[Title 28 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2003 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    28


          Part 43 to End

                         Revised as of July 1, 2003

Judicial Administration





          Containing a codification of documents of general 
          applicability and future effect
          As of July 1, 2003
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



  For sale by the Superintendent of Documents, U.S. Government Printing 
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                            Table of Contents



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

  Title 28:
          Chapter I--Department of Justice (Continued)               3
          Chapter III--Federal Prison Industries, Inc., 
          Department of Justice                                    445
          Chapter V--Bureau of Prisons, Department of Justice      467
          Chapter VI--Offices of Independent Counsel, 
          Department of Justice                                    637
          Chapter VII--Office of Independent Counsel               645
          Chapter VIII--Court Services and Offender 
          Supervision Agency for the District of Columbia          669
          Chapter IX--National Crime Prevention and Privacy 
          Compact Council                                          705
          Chapter XI--Department of Justice and Department of 
          State                                                    709
  Finding Aids:
      Material Approved for Incorporation by Reference........     719
      Table of CFR Titles and Chapters........................     721
      Alphabetical List of Agencies Appearing in the CFR......     739
      List of CFR Sections Affected...........................     749



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

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  28 CFR 43.1 refers 
                       to title 28, part 43, 
                       section 1.

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

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                               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, 2003), 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, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, 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) 741-6010.

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

[[Page vii]]


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 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
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Government Manual, the Federal Register, Public Laws, Public Papers, 
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Compilation are available in electronic format at www.access.gpo.gov/
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Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, 
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    The Office of the Federal Register also offers a free service on the 
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site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.

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

July 1, 2003.



[[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, 2003.

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

[[Page 1]]



                    TITLE 28--JUDICIAL ADMINISTRATION




                   (This book contains part 43 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Department of Justice (Continued)................          43

chapter iii--Federal Prison Industries, Inc., Department of 
  Justice...................................................         301

chapter v--Bureau of Prisons, Department of Justice.........         500

chapter vi--Offices of Independent Counsel, Department of 
  Justice...................................................         600

chapter vii--Office of Independent Counsel..................         700

chapter viii--Court Services and Offender Supervision Agency 
  for the District of Columbia..............................         800

chapter ix--National Crime Prevention and Privacy Compact 
  Council...................................................         901

chapter xi--Department of Justice and Department of State...        1100

[[Page 3]]



              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)




  --------------------------------------------------------------------
Part                                                                Page
43              Recovery of cost of hospital and medical 
                    care and treatment furnished by the 
                    United States...........................           7
44              Unfair immigration-related employment 
                    practices...............................           8
45              Employee responsibilities...................          12
46              Protection of human subjects................          15
47              Right to Financial Privacy Act..............          26
48              Newspaper Preservation Act..................          27
49              Antitrust Civil Process Act.................          32
50              Statements of policy........................          33
51              Procedures for the administration of section 
                    5 of the Voting Rights Act of 1965, as 
                    amended.................................          80
52              Proceedings before U.S. magistrate judges...         100
54              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving federal financial assistance..         101
55              Implementation of the provisions of the 
                    Voting Rights Act regarding language 
                    minority groups.........................         118
56              International Energy Program................         130
57              Investigation of discrimination in the 
                    supply of petroleum to the Armed Forces.         132
58              Regulations relating to the Bankruptcy 
                    Reform Acts of 1978 and 1994............         133
59              Guidelines on methods of obtaining 
                    documentary materials held by third 
                    parties.................................         141
60              Authorization of Federal law enforcement 
                    officers to request the issuance of a 
                    search warrant..........................         145
61              Procedures for implementing the National 
                    Environmental Policy Act................         147
63              Floodplain management and wetland protection 
                    procedures..............................         154
64              Designation of officers and employees of the 
                    United States for coverage under section 
                    1114 of title 18 of the U.S. Code.......         160
65              Emergency Federal law enforcement assistance         161

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66              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         170
67              Governmentwide debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants)................................         197
68              Rules of practice and procedure for 
                    administrative hearings before 
                    administrative law judges in cases 
                    involving allegations of unlawful 
                    employment of aliens, unfair 
                    immigration-related employment 
                    practices, and document fraud...........         216
69              New restrictions on lobbying................         245
70              Uniform administrative requirements for 
                    grants and agreements (including 
                    subawards) with institutions of higher 
                    education, hospitals and other non-
                    profit organizations....................         257
71              Implementation of the provisions of the 
                    Program Fraud Civil Remedies Act of 1986         282
73              Notifications to the Attorney General by 
                    agents of foreign governments...........         299
74              Civil Liberties Act redress provision.......         301
75              Child Protection Restoration and Penalties 
                    Enhancement Act of 1990; record-keeping 
                    provisions..............................         313
76              Rules of procedure for assessment of civil 
                    penalties for possession of certain 
                    controlled substances...................         315
77              Ethical standards for attorneys for the 
                    government..............................         330
79              Claims under the Radiation Exposure 
                    Compensation Act........................         333
80              Foreign Corrupt Practices Act opinion 
                    procedure...............................         369
81              Child abuse reporting designations and 
                    procedures..............................         372
85              Civil monetary penalties inflation 
                    adjustment..............................         373
90              Violence against women......................         374
91              Grants for correctional facilities..........         391
92              Office of Community Oriented Policing 
                    Services (COPS).........................         407
93              Provisions implementing the Violent Crime 
                    Control and Law Enforcement Act of 1994.         413
97              Standards for private entities providing 
                    prisoner or detainee services...........         414
100             Cost recovery regulations, Communications 
                    Assistance for Law Enforcement Act of 
                    1994....................................         418
104             September 11th Victim Compensation Fund of 
                    2001....................................         427
105             Security risk assessments...................         438
200             Alien terrorist removal procedures..........         444

Cross References: Customs Service, Department of the Treasury: See 
  Customs Duties, 19 CFR chapter I.

