving Federal financial assistance and to whom the protections of 
this subpart extend. The ultimate beneficiary class may be the general 
public or some narrower group of persons.
    (j) Benefit includes provision of services, financial aid or 
disposition (i.e., treatment, handling, decision, sentencing, 
confinement, or other prescription of conduct).
    (k) Handicapped person. (1) Handicapped person means any person who 
(i) has a physical or mental impairment which substantially limits one 
or more major life activities, (ii) has a record of such an impairment, 
or (iii) is regarded as having such an impairment. For purposes of 
employment, such term does not include any individual who is an 
alcoholic or drug abuser whose current use of alcohol or drugs prevents 
such individual from performing the duties of the job in question or 
whose employment, by reason of such current alcohol or drug abuse, would 
constitute a direct threat to property or the safety of others.
    (2) As used in this subpart the phrase:
    (i) Physical or mental impairment means:
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive, digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine;

[[Page 752]]

    (B) Any mental or psychological disorder such as mental retardation, 
organic brain syndrome, emotional or mental illness, and specific 
learning disabilities.

The term physical or mental impairment includes, but is not limited to, 
such diseases and conditions as orthopedic, visual, speech, and hearing 
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple 
sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, and drug and alcohol abuse.
    (ii) Major life activities mean functions such as caring for one's 
self, performing manual tasks walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (iii) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (iv) Is regarded as having an impairment means:
    (A) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a recipient as 
constituting such a limitation;
    (B) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (C) Has none of the impairments defined in paragraph (k)(2)(i) of 
this section but is treated by a recipient as having such an impairment.
    (l) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question;
    (2) With respect to services, a handicapped person who meets the 
essential eligibility requirements for the receipt of such services.
    (m) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (k) of this section.
    (n) Drug abuse means:
    (1) The use of any drug or substance listed by the Department of 
Justice in 21 CFR 1308.11, under authority of the Controlled Substances 
Act, 21 U.S.C. 801, as a controlled substance unavailable for 
prescription because:
    (i) The drug or substance has a high potential for abuse,
    (ii) The drug or other substance has no currently accepted medical 
use in treatment in the United States,
    (iii) There is a lack of accepted safety for use of the drug or 
other substance under medical supervision;
    (2) The misuse of any drug or substance listed by the Department of 
Justice in 21 CFR 1308.12 through 1308.15 under authority of the 
Controlled Substances Act as a controlled substance available for 
prescription.

Examples of (1) include certain opiates and opiate derivatives (e.g., 
heroin) and hallucinogenic substances (e.g., marihuana, mescaline, 
peyote) and depressants (e.g., methaqualone). Examples of (2) include 
opium, coca leaves, methadone, amphetamines and barbiturates.
    (o) Alcohol abuse includes alcoholism but also means any misuse of 
alcohol which demonstrably interferes with a person's health, 
interpersonal relations or working.

                         Appendixes to Subpart G

Appendix A--Federal Financial Assistance Administered by the Department 
                of Justice to Which This Subpart Applies

    Note: Failure to list a type of Federal assistance in appendix A 
shall not mean, if section 504 is otherwise applicable, that a program 
is not covered.
    Editorial Note: For the text of appendix A to subpart G, see 
appendix A to subpart C of this part.

[Order No. 1204-87, 52 FR 24450, July 1, 1987]

                          Appendix B [Reserved]

 Appendix C--Department Regulations Under Title VI of the Civil Rights 
     Act of 1964 (28 CFR 42.106-42.110) Which Apply to This Subpart

    Editorial Note: For the text of appendix C, see Secs. 42.106 through 
42.110 of this part.

[[Page 753]]

Appendix D--OJARS' Regulations Under the Omnibus Crime Control and Safe 
Streets Act, as Amended, Which Apply to This Subpart (28 CFR 42.205 and 
                                 42.206)

    Editorial Note: For the text of appendix D, see Secs. 42.205 and 
42.206 of this part.



Subpart H--Procedures for Complaints of Employment Discrimination Filed 
           Against Recipients of Federal Financial Assistance

    Authority: E.O. 12250, 45 FR 72995, 3 CFR, 1980 Comp., p. 298; E.O. 
12067, 43 FR 28967, 3 CFR, 1978 Comp., p. 206.

    Source: Order No. 992-83, 48 FR 3577, Jan. 25, 1983, unless 
otherwise noted.



Sec. 42.601  Purpose and application.

    The purpose of this regulation is implement procedures for 
processing and resolving complaints of employment discrimination filed 
against recipients of Federal financial assistance subject to title VI 
of the Civil Rights Act of 1964, title IX of the Education Amendments of 
1972, the State and Local Fiscal Assistance Act of 1972, as amended, and 
provisions similar to title VI and title IX in Federal grant statutes. 
Enforcement of such provisions in Federal grant statutes is covered by 
this regulation to the extent they relate to prohibiting employment 
discrimination on the ground of race, color, national origin, religion 
or sex in programs receiving Federal financial assistance of the type 
subject to title VI or title IX. This regulation does not, however, 
apply to the Omnibus Crime Control and Safe Streets Act of 1968, as 
amended, the Juvenile Justice and Delinquency Prevention Act, as 
amended, the Comprehensive Employment Training Act of 1973, as amended, 
or Executive Order 11246.



Sec. 42.602  Exchange of information.

    EEOC and agencies shall share any information relating to the 
employment policies and practices of recipients of federal financial 
assistance that may assist each office in carrying out its 
responsibilities. Such information shall include, but not necessarily be 
limited to, affirmative action programs, annual employment reports, 
complaints, investigative files, conciliation or compliance agreements, 
and compliance review reports and files.



Sec. 42.603  Confidentiality.

    When an agency receives information obtained by EEOC, the agency 
shall observe the confidentiality requirements of sections 706(b) and 
709(e) of title VII as would EEOC, except in cases where the agency 
receives the same information from a source independent of EEOC or has 
referred a joint complaint to EEOC under this regulation. In such cases, 
the agency may use independent source information or information 
obtained by EEOC under the agency's investigative authority in a 
subsequent title VI, title IX or revenue sharing act enforcement 
proceeding. Agency questions concerning confidentiality shall be 
directed to the Associate Legal Counsel for Legal Services, Office of 
Legal Counsel of EEOC.



Sec. 42.604  Standards for investigation, reviews and hearings.

    In any investigation, compliance review, hearing or other 
proceeding, agencies shall consider title VII case law and EEOC 
Guidelines, 29 CFR parts 1604 through 1607, unless inapplicable, in 
determining whether a recipient of Federal financial assistance has 
engaged in an unlawful employment practice.



Sec. 42.605  Agency processing of complaints of employment discrimination.

    (a) Within ten days of receipt of a complaint of employment 
discrimination, an agency shall notify the respondent that it has 
received a complaint of employment discrimination, including the date, 
place and circumstances of the alleged unlawful employment practice.
    (b) Within thirty days of receipt of a complaint of employment 
discrimination an agency shall:
    (1) Determine whether it has jurisdiction over the complaint under 
title VI, title IX, or the revenue sharing act; and
    (2) Determine whether EEOC may have jurisdiction over the complaint 
under title VII of or the Equal Pay Act.

[[Page 754]]

    (c) An agency shall transfer to EEOC a complaint of employment 
discrimination over which it does not have jurisdiction but over which 
EEOC may have jurisdiction within thirty days of receipt of a complaint. 
At the same time, the agency shall notify the complainant and the 
respondent of the transfer, the reason for the transfer, the location of 
the EEOC office to which the complaint was transferred and that the date 
the agency received the complaint will be deemed the date it was 
received by EEOC.
    (d) If any agency determines that a complaint of employment 
discrimination is a joint complaint, then the agency may refer the 
complaint to EEOC. The agency need not consult with EEOC prior to such a 
referral. An agency referral of a joint complaint should occur within 
thirty days of receipt of the complaint.
    (e) An agency shall refer to EEOC all joint complaints solely 
alleging employment discrimination against an individual. If an agency 
determines that special circumstances warrant its investigation of such 
a joint complaint, then the agency shall determine whether the 
complainant has filed a similar charge of employment discrimination with 
EEOC.
    (1) If an agency determines that the complainant has filed a similar 
charge of employment discrimination with EEOC, then the agency may 
investigate the complaint if EEOC agrees to defer its investigation 
pending the agency investigation.
    (2) If an agency determines that the complainant has not filed a 
similar charge of employment discrimination with the EEOC, then the 
agency may investigate the complaint if special circumstances warrant 
such action. In such cases, EEOC shall defer its investigation of the 
referred joint complaint pending the agency investigation.
    (f) An agency shall not refer to EEOC a joint complaint alleging a 
pattern or practice of employment discrimination unless special 
circumstances warrant agency referral of the complaint to EEOC.
    (g) If a joint complaint alleges discrimination in employment and in 
other practices of a recipient, an agency should, absent special 
circumstances, handle the entire complaint under the agency's own 
investigation procedures. In such cases, the agency shall determine 
whether the complainant has filed a similar charge of employment 
discrimination with EEOC. If such a charge has been filed, the agency 
and EEOC shall coordinate their activities. Upon agency request, EEOC 
should ordinarily defer its investigation pending the agency 
investigation.
    (h) When a joint complaint is referred to EEOC for investigation, 
the agency shall advise EEOC of the relevant civil rights provision(s) 
applicable to the employment practices of the recipient, whether the 
agency wants to receive advance notice of any conciliation negotiations, 
whether the agency wants EEOC to seek information concerning the 
relationship between the alleged discrimination and the recipient's 
Federally assisted programs or activities and, where appropriate, 
whether a primary objective of the Federal financial assistance is to 
provide employment. The agency shall also notify the complainant and the 
recipient of the referral, the location of the EEOC office to which the 
complaint was referred, the identity of the civil rights provision(s) 
involved, the authority of EEOC under this regulation and that the date 
the agency received the complaint will be deemed the date it was 
received by EEOC. Specifically, the notice shall inform the recipient 
that the agency has delegated to EEOC its investigative authority under 
title VI, title IX, or the revenue sharing act, and the relevant act's 
implementing regulations. The agency, therefore, may use information 
obtained by EEOC under the agency's investigative authority in a 
subsequent title VI, title IX or revenue sharing act enforcement 
proceeding.

[Order No. 992-83, 48 FR 3577, Jan. 25, 1983, as amended at 61 FR 33658, 
June 28, 1996]



Sec. 42.606  General rules concerning EEOC action on complaints.

    (a) A complaint of employment discrimination filed with an agency, 
which is transferred or referred to EEOC under this regulation, shall be 
deemed a charge received by EEOC. For all purposes under title VII and 
the

[[Page 755]]

Equal Pay Act, the date such a complaint was received by an agency shall 
be deemed the date it was received by EEOC.
    (b) When EEOC investigates a joint complaint it shall, where 
appropriate, seek sufficient information to allow the referring agency 
to determine whether the alleged employment discrimination is in a 
program or activity that receives Federal financial assistance and/or 
whether the alleged employment discrimination causes discrimination with 
respect to beneficiaries or potential beneficiaries of the assisted 
program.
    (c) Upon referral of a joint complaint alleging a pattern or 
practice of employment discrimination, EEOC generally will limit its 
investigation to the allegation(s) which directly affect the 
complainant.
    (d) If EEOC, in the course of an investigation of a joint complaint, 
is unable to obtain information from a recipient through voluntary 
means, EEOC shall consult with the referring agency to determine an 
appropriate course of action.
    (e) If EEOC agrees to defer its investigation of a complaint of 
employment discrimination pending an agency investigation of the 
complaint, then EEOC shall give due weight to the agency's determination 
concerning the complaint.



Sec. 42.607  EEOC dismissals of complaints.

    If EEOC determines that the title VII allegations of a joint 
complaint should be dismissed, EEOC shall notify the complainant and the 
recipient of the reason for the dismissal and the effect the dismissal 
has on the complainant's rights under the relevant civil rights 
provision(s) of the referring agency, and issue a notice of right to sue 
under title VII. At the same time, EEOC shall transmit to the referring 
agency a copy of EEOC's file.



Sec. 42.608  Agency action on complaints dismissed by EEOC.

    Upon EEOC's transmittal of a dismissal under Sec. 42.607 of this 
regulation, the referring agency shall determine within thirty days, 
what, if any, action the agency intends to take with respect to the 
complaint and then notify the complainant and the recipient. In reaching 
that determination, the referring agency shall give due weight to EEOC's 
determination that the title VII allegations of the joint complaint 
should be dismissed. If the referring agency decides to take action with 
respect to a complaint that EEOC has dismissed for lack of reasonable 
cause to believe that title VII has been violated, the agency shall 
notify the Assistant Attorney General and the Chairman of the EEOC in 
writing of the action it plans to take and the basis of its decision to 
take such action.



Sec. 42.609  EEOC reasonable cause determination and conciliation efforts.

    (a) If EEOC, after investigation of a joint complaint, determines 
that reasonable cause exists to believe that title VII has been 
violated, EEOC shall advise the referring agency, the complainant and 
the recipient of that determination and attempt to resolve the complaint 
by informal methods of conference, conciliation and persuasion. If EEOC 
would like the referring agency to participate in conciliation 
negotiations, EEOC shall so notify the agency and the agency shall 
participate. EEOC shall provide advance notice of any conciliation 
negotiations to referring agencies that request such notice, whether or 
not EEOC requests their participation in the negotiations.
    (b) If EEOC's efforts to resolve the complaint by informal methods 
of conference, conciliation and persuasion fail, EEOC shall:
    (1) Issue a notice of failure of conciliation to the recipient in 
accordance with 29 CFR 1601.25;
    (2) Transmit to the referring agency a copy of EEOC's investigative 
file, including its Letter of Determination and notice of failure 
conciliation;
    (3) If the recipient is not a government, governmental entity or 
political subdivision, determine whether EEOC will bring suit under 
title VII and, in accordance with 29 CFR 1601.28, issue a notice of 
right to sue under title VII;
    (4) If the recipient is a government, governmental entity or 
political subdivision, refer the matter to the Attorney General in 
accordance with 29 CFR 1601.29. The Attorney General, or his or

[[Page 756]]

her delegate, will determine whether the Department of Justice will 
bring suit under title VII and, in accordance with 29 CFR 1601.28, issue 
a notice of right to sue under title VII.



Sec. 42.610  Agency enforcement of unresolved complaints.

    (a) Upon EEOC's transmittal of a reasonable cause determination and 
notice of failure of conciliation under Sec. 42.609(b)(2) of this 
regulation, the referring agency shall determine, within thirty days, 
whether the recipient has violated any applicable civil rights 
provision(s) which the agency has a responsibility to enforce. The 
referring agency shall give due weight to EEOC's determination that 
reasonable cause exists to believe that title VII has been violated.
    (b) If the referring agency determines that the recipient has 
violated any applicable civil rights provision(s) which the agency has a 
responsibility to enforce, the agency shall so notify the complainant 
and the recipient and determine whether further efforts to obtain 
voluntary compliance are warranted. In reaching that determination, the 
agency shall give due weight to the failure of EEOC's efforts to resolve 
the complaint by informal methods. If the referring agency determines 
that further efforts to obtain voluntary compliance are not warranted or 
if such further efforts fail, the agency shall initiate appropriate 
enforcement proceedings under its own regulations.
    (c) If the referring agency determines that the recipient has not 
violated any applicable civil rights provision(s) which the agency has a 
responsibility to enforce, the agency shall notify the complainant, the 
recipient, the Assistant Attorney General and the Chairman of the EEOC 
in writing of the basis of that determination.



Sec. 42.611  EEOC negotiated settlements and conciliation agreements.

    If the parties enter into a negotiated settlement (as described in 
29 CFR 1601.20) prior to a determination or a conciliation agreement (as 
described in 29 CFR 1601.24) after a determination, EEOC shall notify 
the referring agency that the complaint has been settled. The agency 
shall take no further action on the complaint of employment 
discrimination thereafter except that the agency may take the existence 
of the complaint into account in scheduling the recipient for a review 
under the agency's regulations.



Sec. 42.612  Interagency consultation.

    (a) Before investigating whether the employment practices of a 
recipient of Federal financial assistance constitute a pattern or 
practice of unlawful discrimination or initiating formal administrative 
enforcement procedures on that basis, an agency shall, to the extent 
practical, consult with the Chairman of the EEOC and the Assistant 
Attorney General to assure that duplication of effort will be minimized.
    (b) Prior to the initiation of any legal action against a recipient 
of Federal financial assistance alleging unlawful employment practices, 
the Department of Justice and/or EEOC shall, to the extent practical, 
notify the appropriate agency or agencies of the proposed action and the 
substance of the allegations.