[[Page 5]]


  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.

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

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

[[Page 7]]



PART 43--RECOVERY OF COST OF HOSPITAL AND MEDICAL CARE AND TREATMENT FURNISHED BY THE UNITED STATES--Table of Contents




Sec.
43.1  Administrative determination and assertion of claims.
43.2  Obligations of persons receiving care and treatment.
43.3  Settlement and waiver of claims.
43.4  Annual reports.

    Authority: Sec. 2, 76 Stat. 593; 42 U.S.C. 2651-2653; E.O. 11060, 3 
CFR, 1959-1963 Comp., p. 651.

    Editorial Note: For establishment and determination of certain rates 
for use in connection with recovery from tortiously liable third 
persons, see notice documents published by the Office of Management and 
Budget each year in the Federal Register.



Sec. 43.1  Administrative determination and assertion of claims.

    (a) The head of a Department or Agency of the United States 
responsible for the furnishing of hospital, medical, surgical or dental 
care and treatment (including prostheses and medical appliances), or his 
designee, shall determine whether such hospital, medical, surgical or 
dental care and treatment was or will be furnished for an injury or 
disease caused under circumstances entitling the United States to 
recovery under the Act of September 25, 1962 (Pub. L. 87-693); and, if 
it is so determined, shall, subject to the provisions of Sec. 43.3, 
assert a claim against such third person for the reasonable value of 
such care and treatment. The Department of Justice, or a Department or 
Agency responsible for the furnishing of such care and treatment may 
request any other Department or Agency to investigate, determine, or 
assert a claim under the regulations in this part.
    (b) Each Department or Agency is authorized to implement the 
regulations in this part to give full force and effect thereto.
    (c) The provisions of the regulations in this part shall not apply 
with respect to hospital, medical, surgical, or dental care and 
treatment (including prostheses and medical appliances) furnished by the 
Veterans Administration to an eligible veteran for a service-connected 
disability under the provisions of chapter 17 of title 38 of the U.S. 
Code.

[Order No. 289-62, 27 FR 11317, Nov. 16, 1962]



Sec. 43.2  Obligations of persons receiving care and treatment.

    (a) In the discretion of the Department or Agency concerned, any 
person furnished care and treatment under circumstances in which the 
regulations in this part may be applicable, his guardian, personal 
representative, estate, dependents or survivors may be required:
    (1) To assign in writing to the United States his claim or cause of 
action against the third person to the extent of the reasonable value of 
the care and treatment furnished or to be furnished, or any portion 
thereof;
    (2) To furnish such information as may be requested concerning the 
circumstances giving rise to the injury or disease for which care and 
treatment is being given and concerning any action instituted or to be 
instituted by or against a third person;
    (3) To notify the Department or Agency concerned of a settlement 
with, or an offer of settlement from, a third person; and
    (4) To cooperate in the prosecution of all claims and actions by the 
United States against such third person.
    (b) [Reserved]

[Order No. 289-62, 27 FR 11317, Nov. 16, 1962, as amended by Order No. 
896-80, 45 FR 39841, June 12, 1980]



Sec. 43.3  Settlement and waiver of claims.

    (a) The head of the Department or Agency of the United States 
asserting such claim, or his or her designee, may:
    (1) Accept the full amount of a claim and execute a release 
therefor;
    (2) Compromise or settle and execute a release of any claim, not in 
excess of $100,000, which the United States has for the reasonable value 
of such care and treatment; or
    (3) Waive and in this connection release any claim, not in excess of 
$100,000, in whole or in part, either for the convenience of the 
Government, or if the head of the Department or Agency, or his or her 
designee, determines that collection would result in undue hardship upon 
the person who suffered

[[Page 8]]

the injury or disease resulting in the care and treatment described in 
Sec. 43.1.
    (b) Claims in excess of $100,000 may be compromised, settled, 
waived, and released only with the prior approval of the Department of 
Justice.
    (c) The authority granted in this section shall not be exercised in 
any case in which:
    (1) The claim of the United States for such care and treatment has 
been referred to the Department of Justice; or
    (2) A suit by the third party has been instituted against the United 
States or the individual who received or is receiving the care and 
treatment described in Sec. 43.1 and the suit arises out of the 
occurrence which gave rise to the third-party claim of the United 
States.
    (d) The Departments and Agencies concerned shall consult the 
Department of Justice in all cases involving:
    (1) Unusual circumstances;
    (2) A new point of law which may serve as a precedent; or
    (3) A policy question where there is or may be a difference of views 
between any of such Departments and Agencies.

[Order No. 1594-92, 57 FR 27356, June 19, 1992]



Sec. 43.4  Annual reports.

    The head of each Department or Agency concerned, or his designee, 
shall report annually to the Attorney General, by March 1, commencing in 
1964, the number and dollar amount of claims asserted against, and the 
number and dollar amount of recoveries from third persons.