Sec. 42.613  Definitions.

    As used in this regulation, the term:
    (a) Agency means any Federal department or agency which extends 
Federal financial assistance subject to any civil rights provision(s) to 
which this regulation applies.
    (b) Assistant Attorney General refers to the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice, or 
his or her delegate.
    (c) Chairman of the EEOC refers to the Chairman of the Equal 
Employment Opportunity Commission, or his or her delegate.
    (d) EEOC means the Equal Empoyment Opportunity Commission and, where 
appropriate, any of its District Offices.
    (e) Federal financial assistance includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without

[[Page 757]]

consideration or at a nominal consideration, or at a consideration which 
is reduced for the purpose of assisting the recipient, or in recognition 
of the public interest to be served by such sale or lease to the 
recipient, and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.

    For purposes of this regulation, the term Federal financial 
assistance also includes funds disbursed under the revenue sharing act.
    (f) Joint complaint means a complaint of employment discrimination 
covered by title VII or the Equal Pay Act and by title VI, title IX, or 
the revenue sharing act.
    (g) Recipient means any State, political subdivision of any State, 
or instrumentality of any State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assign, or transferee thereof, but such term 
does not include any ultimate beneficiary under such program.
    (h) Revenue sharing act refers to the State and Local Fiscal 
Assistance Act of 1972, as amended, 31 U.S.C. 1221 et seq. 
    (i) Title VI refers to title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d to 2000d-4. Where appropriate, title VI also refers to the 
civil rights provisions of other Federal statutes or regulations to the 
extent that they prohibit employment discrimination on the ground or 
race, color, religion, sex or national origin in programs receiving 
Federal financial assistance of the type subject to title VI itself.
    (j) Title VII refers to title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. 2000e, et seq. 
    (k) Title IX refers to title IX of the Education Amendments of 1972, 
20 U.S.C. 1681 to 1683.



 Subpart I--Nondiscrimination on the Basis of Age in Federally Assisted 
Programs and Activities; Implementation of the Age Discrimination Act of 
                                  1975

    Authority: 42 U.S.C. 6103(a)(4); 45 CFR part 90.

    Source: Order No. 1843-94, 59 FR 6560, Feb. 11, 1994, unless 
otherwise noted.

                           General Provisions



Sec. 42.700  Purpose.

    (a) This subpart implements the Age Discrimination Act of 1975, as 
amended (42 U.S.C. 5101-6107) (Act). Subject to certain exceptions, the 
Act prohibits discrimination on the basis of age in programs or 
activities receiving federal financial assistance.
    (b) The Secretary of Health and Human Services has issued a general 
regulation (45 CFR part 90) to guide other federal agencies regarding 
implementation of the Act. This subpart is generally based upon that 
general regulation.



Sec. 42.701  Application.

    (a) This subpart applies to each program or activity that receives 
federal financial assistance from the Department of Justice.
    (b) This subpart does not apply to employment practices, except to 
those occurring in programs that receive federal financial assistance 
under the Job Training Partnership Act.



Sec. 42.702  Definitions.

    As used in this subpart, the term:
    Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101-6107.
    Action means any act, activity, policy, rule, standard, or method of 
administration; or the use of any policy, rule, standard, or method of 
administration.
    Age distinction means any action using age or an age-related term.
    Age-related term means a term that necessarily implies a particular 
age or

[[Page 758]]

range of ages (e.g., ``youth,'' ``juvenile,'' ``adult,'' ``older 
persons,'' but not ``student'').
    Department means the Department of Justice.
    Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the Department provides assistance in the form of:
    (1) Funds;
    (2) Services of federal personnel; or
    (3) Real or personal property or any interest in or use of such 
property, including--
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
federal share of its fair market value is not returned to the federal 
government.
    FMCS means the Federal Mediation and Conciliation Service.
    OJP means the Office of Justice Programs. OJP coordinates the work 
of the Bureau of Justice Assistance, the National Institute of Justice, 
the Bureau of Justice Statistics, and the Office of Juvenile Justice and 
Delinquency Prevention; OJP includes the Office for Victims of Crime.
    Program or activity means all of the operations of--
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a state or of a local government;
    (ii) The entity of such state and local government that distributes 
such assistance and each such department or agency (and each other state 
or local government entity) to which the assistance is extended, in the 
cases of assistance to a state or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in section 198(a)(10) of 
the Elementary and Secondary Education Act of 1965, 20 U.S.C. 2891(12)), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) If such entity is principally engaged in the business of 
providing education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition, any 
part of which is extended federal financial assistance.
    Recipient means any state or political subdivision, any 
instrumentality of a State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which federal financial assistance is extended, directly or 
through another recipient. ``Recipient'' includes any successor, 
assignee, or transferee, but does not include the ultimate beneficiary 
of the assistance.
    Secretary means the Secretary of Health and Human Services or his or 
her designee.
    United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Trust Territory of the Pacific Islands, the Northern Marinas, and the 
territories and possessions of the United States.
Secs. 42.703-42.709  [Reserved]

              Standards for Determining Age Discrimination



Sec. 42.710  General prohibition.

    (a) Subject to the exceptions discussed in Secs. 42.711-42.713, no 
person in the United States shall, on the basis of age, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination in any program or activity to which this subpart applies. 
This prohibition applies to actions taken by a recipient, directly or

[[Page 759]]

through contractual or other arrangements, that have the purpose or 
effect of discriminating on the basis of age.
    (b) This prohibition encompasses treatment of elderly persons, 
children and any other age group. Unless one of the exception applies, 
the recipient may use neither a minimum age limit nor a maximum age 
limit in connection with receipt of benefits or services or other 
participation in a program subject to this subpart.



Sec. 42.711  Exception; authorized by law.

    (a) This subpart does not apply to an age distinction contained in a 
portion of a federal or state statute or a local statute or ordinance 
adopted by an elected, general-purpose legislative body which portion:
    (1) Provides any benefits or assistance to persons on the basis of 
age;
    (2) Establishes criteria for participation in age-related terms; or
    (3) Describes intended beneficiaries or target groups in age-related 
terms.
    (b) The exception set forth in paragraph (a) of this section does 
not extend to regulations adopted by an administrative agency pursuant 
to a specific statutory provision or otherwise.



Sec. 42.712  Exception; normal operation or statutory objective.

    (a) A recipient may take an action that would otherwise be 
prohibited by Sec. 42.710(a), if such action reasonably takes age into 
account as a factor necessary to the normal operation of or the 
achievement of any statutory objective of the program or activity.
    (1) Normal operation refers to the operation of a program or 
activity without significant changes that would impair its ability to 
meet its objectives.
    (2) A statutory objective of a program is a purpose that is 
expressly stated in a federal or state statute or a local statute or 
ordinance adopted by an elected, general-purpose body.
    (b) This exception applies when the following test is met--
    (1) Age is used as a measure or approximation of one or more other 
characteristics;
    (2) The other characteristic must be measured or approximated in 
order to continue the normal operation of the program or to achieve any 
statutory objective of the program;
    (3) The other characteristic can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic is impractical to measure directly on 
an individual basis.
    (c) The question whether an age distinction comes within this 
section depends upon the particular facts, including the nature and 
purpose of the program, the basis for and the nature and purpose of the 
age distinction, and the manner in which the age distinction is used.



Sec. 42.713  Exception; reasonable factors other than age.

    (a) A recipient may take an action, otherwise prohibited by 
Sec. 42.710(a), that affects age groups differently, if such 
differentiation is based upon reasonable factors other than age.
    (b) This exception does not apply to the use of an explicit age 
distinction, but to conduct that has the effect of differentiating among 
age groups. This exception applies when the factor (other than age) upon 
which the recipient's action is based bears a direct and substantial 
relationship to the normal operation of or achievement of a statutory 
objective of the program.



Sec. 42.714  Special benefits.

    If a recipient operating a program provides special benefits to the 
elderly or to children, such use of age distinctions shall be presumed 
to be necessary to the normal operation of the program, notwithstanding 
the provisions of Sec. 42.712.



Sec. 42.715  Burden of proof regarding exceptions.

    The burden of proving that an age distinction or other action falls 
within the exceptions described in Sec. 42.712 and Sec. 42.713 is on the 
recipient. This allocation of the burden of proof applies in proceedings 
by the Department to enforce the Act.