[Order No. 289-62, 27 FR 11317, Nov. 16, 1962]



PART 44--UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES--Table of Contents




                           Subpart A--General

Sec.
44.100  Purpose.
44.101  Definitions.

                     Subpart B--Prohibited Practices

44.200  Unfair immigration-related employment practices.

                    Subpart C--Enforcement Procedures

44.300  Filing a charge.
44.301  Acceptance of charge.
44.302  Investigation.
44.303  Determination.
44.304  Special Counsel acting on own initiative.
44.305  Regional offices.

    Authority: 8 U.S.C. 1324b, 8 U.S.C. 1103(a).

    Source: Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, unless 
otherwise noted.



                           Subpart A--General



Sec. 44.100  Purpose.

    The purpose of this part is to effectuate section 102 of the 
Immigration Reform and Control Act of 1986, which prohibits certain 
unfair immigration-related employment practices.



Sec. 44.101  Definitions.

    (a) Charge means a written statement under oath or affirmation that-
-
    (1) Identifies the charging party's name, address, and telephone 
number;
    (2) Identifies the injured party's name, address, and telephone 
number, if the charging party is not the injured party;
    (3) Identifies the name and address of the person or entity against 
whom the charge is being made;
    (4) Includes a statement sufficient to describe the circumstances, 
place, and date of an alleged unfair immigration-related employment 
practice;
    (5) Indicates whether the basis of the alleged unfair immigration-
related employment practice is discrimination based on national origin, 
citizenship status, or both; or intimidation or retaliation, or 
documentation abuses;
    (6) Indicates whether the injured party is a U.S. citizen, U.S. 
national, or alien authorized to work in the United States;
    (7) Indicates, if the injured party is an alien authorized to work, 
whether the injured party--
    (i) Has been--
    (A) Lawfully admitted for permanent residence;
    (B) Granted the status of an alien lawfully admitted for temporary 
residence under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C. 
1255a(a)(1);
    (C) Admitted as a refugee under 8 U.S.C. 1157; or
    (D) Granted asylum under 8 U.S.C. 1158; and

[[Page 9]]

    (ii) Has applied for naturalization (and if so, indicates the date 
of the application);
    (8) Identifies, if the injured party is an alien authorized to work, 
the injured party's alien registration number and date of birth.
    (9) Indicates, if possible, the number of persons employed on the 
date of the alleged discrimination by the person or entity against whom 
the charge is being made;
    (10) Is signed by the charging party and, if the charging party is 
neither the injured party nor an officer of the Immigration and 
Naturalization Service, indicates that the charging party has the 
authorization of the injured party to file the charge.
    (11) Indicates whether a charge based on the same set of facts has 
been filed with the Equal Employment Opportunity Commission, and if so, 
the specific office, and contact person (if known); and
    (12) Authorizes the Special Counsel to reveal the identity of the 
injured or charging party when necessary to carry out the purposes of 
this part.
    (b) Charging party means--
    (1) An individual who files a charge with the Special Counsel that 
alleges that he or she has been adversely affected directly by an unfair 
immigration-related employment practice;
    (2) An individual or private organization who is authorized by an 
individual to file a charge with the Special Counsel that alleges that 
the individual has been adversely affected directly by an unfair 
immigration-related employment practice; or
    (3) An officer of the Immigration and Naturalization Service who 
files a charge with the Special Counsel that alleges that an unfair 
immigration-related employment practice has occurred.
    (c) Protected individual means an individual who--
    (1) Is a citizen or national of the United States; or
    (2) Is an alien who is lawfully admitted for permanent residence, is 
granted the status of an alien lawfully admitted for temporary residence 
under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C. 1255a(a)(1), is 
admitted as a refugee under 8 U.S.C. 1157, or is granted asylum under 8 
U.S.C. 1158. The status of an alien whose application for temporary 
resident status under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C. 
1255a(a)(1) is approved shall be adjusted to that of a lawful temporary 
resident as of the date indicated on the application fee receipt issued 
at the Immigration and Naturalization Service Legalization Office. As 
used in this definition, the term ``protected individual'' does not 
include an alien who--
    (i) Fails to apply for naturalization within six months of the date 
the alien first becomes eligible (by virtue of period of lawful 
permanent residence) to apply for naturalization or, if later, by May 6, 
1987; or
    (ii) Has applied on a timely basis, but has not been naturalized as 
a citizen within two years after the date of the application, unless the 
alien can establish that he or she is actively pursuing naturalization, 
except that time consumed in the Immigration and Naturalization 
Service's processing of the application shall not be counted toward the 
two-year period.
    (d) Complaint means a written submission filed with an 
administrative law judge by the Special Counsel or the charging party, 
other than an officer of the Immigration and Naturalization Service, 
that is based on the same charge filed with the Special Counsel.
    (e) Injured party means a person who claims to have been adversely 
affected directly by an unfair immigration-related employment practice 
or, in the case of a charge filed by an officer of the Immigration and 
Naturalization Service or by a charging party other than the injured 
party, is alleged to be so affected.
    (f) Respondent means a person or entity against whom a charge of an 
unfair immigration-related employment practice has been filed.
    (g) Special Counsel means the Special Counsel for Immigration-
Related Unfair Employment Practices appointed by the President under 
section 102 of the Immigration Reform and Control Act of 1986, or his or 
her designee.

[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No. 
1520-91, 56 FR 40249, Aug. 14, 1991; Order No. 1807-93, 58 FR 59948, 
Nov. 12, 1993]

[[Page 10]]



                     Subpart B--Prohibited Practices



Sec. 44.200  Unfair immigration-related employment practices.

    (a)(1) General. It is unfair immigration-related employment practice 
for a person or other entity to knowingly and intentionally discriminate 
or to engage in a pattern or practice of knowing and intentional 
discrimination against any individual (other than an unauthorized alien) 
with respect to the hiring, or recruitment or referral for a fee, of the 
individual for employment or the discharging of the individual from 
employment--
    (i) Because of such individual's national origin; or
    (ii) In the case of a protected individual, as defined in 
Sec. 44.101(c), because of such individual's citizenship status.
    (2) Intimidation or retaliation. It is an unfair immigration-related 
employment practice for a person or other entity to intimidate, 
threaten, coerce, or retaliate against any individual for the purpose of 
interfering with any right or privilege secured under 8 U.S.C. 1324b or 
because the individual intends to file or has filed a charge or a 
complaint, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under that section.
    (3) Documentation abuses. A person's or other entity's request, for 
purposes of satisfying the requirements of 8 U.S.C. 1324a(b), for more 
or different documents than are required under such section or refusing 
to honor documents tendered that on their face reasonably appear to be 
genuine and to relate to the individual shall be treated as an unfair 
immigration-related employment practice relating to the hiring of 
individuals.
    (b) Exceptions. (1) Paragraph (a) of this section shall not apply 
to--
    (i) A person or other entity that employs three or fewer employees;
    (ii) Discrimination because of an individual's national origin if 
the discrimination with respect to that person or entity and that 
individual is covered under 42 U.S.C. 2000e-2; or
    (iii) Discrimination because of citizenship which--
    (A) Is otherwise required in order to comply with law, regulation, 
or Executive Order; or
    (B) Is required by Federal, State, or local government contract; or
    (C) Which the Attorney General determines to be essential for an 
employer to do business with an agency or department of the Federal, 
State, or local government.
    (2) Notwithstanding any other provision of this part, it is not an 
unfair immigration-related employment practice for a person or other 
entity to prefer to hire, recruit or refer for a fee an individual who 
is a citizen or national of the United States over another individual 
who is an alien if the two individuals are equally qualified.

[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No. 
1520-91, 56 FR 40249, Aug. 14, 1991; Order No. 1807-93, 58 FR 59948, 
Nov. 12, 1993]



                    Subpart C--Enforcement Procedures



Sec. 44.300  Filing a charge.

    (a) Who may file. (1) Any individual who believes that he or she has 
been adversely affected directly by an unfair immigration-related 
employment practice, or any individual or private organization 
authorized to act on such person's behalf, may file a charge with the 
Special Counsel.
    (2) Any officer of the Immigration and Naturalization Service who 
believes that an unfair immigration-related employment practice has 
occurred or is occurring may file a charge with the Special Counsel.
    (b) When to file. Charges shall be filed within 180 days of the 
alleged occurrence of an unfair immigration-related employment practice. 
For purposes of determining when a charge is timely under this 
paragraph, a charge mailed to the Special Counsel shall be deemed filed 
on the date it is postmarked.
    (c) How to file. Charges may be:
    (1) Mailed to: Office of Special Counsel for Immigration-Related 
Unfair Employment Practices, P.O. Box 27728, Washington, DC 20038-7728 
or
    (2) Delivered to the Office of Special Counsel at 1425 New York 
Avenue NW., suite 9000, Washington, DC 20005.

[[Page 11]]

    (d) No overlap with EEOC complaints. No charge may be filed 
respecting an unfair immigration-related employment practice described 
in Sec. 44.200(a)(1) if a charge with respect to that practice based on 
the same set of facts has been filed with the Equal Employment 
Opportunity Commission under title VII of the Civil Rights Act of 1964, 
unless the charge is dismissed as being outside the scope of such title. 
No charge respecting an employment practice may be filed with the Equal 
Employment Opportunity Commission under such title if a charge with 
respect to such practice based on the same set of facts has been filed 
under this section, unless the charge is dismissed by the Special 
Counsel as being outside the scope of this part.

[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No. 
1807-93, 58 FR 59948, Nov. 12, 1993]



Sec. 44.301  Acceptance of charge.

    (a) The Special Counsel shall notify the charging party of receipt 
of a charge as defined in Sec. 44.101(a) or receipt of a submission 
deemed to be a charge under paragraph (c)(2) of this section.
    (b) The notice to the charging party shall specify the date on which 
the charge was received, state that the charging party, other than an 
officer of the Immigration and Naturalization Service, may file a 
complaint before an administrative law judge if the Special Counsel does 
not do so within 120 days of receipt of the charge, and state the last 
date on which such a complaint may be filed.
    (c)(1) Subject to paragraph (c)(2) of this section, if a charging 
party's submission is inadequate to constitute a charge as defined in 
Sec. 44.101(a), the Special Counsel shall notify the charging party that 
specified additional information is needed. As of the date that adequate 
information is received in writing by the Special Counsel, the charging 
party's submission shall be deemed a filed charge and the Special 
Counsel shall issue the notices required by paragraphs (b) and (e) of 
this section.
    (2) In the Special Counsel's discretion, the Special Counsel may 
deem a submission to be a filed charge as of the date of its receipt 
even though it is inadequate to constitute a charge as defined in 
Sec. 44.101(a). The Special Counsel may then obtain the additional 
information specified in Sec. 44.101(a) in the course of investigating 
the charge.
    (d)(1) If the Special Counsel receives a charge after 180 days of 
the alleged occurrence of an unfair immigration-related employment 
practice, the Special Counsel shall dismiss the charge with prejudice.
    (2) Inadequate submissions that are later deemed charges under 
paragraph (c)(1) of this section are timely filed as long as--
    (i) The original submission is filed within 180 days of the alleged 
occurrence of an unfair immigration-related employment practice; and
    (ii) Any additional information requested by the Special Counsel 
pursuant to paragraph (c)(1) of this section is provided in writing to 
the Special Counsel within the 180-day period or within 45 days of the 
date on which the charging party received the Special Counsel's 
notification pursuant to paragraph (c) of this section, whichever is 
later.
    (e) The Special Counsel shall serve notice of the charge on the 
respondent by certified mail within 10 days of receipt of the charge. 
The notice shall include the date, place, and circumstances of the 
alleged unfair immigration-related employment practice.