[[Page 760]]

Secs. 42.716-42.719  [Reserved]

                          Duties of Recipients



Sec. 42.720  General responsibility.

    Regarding any program subject to this subpart, the recipient has 
primary responsibility to ensure compliance with the Act and this 
subpart. The recipient also has responsibility to maintain records, 
provide information, and to afford access to its records to the 
Department to the extent required to determine whether it is in 
compliance with the Act.



Sec. 42.721  Notice to subrecipients.

    Any recipient that receives federal financial assistance from the 
Department and extends such assistance to subrecipients shall give its 
subrecipients written notice of their obligations under this subpart.



Sec. 42.722  Receipient assessment of age distinctions.

    (a) As part of a compliance review under Sec. 42.730 or complaint 
investigation under Sec. 42.731, the Department may require a recipient 
employing the equivalent of 15 or more employees to complete a written 
self-evaluation, in a manner specified by the responsible Department 
official, of any age distinction imposed in its program or activity 
receiving federal financial assistance from the Department to assess the 
recipient's compliance with the Act.
    (b) Whenever a recipient assessment indicates a violation of the Act 
and this subpart, the recipient shall take corrective action.



Sec. 42.723  Compliance information.

    (a) Upon request by the Department, a recipient shall make available 
to the Department information necessary to determine whether the 
recipient is complying with this subpart.
    (b) Each recipient shall permit reasonable access by the Department 
to the recipient's facilities, books, records and other sources of 
information concerning the recipient's compliance with this subpart.



Sec. 42.724  Remedial and affirmative action.

    (a) If the Department finds that, in violation of this subpart, a 
recipient has discriminated on the basis of age, the recipient shall 
take remedial action that the Department considers necessary to overcome 
the effects of the discrimination.
    (b) Even in the absence of a finding of discrimination, a recipient, 
in administering a program, may take steps to overcome the effects of 
conditions that resulted in limited participation on the basis of age.



Sec. 42.725  Assurance of compliance.

    Each recipient of federal financial assistance from the Department 
shall sign a written assurance as specified by the Department that it 
will comply with this subpart in its federally assisted programs and 
activities.
Secs. 42.726--42.729  [Reserved]

                          Compliance Procedures



Sec. 42.730  Compliance reviews.

    The Department may conduct a pre-award or post-award compliance 
review of an applicant or a recipient to determine compliance with this 
subpart. When a compliance review indicates probably noncompliance, the 
Department shall inform the applicant or recipient and shall promptly 
begin enforcement as described in Sec. 42.733.



Sec. 42.731  Complaints.

    (a) General. This section provides for the filing, by aggrieved 
persons, of complaints alleging violation of this subpart. Although the 
complaint process is limited to aggrieved persons, any person who has 
information regarding a possible violation of this subpart may provide 
it to the Department.
    (b) Receipt of complaints. (1) Any aggrieved person, individually or 
as a member of a class, may file with the Department a written complaint 
alleging a violation of this subpart. A complaint may be filed by a 
representative of an aggrieved person. A complaint must be filed within 
180 days of the date the complaint first knew of the alleged violation. 
However, this time

[[Page 761]]

limit may, for good cause shown, be extended by the Department.
    (2) The Department shall promptly review each such complaint for 
sufficiency. A complaint will be deemed sufficient if it--
    (i) Describes an action that may constitute a violation of this 
subpart; and
    (ii) Contains information necessary for further processing (i.e., 
identifies the parties involved, states the date when the complainant 
first learned of the alleged violation, and is signed by the 
complainant).
    (3) When a complaint is deemed sufficient, the Department shall 
promptly refer it to the FMCS for mediation.
    (4) When a complaint is deemed insufficient, the Department shall 
advise the complainant of the reasons for that determination. A 
complainant shall be freely permitted to add information necessary for 
further processing.
    (c) Representation of parties. During each stage of the complaint 
process, the complainant and the recipient may be represented by an 
attorney or other representative.
    (d) Assistance from the Department. Any complainant or recipient may 
request from the Department information regarding the complaint process.
    (e) Mediation. (1) When a complaint is referred for mediation, the 
complainant and the recipient shall participate in the mediation process 
to the extent necessary either to reach an agreement or to enable the 
mediator to determine that no agreement can be reached. No determination 
that an agreement is not possible shall be made until the mediator has 
conferred at least once, jointly or separately, with each of the 
parties.
    (2) If the complainant and the recipient reach an agreement, they 
shall reduce the agreement to writing and sign it. The mediator shall 
send a copy of the agreement to the Department.
    (3) If, after 60 days after the Department's receipt of a complaint, 
no agreement is reached or if, within that 60-day period, the mediator 
determines that no agreement can be reached, the mediator shall return 
the complaint to the Department.
    (4) The mediator shall protect the confidentiality of information 
obtained during the mediation process. No mediator shall testify in any 
adjudicative proceeding, produce any document, or otherwise disclose any 
information obtained during the mediation process without prior approval 
of the Director of the FMCS.
    (f) Department investigations. The Department shall promptly 
investigate any complaint that is unresolved after mediation or is 
reopened because of violation of a mediation agreement. An investigation 
should include a review of the pertinent actions or practices of the 
recipient and the circumstances under which the alleged discrimination 
occurred. During an investigation the Department shall take appropriate 
steps to obtain informal resolution of the complaint.
    (g) Resolution of matters. (1) Where, prior to any finding by the 
Department of probable noncompliance with this subpart, discussions 
between the Department and the parties result in settlement of a 
complaint, the Department shall prepare an agreement to be signed by the 
parties and an authorized official of the Department. A settlement shall 
not affect the operation of any other enforcement efforts of the 
Department, including compliance reviews or investigation of other 
complaints involving the recipient.
    (2) If the Department determines that an investigation pursuant to 
paragraph (f) of this section indicates probable noncompliance with this 
subpart, the Department shall inform the recipient and shall promptly 
begin enforcement pursuant to Sec. 42.733.
    (3) If the Department determines that an investigation does not 
indicate probable noncompliance, the Department shall inform the 
recipient and the complainant. The Department shall also inform the 
complainant of his or her right to bring a civil action as described in 
Sec. 42.736.



Sec. 42.732  Prohibition against intimidation.

    A recipient may not intimidate or retaliate against any person who 
attempts to assert a right secured by the Act and this suppart or who 
cooperates in any mediation, investigation, hearing, or other aspect of 
the Department's compliance procedure.

[[Page 762]]



Sec. 42.733  Enforcement procedures.

    (a) Voluntary compliance. When a compliance review or complaint 
investigation results in a finding of probable noncompliance with this 
subpart, the Department shall attempt to obtain voluntary compliance. An 
agreement for voluntary compliance shall describe the corrective action 
to be taken and time limits for such action and shall be signed by the 
recipient and an authorized official of the Department.
    (b) Means of enforcement--(1) General. (i) The Department may seek 
to enforce this subpart--
    (A) By administrative proceedings that may lead to termination or 
refusal of federal financial assistance to the particular program; or
    (B) By any other means authorized by law. Such other means include 
lawsuits by the Department of enjoin violations of this subpart.
    (ii) To the extent consistent with the Act, the Department, in 
enforcing this subpart, shall follow the procedures applicable to 
enforcement of title VI of the Civil Rights Act of 1964.
    (2) Termination of federal financial assistance. With regard to 
enforcement of this subpart through the termination or refusal of 
federal financial assistance, the Department shall follow the provisions 
of its title VI regulation concerning notice (28 CFR 42.180(c)), 
hearings (28 CFR 42.109), and decisions (28 CFR 42.110). However, with 
respect to programs receiving federal financial assistance from a 
component of the Department's Office of Justice Programs (OJP), the 
requirement of 28 CFR 42.110(e) that a sanction be approved by the 
Attorney General shall not apply; that function may be performed by the 
Assistant Attorney General, OJP.
    (3) Other means of enforcement. With regard to enforcement of this 
subpart through other means, the Department shall follow the procedures 
of 28 CFR 42.108(d). In addition, at least 30 days before commencing a 
lawsuit or taking other action pursuant to paragraph (b)(1)(i)(A) of 
this section, the Department shall send an appropriate report to the 
committees of the House of Representatives and the Senate having 
legislative jurisdiction over the program involved.
    (c) Deferral. When a proceeding for the termination or refusal or 
federal financial assistance is initiated pursuant to paragraph 
(b)(1)(i)(A) of this section, the Department may defer granting new 
federal financial assistance to the recipient.
    (1) New federal financial assistance includes any assistance for 
which, during the deferral period, the Department requires an 
application or approval, including renewal or continuation of existing 
activities or authorization of new activities. New federal financial 
assistance does not include assistance approved prior to initiation of 
the administrative proceeding or increases in funding as a result of a 
change in the manner of computing formula awards.
    (2) A deferral may not begin until the recipient has received a 
notice of opportunity for a hearing. A deferral may not continue for 
more than 60 days unless a hearing has begun within that time or the 
time for beginning the hearing has been extended by mutual consent of 
the recipient and the Department. A deferral may not continue for more 
than 30 days after the close of the hearing, unless the hearing results 
in a finding against the recipient.