[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No. 
1520-91, 57 FR 40249, Aug. 14, 1991; 57 FR 30397, July 9, 1992]



Sec. 44.302  Investigation.

    (a) The Special Counsel may propound interrogatories, requests for 
production of documents, and requests for admissions.
    (b) The Special Counsel shall have reasonable access to examine the 
evidence of any person or entity being investigated. The respondent 
shall permit access by the Special Counsel during normal business hours 
to such of its books, records, accounts, and other sources of 
information, as the Special Counsel may deem pertinent to ascertain 
compliance with this part.

[[Page 12]]



Sec. 44.303  Determination.

    (a) Within 120 days of the receipt of a charge, the Special Counsel 
shall undertake an investigation of the charge and determine whether a 
complaint with respect to the charge will be brought before an 
administrative law judge specially designated by the Attorney General to 
hear cases under section 102 of the Act.
    (b) When the Special Counsel decides not to file a complaint with 
respect to such charge before an administrative jaw judge within the 
120-day period, or at the end of the 120-day period, the Special Counsel 
shall issue letters of determination by certified mail which notify the 
charging party and the respondent of the Special Counsel's determination 
not to file a complaint.
    (c) When the charging party receives a letter of determination 
issued pursuant to Sec. 44.303(b), indicating that the Special Counsel 
will not file a complaint with respect to such charge, the charging 
party, other than an officer of the Immigration and Naturalization 
Service, may bring his or her complaint directly before an 
administrative law judge within 90 days after his or her receipt of the 
Special Counsel's letter of determination. The charging party's 
complaint must be filed with an administrative law judge pursuant to the 
regulations issued by the Office of the Chief Administrative Hearing 
Officer codified at 28 CFR 68.1.
    (d) The Special Counsel's failure to file a complaint with respect 
to such charge, before an administrative law judge within 120 days shall 
not affect the right of the Special Counsel to continue to investigate 
the charge or to bring a complaint before an administrative law judge 
during the additional 90-day period as defined by paragraph (c) of this 
section.
    (e) The Special Counsel may seek to intervene at any time in any 
proceeding brought by a charging party before an administrative law 
judge.

[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No. 
1520-91, 56 FR 40249, Aug. 14, 1991]



Sec. 44.304  Special Counsel acting on own initiative.

    (a) The Special Counsel may, on his or her own initiative, conduct 
investigations respecting unfair immigration-related employment 
practices when there is reason to believe that a person or entity has 
engaged or is engaging in such practices.
    (b) The Special Counsel may file a complaint with an administrative 
law judge where there is reasonable cause to believe that an unfair 
immigration-related employment practice has occurred within 180 days 
from the date of the filing of the complaint.



Sec. 44.305  Regional offices.

    The Special Counsel, in consultation with the Attorney General, 
shall establish such regional offices as may be necessary to carry out 
his or her duties.



PART 45--EMPLOYEE RESPONSIBILITIES--Table of Contents




Sec.
45.1  Cross-reference to ethical standards and financial disclosure 
          regulations.
45.2  Disqualification arising from personal or political relationship.
45.3  Disciplinary proceedings under 18 U.S.C. 207(j).
45.4  Personal use of Government property.

    Authority: 5 U.S.C. 301, 7301; 18 U.S.C. 207; 28 U.S.C. 503, 528; 
DOJ Order 1735.1.



Sec. 45.1  Cross-reference to ethical standards and financial disclosure regulations.

    Employees of the Department of Justice are subject to the executive 
branch-wide Standards of Ethical Conduct at 5 CFR part 2635, the 
Department of Justice regulations at 5 CFR part 3801 which supplement 
the executive branch-wide standards, the executive branch-wide financial 
disclosure regulations at 5 CFR part 2634 and the executive branch-wide 
employee responsibilities and conduct regulations at 5 CFR part 735.

[61 FR 59815, Nov. 25, 1996]



Sec. 45.2  Disqualification arising from personal or political relationship.

    (a) Unless authorized under paragraph (b) of this section, no 
employee shall participate in a criminal investigation or prosecution if 
he has a personal or political relationship with:

[[Page 13]]

    (1) Any person or organization substantially involved in the conduct 
that is the subject of the investigation or prosecution; or
    (2) Any person or organization which he knows has a specific and 
substantial interest that would be directly affected by the outcome of 
the investigation or prosecution.
    (b) An employee assigned to or otherwise participating in a criminal 
investigation or prosecution who believes that his participation may be 
prohibited by paragraph (a) of this section shall report the matter and 
all attendant facts and circumstances to his supervisor at the level of 
section chief or the equivalent or higher. If the supervisor determines 
that a personal or political relationship exists between the employee 
and a person or organization described in paragraph (a) of this section, 
he shall relieve the employee from participation unless he determines 
further, in writing, after full consideration of all the facts and 
circumstances, that:
    (1) The relationship will not have the effect of rendering the 
employee's service less than fully impartial and professional; and
    (2) The employee's participation would not create an appearance of a 
conflict of interest likely to affect the public perception of the 
integrity of the investigation or prosecution.
    (c) For the purposes of this section:
    (1) Political relationship means a close identification with an 
elected official, a candidate (whether or not successful) for elective, 
public office, a political party, or a campaign organization, arising 
from service as a principal adviser thereto or a principal official 
thereof; and
    (2) Personal relationship means a close and substantial connection 
of the type normally viewed as likely to induce partiality. An employee 
is presumed to have a personal relationship with his father, mother, 
brother, sister, child and spouse. Whether relationships (including 
friendships) of an employee to other persons or organizations are 
``personal'' must be judged on an individual basis with due regard given 
to the subjective opinion of the employee.
    (d) This section pertains to agency management and is not intended 
to create rights enforceable by private individuals or organizations.

[Order No. 993-83, 48 FR 2319, Jan. 19, 1983. Redesignated at 61 FR 
59815, Nov. 25, 1996]



Sec. 45.3  Disciplinary proceedings under 18 U.S.C. 207(j).

    (a) Upon a determination by the Assistant Attorney General in charge 
of the Criminal Division (Assistant Attorney General), after 
investigation, that there is reasonable cause to believe that a former 
officer or employee, including a former special Government employee, of 
the Department of Justice (former departmental employee) has violated 18 
U.S.C. 207 (a), (b) or (c), the Assistant Attorney General shall cause a 
copy of written charges of the violation(s) to be served upon such 
individual, either personally or by registered mail. The charges shall 
be accompanied by a notice to the former departmental employee to show 
cause within a specified time of not less than 30 days after receipt of 
the notice why he or she should not be prohibited from engaging in 
representational activities in relation to matters pending in the 
Department of Justice, as authorized by 18 U.S.C. 207(j), or subjected 
to other appropriate disciplinary action under that statute. The notice 
to show cause shall include:
    (1) A statement of allegations, and their basis, sufficiently 
detailed to enable the former departmental employee to prepare an 
adequate defense,
    (2) Notification of the right to a hearing, and
    (3) An explanation of the method by which a hearing may be 
requested.
    (b) If a former departmental employee who submits an answer to the 
notice to show cause does not request a hearing or if the Assistant 
Attorney General does not receive an answer within five days after the 
expiration of the time prescribed by the notice, the Assistant Attorney 
General shall forward the record, including the report(s) of 
investigation, to the Attorney General. In the case of a failure to 
answer, such failure shall constitute a waiver of defense.
    (c) Upon receipt of a former departmental employee's request for a 
hearing, the Assistant Attorney General shall notify him or her of the 
time and

[[Page 14]]

place thereof, giving due regard both to such person's need for an 
adequate period to prepare a suitable defense and an expeditious 
resolution of allegations that may be damaging to his or her reputation.
    (d) The presiding officer at the hearing and any related proceedings 
shall be a federal administrative law judge or other federal official 
with comparable duties. He shall insure that the former departmental 
employee has, among others, the rights:
    (1) To self-representation or representation by counsel,
    (2) To introduce and examine witnesses and submit physical evidence,
    (3) To confront and cross-examine adverse witnesses,
    (4) To present oral argument, and
    (5) To a transcript or recording of the proceedings, upon request.
    (e) The Assistant Attorney General shall designate one or more 
officers or employees of the Department of Justice to present the 
evidence against the former departmental employee and perform other 
functions incident to the proceedings.
    (f) A decision adverse to the former departmental employee must be 
sustained by substantial evidence that he violated 18 U.S.C. 207 (a), 
(b) or (c).
    (g) The presiding officer shall issue an initial decision based 
exclusively on the transcript of testimony and exhibits, together with 
all papers and requests filed in the proceeding, and shall set forth in 
the decision findings and conclusions, supported by reasons, on the 
material issues of fact and law presented on the record.
    (h) Within 30 days after issuance of the initial decision, either 
party may appeal to the Attorney General, who in that event shall issue 
the final decision based on the record of the proceedings or those 
portions thereof cited by the parties to limit the issues. If the final 
decision modifies or reverses the initial decision, the Attorney General 
shall specify the findings of fact and conclusions of law that vary from 
those of the presiding officer.
    (i) If a former departmental employee fails to appeal from an 
adverse initial decision within the prescribed period of time, the 
presiding officer shall forward the record of the proceedings to the 
Attorney General.
    (j) In the case of a former departmental employee who filed an 
answer to the notice to show cause but did not request a hearing, the 
Attorney General shall make the final decision on the record submitted 
to him by the Assistant Attorney General pursuant to subsection (b) of 
this section.
    (k) The Attorney General, in a case where:
    (1) The defense has been waived,
    (2) The former departmental employee has failed to appeal from an 
adverse initial decision, or
    (3) The Attorney General has issued a final decision that the former 
departmental employee violated 18 U.S.C. 207 (a), (b) or (c),

may issue an order:
    (i) Prohibiting the former departmental employee from making, on 
behalf of any other person (except the United States), any informal or 
formal appearance before, or, with the intent to influence, any oral or 
written communication to, the Department of Justice on a pending matter 
of business for a period not to exceed five years, or
    (ii) Prescribing other appropriate disciplinary action.
    (l) An order issued under either paragraph (k)(3) (i) or (ii) of 
this section may be supplemented by a directive to officers and 
employees of the Department of Justice not to engage in conduct in 
relation to the former departmental employee that would contravene such 
order.