Sec. 42.734  Alternative funding.

    When assistance to a recipient is terminated or refused pursuant to 
Sec. 42.733(b)(1)(i)(A), the Department may disburse the withheld funds 
directly to an alternate recipient serving the same area (i.e., a public 
or nonprofit private organization or agency or state or political 
subdivision of the state). Any such alternate recipient must demonstrate 
the ability to comply with the requirements of this subpart and to 
achieve the goals of the federal statute authorizing the assistance.



Sec. 42.735  Judicial review.

    A final decision of the Department in an administrative proceeding 
pursuant to Sec. 42.733(b)(1)(i)(A) is subject to judicial review as 
provided in section 306 of the Act, 42 U.S.C. 6105.



Sec. 42.736  Private lawsuits.

    (a) Upon exhausting administrative remedies under the Act, a 
complainant

[[Page 763]]

may file a civil action to enjoin a violation of the Act. Administrative 
remedies are exhausted if--
    (1) 180 days have elapsed since the complainant filed the complaint 
and the Department has made no finding with regard to the complaint; or
    (2) The Department issues a finding, pursuant to Sec. 42.731(g)(3), 
in favor of the recipient.
    (b) Whenever administrative remedies are exhausted in accord with 
paragraph (a) of this section, the Department shall promptly inform the 
complainant that
    (1) The complainant may bring a civil action in a United States 
district court for the district in which the recipient is located or 
transacts business;
    (2) A complainant who prevails in such an action has the right to be 
awarded reasonable attorney's fees, if the complainant demands such an 
award in the complaint initiating the lawsuit;
    (3) Before commencing the action, the complainant must give 30 days' 
notice by registered mail to the Secretary, the Attorney General, and 
the recipient;
    (4) The notice must state the nature of the alleged violation, the 
relief requested, the court in which the action will be brought, and 
whether attorney's fees will be demanded; and
    (5) The complainant may not bring an action if the same alleged 
violation by the recipient is the subject of a pending action in any 
court of the United States.
Secs. 42.737-42.799  [Reserved]

    Appendix A to Subpart I of Part 42--Federal Financial Assistance 
 Administered by the Department of Justice to Which This Subpart Applies

    Note: Failure to list a type of federal assistance in appendix A 
shall not mean, if the Age Discrimination Act is otherwise applicable, 
that a program or activity is not covered. For the text of appendix A to 
subpart I, see appendix A to subpart C of this part.

Appendix B to Subpart I of Part 42--Age Distinctions in Federal Statutes 
   or Regulations Affecting Financial Assistance Administered by the 
                          Department of Justice

    Section 90.31(f) of HHS' the general regulations (45 CFR Part 90) 
requires each federal agency to publish an appendix to its final 
regulation containing a list of age distinctions in federal statutes and 
regulations affecting financial assistance administered by the agency. 
This appendix is the Department's list of federal statutes and 
Department regulations that contain age distinctions that:
    (1) Provide benefits or assistance to persons based upon age; or
    (2) Establish criteria for participation in age-related terms; or
    (3) Describe intended beneficiaries or target groups in age-related 
terms.
    The Department administers financial assistance under the Juvenile 
Justice and Delinquency Prevention Act of 1974, as amended (42 U.S.C. 
5601-5672). This statute reflects the basic distinction between criminal 
justice systems for adults and juvenile justice systems, and the entire 
statute is predicated upon making distinctions on the basis of age 
between juveniles and adults. Such age distinctions are set forth 
throughout this statute, including provisions establishing programs of 
financial assistance to juvenile justice systems and for purposes 
related to the prevention of juvenile delinquency. The Department's 
current regulations pertaining to formula grants under this statute are 
set forth at 28 CFR part 31 (CFDA No. 16.540). In order to implement the 
statutory purposes, these regulations reflect the same age distinctions 
between juveniles and adults as are contained in the statute. The same 
statute also provides for discretionary special emphasis grants for 
which there are program announcements issued (CFDA No. 16.541), and this 
program also necessarily reflects the basic statutory distinction based 
on age.
    The Department is authorized to extend financial assistance under 
the Missing Children's Assistance Act, as amended (42 U.S.C. 5771-5777). 
This law is concerned with problems related to missing children, and, 
thus, it contains many age-related references to children, including 
references in connection with the provision of financial assistance. 
Program announcements are issued in connection with this program (CFDA 
No. 16.543).
    The Department is authorized to extend financial assistance pursuant 
to the Omnibus Crime Control and Safe Streets Act of 1968, as amended 
(42 U.S.C. 3701-3797). Among the

[[Page 764]]

statutory purposes of this law is the provision of grants addressing 
problems related to juvenile delinquency and problems related to crimes 
committed against elderly persons. Accordingly, this law also reflects 
the basic distinction between criminal justice systems for adults and 
juvenile justice systems. This law also singles out elderly persons as a 
special target group to benefit from its programs. The Department's 
regulations concerning block grants authorized under this statute are 
set forth at 28 CFR part 33. These regulations reflect the statutory 
authorizations for such block grants, which specifically authorize funds 
for, among other things, programs addressing problems related to 
juvenile delinquency and programs addressing the problem of crimes 
committed against elderly persons (CFDA No. 16.573). Similarly, the 
statute provides for discretionary grants to enhance and complement the 
block grants (CFDA No. 16.574) and has been amended to provide a focus 
on narcotics control (CFDA No. 16.580).
    The Department is authorized to extend financial assistance under 
the Victims of Crime Act of 1984, as amended (42 U.S.C. 10601-10604). 
Among other things, in order to qualify for funds under one grant 
program, a state must certify that priority will be given to eligible 
crime victim assistance programs that help victims of certain crimes, 
including child abuse. In addition, among the services to victims of 
crime for which funding is available is ``short term child care 
services'' (CFDA Nos. 16.575 and 16.576).
    The Department is authorized to make grants to Native American 
Indian tribes with funds reserved to the Office of Victims of Crime 
under the Victims of Crime act of 1984, as amended (42 U.S.C. 10601(g)). 
The primary purpose of the funding is to assist Native American Indian 
tribes with handling child abuse cases, particularly child sexual abuse 
(CFDA No. 16.583).
    The Department is authorized to extend financial assistance to state 
and local authorities for narcotics control under the Anti-Drug Abuse 
Act of 1988 (Pub. L. 100-690, 102 Stat. 4181), which extends and/or 
modifies each of the previously noted laws. The statute reflects the 
basic distinction between criminal justice systems for adults and 
juveniles (CFDA Nos. 16.579 and 16.582).
[[Page 765]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 767]]

            Material Approved for Incorporation by Reference

                      (Revised as of July 1, 1997)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


28 CFR CHAPTER I (PARTS 1 TO 42)

DEPARTMENT OF JUSTICE
                                                                  28 CFR


American National Standards Institute

  1430 Broadway, New York, NY 10018
ANSI A117.1-61 (R 71) Specifications for Making                   42.522
  Buildings and Facilities Accessible to, and 
  Usable by, the Physically Handicapped.