[Order No. 889-80, 45 FR 31717, May 14, 1980. Redesignated at 61 FR 
59815, Nov. 25, 1996, and further redesignated at 62 FR 23943, May 2, 
1997]



Sec. 45.4  Personal use of Government property.

    (a) Employees may use Government property only for official business 
or as authorized by the Government. See 5 CFR 2635.101(b)(9), 
2635.704(a). The following uses of Government office and library 
equipment and facilities are hereby authorized:
    (1) Personal uses that involve only negligible expense (such as 
electricity, ink, small amounts of paper, and ordinary wear and tear); 
and

[[Page 15]]

    (2) Limited personal telephone/fax calls to locations within the 
office's commuting area, or that are charged to non-Government accounts.
    (b) The foregoing authorization does not override any statutes, 
rules, or regulations governing the use of specific types of Government 
property (e.g. internal Departmental policies governing the use of 
electronic mail; and 41 CFR (FPMR) 101-35.201, governing the authorized 
use of long-distance telephone services), and may be revoked or limited 
at any time by any supervisor or component for any business reason.
    (c) In using Government property, employees should be mindful of 
their responsibility to protect and conserve such property and to use 
official time in an honest effort to perform official duties. See 5 CFR 
2635.101(b)(9), 2635.704(a), 2635.705(a).

[62 FR 23943, May 2, 1997]



PART 46--PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
46.101  To what does this policy apply?
46.102  Definitions.
46.103  Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
46.104-46.106  [Reserved]
46.107  IRB Membership.
46.108  IRB functions and operations.
46.109  IRB review of research.
46.110  Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
46.111  Criteria for IRB approval of research.
46.112  Review by institution.
46.113  Suspension or termination of IRB approval of research.
46.114  Cooperative research.
46.115  IRB records.
46.116  General requirements for informed consent.
46.117  Documentation of informed consent.
46.118  Applications and proposals lacking definite plans for 
          involvement of human subjects.
46.119  Research undertaken without the intention of involving human 
          subjects.
46.120  Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
46.121  [Reserved]
46.122  Use of Federal funds.
46.123  Early termination of research support: Evaluation of 
          applications and proposals.
46.124  Conditions.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509-510; 42 U.S.C. 300v-1(b).

    Source: 56 FR 28012, 28020, June 18, 1991, unless otherwise noted.



Sec. 46.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 46.102(e), 
must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in 
Sec. 46.102(e) must be reviewed and approved, in compliance with 
Sec. 46.101, Sec. 46.102, and Sec. 46.107 through Sec. 46.117 of this 
policy, by an institutional review board (IRB) that operates in 
accordance with the pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison

[[Page 16]]

among instructional techniques, curricula, or classroom management 
methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and
    (ii) Any disclosure of the human subjects' responses outside the 
research could reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or
    (ii) Federal statute(s) require(s) without exception that the 
confidentiality of the personally identifiable information will be 
maintained throughout the research and thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs;
    (ii) Procedures for obtaining benefits or services under those 
programs;
    (iii) Possible changes in or alternatives to those programs or 
procedures; or
    (iv) Possible changes in methods or levels of payment for benefits 
or services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies,
    (i) If wholesome foods without additives are consumed or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by the Environmental 
Protection Agency or the Food Safety and Inspection Service of the U.S. 
Department of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
(An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the protection of human research 
subjects is internationally recognized.) In these circumstances, if a 
department or

[[Page 17]]

agency head determines that the procedures prescribed by the institution 
afford protections that are at least equivalent to those provided in 
this policy, the department or agency head may approve the substitution 
of the foreign procedures in lieu of the procedural requirements 
provided in this policy. Except when otherwise required by statute, 
Executive Order, or the department or agency head, notices of these 
actions as they occur will be published in the Federal Register or will 
be otherwise published as provided in department or agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Protection from 
Research Risks, Department of Health and Human Services (HHS), and shall 
also publish them in the Federal Register or in such other manner as 
provided in department or agency procedures.\1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR 46.101(b) do not apply to research involving 
prisoners, fetuses, pregnant women, or human in vitro fertilization, 
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research 
involving survey or interview procedures or observation of public 
behavior, does not apply to research with children, subpart D, except 
for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012 and 28020, June 18, 1991; 56 FR 29756, June 28, 1991]



Sec. 46.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. Private information includes information about 
behavior that occurs in a

[[Page 18]]

context in which an individual can reasonably expect that no observation 
or recording is taking place, and information which has been provided 
for specific purposes by an individual and which the individual can 
reasonably expect will not be made public (for example, a medical 
record). Private information must be individually identifiable (i.e., 
the identity of the subject is or may readily be ascertained by the 
investigator or associated with the information) in order for obtaining 
the information to constitute research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 46.103  Assuring compliance with this policy--research conducted or supported by any Federal Department or Agency.