[[Page 769]]



                    Table of CFR Titles and Chapters




                      (Revised as of June 20, 1997)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)

[[Page 770]]

      XXIV  Federal Energy Regulatory Commission (Part 3401)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Consumer Service, Department of Agriculture 
                (Parts 210--299)

[[Page 771]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
      XIII  Northeast Dairy Compact Commission (Parts 1300--1399)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of Finance and Management, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)

[[Page 772]]

     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
        XV  Office of the Federal Inspector for the Alaska Natural 
                Gas Transportation System (Parts 1500--1599)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)

[[Page 773]]

      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)

[[Page 774]]

            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)

[[Page 775]]

        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

[[Page 776]]

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)

[[Page 777]]

       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 778]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

[[Page 779]]

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

[[Page 780]]

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       301  Travel Allowances (Parts 301-1--301-99)
       302  Relocation Allowances (Parts 302-1--302-99)

[[Page 781]]

       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)

[[Page 782]]

         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  ACTION (Parts 1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)

[[Page 783]]

        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)

[[Page 784]]

        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            Acts Requiring Publication in the Federal Register
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 785]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of June 20, 1997)

                                                  CFR Title, Subtitle or
                     Agency                               Chapter

ACTION                                            45, XII
Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Finance and Management, Office of               7, XXX
  Food and Consumer Service                       7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alaska Natural Gas Transportation System, Office  10, XV
     of the Federal Inspector
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII

[[Page 786]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51

[[Page 787]]

  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Defense Mapping Agency                          32, I
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Mapping Agency                            32, I
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I

[[Page 788]]

  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Inspector for the Alaska Natural Gas      10, XV
     Transportation System, Office of
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Finance and Management, Office of                 7, XXX
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Consumer Service                         7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302

[[Page 789]]

  Travel Allowances                               41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III

[[Page 790]]

  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, Agency for             22, II
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, Agency for           22, II; 48, 7
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV

[[Page 791]]

Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Dairy Compact Commission                7, XIII
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
   Fellowships
[[Page 792]]

Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
Transportation, Office of                         7, XXXIII
Travel Allowances                                 41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I

[[Page 793]]

  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 795]]



List of CFR Sections Affected




All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973-1985,'' published in seven 
separate volumes.

                                  1986

28 CFR
                                                                   51 FR
                                                                    Page
Chapter I
0  Authority citation revised; subpart, section, and paragraph 
        authority citation removed (eff. 8-27-86)..................31939
    Authority citation revised (eff. 8-22-86)......................31940
0.85  (k) added.....................................................7443
0.94-1  Correctly designated.......................................29464
0.97  Revised......................................................31939
0.101  (d) added....................................................7443
0.104  Revised.....................................................30485
0.108  Revised.....................................................31939
0.111  (i) revised.................................................15612
0.148  Revised.....................................................25049
0.149  Revised.....................................................25049
0.169  Revised.....................................................31940
0.160--0.172 (Subpart Y)  Appendix amended...........12848, 16841, 16842
    (Subpart Y) Appendix amended...................................31940
0.172  (a) amended.................................................31940
2.19  (b)(3) revised................................................7064
2.20  (j)(1) revised; guidelines amended............................7066
    (j)(2) revised; guidelines amendments confirmed................25051
    Technical correction...........................................26879
    Guidelines amended.............................................32072
2.26  (a) amended..................................................32785
2.27  (b) revised...................................................7065
2.36  (a)(1) revised................................................7070
    (a)(2)(ii) amended.............................................32785
2.36  (a)(2)(ii) Note revised......................................32072
2.37  Revision confirmed...........................................25052
    Technical correction...........................................26879
2.42  Revised......................................................11017
2.50  (d) revised..................................................32785
2.56  (f) revised..................................................32786
3.5  Revised........................................................8817
3.6  Removed........................................................8817
8  Revised..........................................................8818
9a  Removed.........................................................8817
16  Authority citation revised; section and subpart authority 
        citations removed..........................................16677
16.10  Revised; eff. 7-11-86.......................................21162
16.32--16.34  Revised..............................................16677
16.70  Added.........................................................751
16.71  Revised.......................................................753
16.72  Added.........................................................751
16.73  Revised.......................................................754
    Redesignated as 16.74..........................................15476
    (g) and (h) added..............................................26686
    Redesignated from 16.74 and (g) and (h) added..................39373
16.74  Redesignated from 16.73.....................................15476
    Redesignated as 16.73 and (g) and (h) added....................39373
    Added..........................................................39374
16.76  (a)(1) undesignated paragraph, (b), and (c)(1) undesignated 
        paragraph revised; (d)(1) amended; (g)(1) removed; (g)(2) 
        redesignated as (g)(1); (h) added..........................15476
16.81  (a), (b)(11), and (d), and (e) revised......................15476

[[Page 796]]

16.83  Added.......................................................32305
16.85  (a) revised.................................................15477
16.88  Revised.......................................................884
16.90  (e) and (f) revised.........................................15477
16.91  (s) and (t) added...........................................15475
    (q) and (r) revised............................................15477
16.93  (e) and (f) revised.........................................15478
16.96  (g) revised.................................................15479
16.97  (a)(8) and (c) amended......................................15479
16.100  Heading revised; (a)(1) amended............................15479
16.101  (g) redesignated as (o) and amended; new (g) through (n) 
        added......................................................20275
    (b)(4) through (9) redesignated as (b)(5) through (10); new 
(b)(4) added; (a) introductory text, (d)(5), (6), (7) and (9), and 
(f)(4) through (9) revised.........................................20277
16.103  Heading and (a)(1) revised.................................15479
21  Revised; authority citation added..............................16171
22  Authority citation revised; Editorial Note removed..............6400
22.1  (f) added.....................................................6400
22.2  (b) revised; (k) added........................................6400
22.20  (a) amended............................................6400, 6401
22.22  (a)(2) revised...............................................6400
22.23  (a) and (b)(6) amended.......................................6401
22.24  Amended......................................................6401
22.26  (b) amended..................................................6401
22.29  Amended......................................................6401

                                  1987

28 CFR
                                                                   52 FR
                                                                    Page
Chapter I
0  Authority citation revised........................17951, 24447, 44971
0.15  (f) added....................................................11044
0.23b  Added.......................................................11044
0.63  Revised......................................................24448
0.96  (t) and (u) added............................................17951
0.100  Revised.....................................................24447
0.105  (k) added...................................................11044
    (a) revised....................................................44971
    Nomenclature change............................................48998
0.115--0.118 (Subpart U)  Revised..................................44971
0.115  Nomenclature change.........................................48998
0.116  Nomenclature change.........................................48998
0.117  Nomenclature change.........................................48998
2.19  (c)(3) added; (c) (1) and (2) republished; eff. 7-16-87......22778
2.20  Guidelines amended...........................................5762,
17399, 33408, 44387, 44389, 47921
    Guidelines corrected............................................7575
    Table note revised.............................................46596
2.36  (a)(1) and (2)(ii) revised....................................5763
    (a)(3) revised.................................................17399
2.37  (b) revised..................................................33408
2.47  Revised......................................................17400
2.50  (f) revised..................................................33409
2.56  (f) revised..................................................47921
2.63  Revised......................................................44389
2.64  Added.........................................................5764
    Technical correction............................................8405
8.1  Amended.......................................................24448
8.8  (b) amended...................................................24448
9  Revised.........................................................32786
11  Added; eff. 8-31-87............................................24449
    Technical correction...........................................27496
14  Authority citation revised; section authority citations 
        removed.....................................................7411
14.2  (a) revised...................................................7411
14.3  (e) removed...................................................7412
16  Authority citation revised.....................................33231
16.10  Revised.....................................................33231
16.77  Added........................................................3631
16  Appendix I amended.............................................34214
17  Authority citation revised.....................................17752
17.135  (b) (4) through (6) redesignated as (b) (5) through (7); 
        new (b)(4) added...........................................17752
19  Added..........................................................45174
42.101--42.112 (Subpart C)  Authority citation revised.............24449
    (Subpart C)  Appendix A revised................................24449
42.501--42.540 (Subpart G)  Authority citation revised.............24450
    (Subpart G)  Appendix A revised................................24450

                                  1988

28 CFR
                                                                   53 FR
                                                                    Page
Chapter I
0  Authority citation revised...............................10871, 31323
0.1  Amended.......................................................35811
0.14  Added........................................................31323
0.15  (b) introductory text and (c) revised; (b)(1)(v) added........5370
0.19  (a) introductory text and (1) revised.........................5370
0.25  (j) redesignated as (k); new (j) added........................9435

[[Page 797]]

0.34  (c) revised..................................................30990
0.45  (d) amended..................................................11646
0.64-1  Heading revised; text amended..............................21997
0.64-2  Amended....................................................10871
0.96  (k) revised; (v) added.......................................10871
0.129--0.129b (Subpart V-2)  Added.................................35811
0.160--0.172 (Subpart Y)  Appendix amended..........................4010
2.2  (d) revised...................................................46870
2.13  (a) revised..................................................45904
2.52  (c)(2) revised...............................................47187
2.56  (b) amended..................................................24933
    (b) revised....................................................47187
2.64  Revised......................................................29233
2.65  Added........................................................49654
9.3  (a) amended....................................................9615
14  Authority citation revised.....................................37753
    Appendix added.................................................37753
16.2  (a) revised..................................................27161
16.7  Revised......................................................27161
16.78  Added........................................................7735
16.79  Revised.....................................................51542
16.99  (a) revised; (b) (8), (11), (13) removed; (b) (9), (10), 
        (12), and (14) redesignated as (b) (8), (9), (10), and 
        (11); new (b)(11) revised..................................41161
20  Authority citation revised.....................................23619
20.39--20.43 (Subpart D)  Added (Expires 12-4-88)..................23619
31  Final policy notice............................................44366
31.303  (f)(6)(iii)(B) added.......................................44371
32  Authority citation revised......................................8451
32.1  Revised.......................................................8451
32.2  (c) and (h) revised; (k) through (r) redesignated as (l) 
        through (r) and (u); new (k), (s) and (t) added.............8451
41  Suspension of guidelines.......................................37753
42.501--42.540 (Subpart G)  Authority citation revised..............3206
42.522  (b) revised.................................................3206
    Technical correction............................................5521

                                  1989

28 CFR
                                                                   54 FR
                                                                    Page
Chapter I
0  Authority citation revised........................................816
    Authority citation revised.............................47353, 50739,
0.14  (k) added....................................................11524
    Suspended......................................................15752
0.50  (j) added......................................................816
    (k) added......................................................36304
0.55  (t) added....................................................36304
0.100--0.104 (Subpart R)  Appendix amended.........................50739
0.111  (c) revised.................................................47353
0.175  Revised.......................................................297
0.176  (b) revised...................................................298
0.178  (a), and (b) designation removed..............................298
2.20  Guidelines amended....................................11686, 27838
2.34  (a) and (c) revised..........................................15173
2.40  (e) through (i) redesignated as (f) through (j); new (e) and 
        (k) added; new (g) amended.................................11687
2.44  (b) revised..................................................11688
2.56  (a), (c), and (g) revised; eff. 10-1-89......................27839
2.57  (c) amended..................................................11689
2.62  Added; interim...............................................11690
    Regulation at 54 FR 11690 confirmed and revised................27840
2.66  Added; interim; eff. 8-1-89..................................27842
11  Authority citation revised......................................9979
11.10 (Subpart C)  Added; interim...................................9979
16.89  Added.........................................................113
31.301  (a) and (b) revised........................................32621
31.303  (f)(4)(vi) and (k) added; (f)(6)(iii), (g) introductory 
        text, and (j) revised......................................32622
32  Authority citation revised.....................................39358
32.1  Revised......................................................39358
32.3  Revised......................................................39358
32.6  (b) revised..................................................39358
32.10  Revised.....................................................39358
32.15  Revised.....................................................39358
32.25 (Subpart G)  Added...........................................39359

                                  1990

28 CFR
                                                                   55 FR
                                                                    Page
Chapter I
0  Authority citation revised................................1583, 20456
                                                            27808, 40654
0.22  (e) added....................................................19064
0.34  (g) added....................................................32403
0.50  (l) added....................................................40654
0.85  (l) added....................................................11585
    (m) added......................................................28610
0.89a  (b) revised.................................................27808

[[Page 798]]

0.100--0.104 (Subpart R)  Appendix amended...................1583, 20456
0.102  Revised.....................................................28909
     0.160--0.172 (Subpart Y)  Appendix amended..................22901, 
                                                             22902852839
0.171  (a) revised; (c) and (d) redesignated as (h) and (i); new 
        (c), (d), (e), (f), and (g) added..........................19064
2  Technical correction............................................42957
2.14  (a)(1) (ii) and (iii) revised..................................290
2.40  (a)(14) added..................................................862
2.52  Amended; interim.............................................42185
2.62  (c), (d), (e), and (g) revised...............................39269
2.65  (c)(2) revised.................................................289
20  Authority citation revised.....................................32075
20.33  (a)(3) revised..............................................32075
20  Appendix amended...............................................32075
34  Revised........................................................39234

                                  1991

28 CFR
                                                                   56 FR
                                                                    Page
Chapter I
0  Authority citation revised...............................12350, 21600
    Authority citation revised.....................................25629
0.1  Amended.......................................................25629
0.15  (g) added....................................................10510
    (e)(2) revised.................................................30693
0.26 (Subpart E-1)  Added..........................................25629
0.27 (Subpart E-1)  Redesignated as Subpart E-2....................25629
0.28 (Subpart E-2)  Redesignated as Subpart E-3....................25629
0.34  (c) revised..................................................21600
0.45  (l) added....................................................56578
0.55  (u) added....................................................55235
0.85  (n) added....................................................10510
0.89a  (a) revised.................................................64192
0.114  Added........................................................2437
0.129  Revised.....................................................12350
0.160  Revised......................................................8923
0.164  Revised......................................................8924
0.165  Revised......................................................8924
0.168  (d) added....................................................8924
0.160--0.172 (Subpart Y)  Appendix amended.........................12666
0.172  (a) revised.................................................48734
2.19  (c) introductory text amended; (c)(1) through (3) revised; 
        (c) concluding text added; interim.........................16270
    (c) introductory text amended; (c)(1), (2) and (3) revised; 
(c)(4) and concluding text added...................................30868
2.20  Paroling policy guidelines amended.............16271, 30869, 30870
2.40  (a)(12) amended..............................................30871
    (l) added......................................................30873
2.62  (a) revised; (k) added.......................................16272
    (k)(1) corrected...............................................21600
2.67  Added........................................................51176
8.7  Revised........................................................8686
8.8  Heading revised; (a) amended...................................8687
14  Appendix amended.........................................4943, 12846
16.33  Revised.....................................................22825
16.71  Revised.....................................................58305
16.72  Revised.....................................................58305
16.81  (c), (d) and (e) redesignated as (g), (c) and (d); new (e) 
        and (f) added..............................................58306
35  Added..........................................................35716
36  Added..........................................................35592

                                  1992

28 CFR
                                                                   57 FR
                                                                    Page
Chapter I
0.1  Amended.......................................................32438
0.26 (Subpart E-1)  Revised........................................32438
0.50--0.52 (Subpart J)  Appendix amended...........................19377
0.63  Revised.......................................................1643
0.96  Revised......................................................38772
0.100--0.104 (Subpart R)  Appendix amended..........................7877
0.157  Added.......................................................31314
0.160-0.172 (Subpart Y)  Appendix amended....................6198, 30396
2.12  (a) revised..................................................41391
2.20  Amended; interim.............................................21210
14  Authority citation revised.....................................21738
    Paroling policy guidelines amended......................41392, 41393
2.41  (b) revised..................................................59916
2.62  (a)(1) revised...............................................41394
2.66  (f) removed; (g) and (h) redesignated as (f) and (g); (e) 
        and new (f) revised; new (g) amended.......................41395
    (i) and (j) redesignated as (h) and (i)........................41396
11  Authority citation revised.....................................44107
11.4--11.9 (Subpart B)  Added......................................44107
14.6  Revised......................................................21738
14.7  Removed......................................................21740

[[Page 799]]

14.10  (a) revised.................................................21740
14  Appendix amended...............................................13320
16.75  Added........................................................8263
    (c) and (d) added...............................................8263
16.101  (o) redesignated as (q); new (o) and (p) added..............3284
    (q) redesignated as (s); new (q) and (r) added.................20654
20  Authority citation revised.....................................31318
20.32  (a) and (b) amended.........................................31318
32  Revised........................................................24913
40  Authority citation revised.....................................38773
40.7  (b) revised..................................................38773

                                  1993

28 CFR
                                                                   58 FR
                                                                    Page
Chapter I
    Chapter I Statement of activities..............................39444
0  Authority citation revised......................................62260
0.17  Added........................................................62260
0.103a  Added......................................................35371
1  Revised.........................................................53658
2.19  (b)(4) added.................................................16612
2.56  (d) amended; (h) added.......................................51780
2.62  (a), (i) and (k) revised; (l) added..........................30705
    (a)(5) amended; (i)(2) revised; (k)(7) removed; (k)(8) 
redesignated as (k)(7); interim....................................65548
5  Authority citation revised......................................37418
5.2  Revised.......................................................37418
5.3  Amended.......................................................37419
5.5  Added.........................................................37419
5.205  (d) added...................................................37419
5.601  Revised.....................................................37420
5.1101  Added......................................................37420
11  Authority citation revised.....................................51223
11.10--11.12 (Subpart C)  Revised..................................51223
14  appendix amended...............................................36867
16.82  Added.......................................................41038
23  Revised........................................................48452
26  Added...........................................................4901
35.105  OMB number.................................................17521
35.133  (a) amended................................................17521
35.150  OMB number.................................................17521
35.151  (c) amended................................................17521
36  Authority citation revised.....................................17522
36.603  OMB number.................................................17522
36  Appendix A amended.............................................17522

                                  1994

28 CFR
                                                                   59 FR
                                                                    Page
Chapter I
0.41  (i) added; (k) revised.......................................14101
0.55--0.64-4 (Subpart K)  Appendix amended..................42161, 46550
0.64-1  Amended....................................................41242
0.64-4  Added......................................................46551
0.89a  (c) revised.................................................41242
0.96  (s) revised..................................................29717
0.96c  Added.......................................................60558
0.100--0.104 (Subpart R)  Appendix amended..................23637, 38121
0.111a  Added......................................................46551
0.132  (c) revised.................................................13883
2.13  (a), (b) and (c) revised; interim............................11187
    (a), (b) and (c) revised.......................................45625
2.20  Amended; interim.............................................11186
    Amended.................................................65941, 65942
    Paroling policy guidelines amended......................25813, 25814
2.23  (a), (b) and (c) revised; interim............................11187
    (a), (b) and (c) revised.......................................45625
2.26  (f) added....................................................40258
2.40  (k) and (l)(2) amended.......................................66735
2.62  (a)(5)  amended; (i)(1) and (2) revised; (k)(7) removed; 
        (k)(8) redesignated as (k)(7)..............................26425
16.96  (l) and (m) added...........................................47081
16.98  Revised.....................................................29717
36  Authority citation revised...............................2675, 17446
36.406  Amended.....................................................2675
36.407  Added......................................................17446
36  Appendix A amended..............................................2675
37  Added...................................................39904, 39908
42.700--42.736 (Subpart I)  Added...................................6560

                                  1995

28 CFR
                                                                   60 FR
                                                                    Page
Chapter I
0  Authority citation revised...............................35335, 36711
0.1  Amended; interim...............................................8933
0.15  (b)(1)(v), (c) and (e) revised................................9777
0.77  (j) revised..................................................36711
0.85  (o) added....................................................11907
0.100--0.104 (Subpart R)  Appendix amended.........................46019
0.116  Amended.....................................................53268

[[Page 800]]

0.119--0.121 (Subpart U-1)  Added; interim..........................8933
0.137  Revised.....................................................35335
0.138  Revised.....................................................35335
0.157  Heading, (c) and (d) revised; (e) added.....................35335
0.160  Revised.....................................................15674
0.161  Revised.....................................................15675
0.164  Revised.....................................................15675
0.165  Revised.....................................................15675
0.168  Revised.....................................................15675
0.160--0.172 (Subpart Y)  Appendix amended..................17457, 31244
2.1  (h) revised...................................................51350
2.12  (a) amended..................................................51350
2.14  (a)(1)(ii), (2)(iv) and (b)(3) amended.......................51350
2.17  (a) amended..................................................18353
2.20  Paroling policy guidelines amended....................40093, 40271
2.23  Amended......................................................51349
2.29  (b) amended..................................................51350
2.40  (k) correctly designated......................................5461
    (g) revised....................................................51349
2.59  Revised......................................................40094
2.60  (g) and (h) added; interim...................................40095
2.62  (i)(1) revised...............................................18354
16.33  Revised........................................................38
16.101  (s) redesignated as (u); new (s) and (t) added.............30467
31  Authority citation revised.....................................13333
    Republication..................................................28440
31.3  Revised......................................................13333
31.101  Revised....................................................13333
31.102  (c) amended................................................13334
31.203  Revised....................................................13334
31.301  (a), (c), (d) and (e) revised..............................13334
    (e) corrected..................................................19847
31.302  (a) and (b)(2) revised.....................................13334
    (b)(2) correctly revised.......................................19847
31.303  (f)(6) introductory text and (i), (7) and (g) introductory 
        text revised; (f)(6)(iii)(A) removed; (f)(6)(iii)(B) 
        through (E) redesignated as (f)(6)(iii)(A) through (D).....13338
    (a) and (b) revised............................................13334
    (c)(3), (4), (d)(1)(i), (ii), (2) and (e)(3) revised...........13335
    (e)(4) removed; (e)(5) redesignated as (e)(4); new (e)(4) 
revised; (f)(3)(i), (iv), (v), (4)(v) and (vi) amended.............13336
    (f)(5) revised.................................................13337
    (h) amended; (j) revised.......................................13339
    (d)(1)(i) corrected; (e)(3)(v) correctly revised...............19847
    (f)(5) correctly revised.......................................19848
    (f)(6)(iii)(B) and (C) correctly revised.......................19850
    (f)(6)(iii)(D) correctly revised...............................19851
31.403  Revised....................................................13339
36  Technical correction............................................5461
36  Appendix A corrected; CFR correction............................3080
40.7  (e) revised; interim.........................................13902
40.11  Revised; interim............................................13903
40.14  Revised; interim............................................13903
40.15  Revised; interim............................................13903
40.16  Revised; interim............................................13903
40.18  (a) and (b) revised; interim................................13903
40.19  (a) revised; interim........................................13903
40.22  Revised; interim............................................13904

                                  1996

28 CFR
                                                                   61 FR
                                                                    Page
Chapter I
0.100--0.104 (Subpart R)  Appendix amended.........................46720
0.112  (1) through (4) redesignated as (a) through (d).............33657
0.116  Amended.....................................................59305
0.197  Added; interim..............................................48406
2.1  (c), (d) and (e) revised......................................55743
2.17  (a) and (c)(2) amended.......................................13763
    (a) revised....................................................55743
2.26  (b) revised..................................................55743
2.27  Revised......................................................13763
    (a) revised....................................................55743
2.28  (f) revised..................................................55743
2.47  (b)(i), (ii), (c)(i), (ii) and (iii) redesignated as (b)(1), 
        (2), (c)(1), (2) and (3)...................................33657
2.60  (b) amended; (g) and (h) removed..............................4351
2.62  (h) introductory text, (1) introductory text and (5) 
        amended; (h)(6) revised....................................38570
    (h)(6) corrected...............................................54096
    (e) revised; interim...........................................54097
2.64  Revised......................................................55743
2.67  Removed......................................................55743
14  Appendix amended...............................................66220
16.96  (k)(4) amended; (n) and (o) added...........................65180

[[Page 801]]

16.97  (e) and (f) added............................................6316
    (g) and (h) added...............................................6317
    (c) redesignated as (i); new (i) amended; new (c) and (d) 
added...............................................................6319
25  Removed........................................................17575
29  Added..........................................................40725
31.303  (d)(1)(i), (v), (e)(2), (3), (f)(2), (3)(vi), (4)(vi), 
        (5)(i)(C), (iii), (iv), (6)(i) and (ii) revised; 
        (f)(4)(iv), (v) and (j) introductory text amended..........65138
32  Authority citation revised.....................................33657
32.2  (3) redesignated as (e)......................................33657
36.407  Revised....................................................39324
42  Notice.........................................................42556
42.1--42.3 (Subpart A)  Authority citation revised.................34729
42.1  Revised......................................................34730
    (b) corrected..................................................43119
42.601--42.613  (Subpart H) Authority citation revised.............33658
42.605  (e)(i) and (ii) redesignated as (e)(1) and (2).............33658

                                  1997

   (Regulations published from January 1, 1997, through July 1, 1997)

28 CFR
                                                                   62 FR
                                                                    Page
Chapter I
0  Authority citation revised......................................23658
0.50  (m) added....................................................23658
0.53  Added........................................................23658
0.100--0.104 (Subpart R)  Appendix amended.........................32032
0.129--0.129b (Subpart V-2)  Removed...............................23658
9  Revised...........................................................316
16.98  (d)(6) revised...............................................2903
16.99  (g) and (h) added...........................................34169

                                  1997

                   (Correction published July 28, 1997)

28 CFR
                                                                   62 FR
                                                                    Page
Chapter I
2.62 (a)(6) and (h)(5) amended, eff. July 28, 1997.................40270