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Protection from Research Risks, HHS, and approved for 
federalwide use by that office. When the existence of an HHS-approved 
assurance is accepted in lieu of requiring submission of an assurance, 
reports (except certification) required by this policy to be made to 
department and agency heads shall also be made to the Office for 
Protection from Research Risks, HHS.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 46.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for 
example: full-time employee, part-time

[[Page 19]]

employee, member of governing panel or board, stockholder, paid or 
unpaid consultant. Changes in IRB membership shall be reported to the 
department or agency head, unless in accord with Sec. 46.103(a) of this 
policy, the existence of an HHS-approved assurance is accepted. In this 
case, change in IRB membership shall be reported to the Office for 
Protection from Research Risks, HHS.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 46.101 (b) or (i). An institution with an approved assurance shall 
certify that each application or proposal for research covered by the 
assurance and by Sec. 46.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 46.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under control number 
9999-0020)

[56 FR 28012 and 28020, June 18, 1991; 56 FR 29756, June 28, 1991]



Secs. 46.104-46.106  [Reserved]



Sec. 46.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review

[[Page 20]]

of research activities commonly conducted by the institution. The IRB 
shall be sufficiently qualified through the experience and expertise of 
its members, and the diversity of the members, including consideration 
of race, gender, and cultural backgrounds and sensitivity to such issues 
as community attitudes, to promote respect for its advice and counsel in 
safeguarding the rights and welfare of human subjects. In addition to 
possessing the professional competence necessary to review specific 
research activities, the IRB shall be able to ascertain the 
acceptability of proposed research in terms of institutional commitments 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
vulnerable category of subjects, such as children, prisoners, pregnant 
women, or handicapped or mentally disabled persons, consideration shall 
be given to the inclusion of one or more individuals who are 
knowledgeable about and experienced in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec. 46.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 46.103(b)(4) and, to the extent required by, Sec. 46.103(b)(5).
    (b) Except when an expedited review procedure is used (see 
Sec. 46.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 46.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 46.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 46.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 46.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.

[[Page 21]]

    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 46.110  Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Protection from Research Risks, National Institutes of Health, HHS, 
Bethesda, Maryland 20892.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.

Under an expedited review procedure, the review may be carried out by 
the IRB chairperson or by one or more experienced reviewers designated 
by the chairperson from among members of the IRB. In reviewing the 
research, the reviewers may exercise all of the authorities of the IRB 
except that the reviewers may not disapprove the research. A research 
activity may be disapproved only after review in accordance with the 
non-expedited procedure set forth in Sec. 46.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.



Sec. 46.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 46.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 46.117.

[[Page 22]]

    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 46.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec. 46.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 46.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency head, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely upon the review of another qualified IRB, 
or make similar arrangements for avoiding duplication of effort.



Sec. 46.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is 
Sec. 46.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 46.103(b)(4) and Sec. 46.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 46.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of the research. All 
records shall be accessible for inspection and copying by authorized 
representatives of the department or agency at reasonable times and in a 
reasonable manner.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 46.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or

[[Page 23]]

the subject's legally authorized representative. An investigator shall 
seek such consent only under circumstances that provide the prospective 
subject or the representative sufficient opportunity to consider whether 
or not to participate and that minimize the possibility of coercion or 
undue influence. The information that is given to the subject or the 
representative shall be in language understandable to the subject or the 
representative. No informed consent, whether oral or written, may 
include any exculpatory language through which the subject or the 
representative is made to waive or appear to waive any of the subject's 
legal rights, or releases or appears to release the investigator, the 
sponsor, the institution or its agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and
    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit of service programs;
    (ii) Procedures for obtaining benefits or services under those 
programs;

[[Page 24]]

    (iii) Possible changes in or alternatives to those programs or 
procedures; or
    (iv) Possible changes in methods or levels of payment for benefits 
or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable federal, state, or local law.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 46.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 46.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 46.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each subject will be asked 
whether the subject wants documentation linking the subject with the 
research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.

In cases in which the documentation requirement is waived, the IRB may 
require the investigator to provide subjects with a written statement 
regarding the research.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 46.118  Applications and proposals lacking definite plans for involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or

[[Page 25]]

agencies with the knowledge that subjects may be involved within the 
period of support, but definite plans would not normally be set forth in 
the application or proposal. These include activities such as 
institutional type grants when selection of specific projects is the 
institution's responsibility; research training grants in which the 
activities involving subjects remain to be selected; and projects in 
which human subjects' involvement will depend upon completion of 
instruments, prior animal studies, or purification of compounds. These 
applications need not be reviewed by an IRB before an award may be made. 
However, except for research exempted or waived under Sec. 46.101 (b) or 
(i), no human subjects may be involved in any project supported by these 
awards until the project has been reviewed and approved by the IRB, as 
provided in this policy, and certification submitted, by the 
institution, to the department or agency.



Sec. 46.119  Research undertaken without the intention of involving human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted, by the institution, to the department or agency, and final 
approval given to the proposed change by the department or agency.



Sec. 46.120  Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.

    (a) The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.

[56 FR 28012, 28020, June 18, 1991, as amended at 61 FR 33658, June 28, 
1996]



Sec. 46.121  [Reserved]



Sec. 46.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 46.123  Early termination of research support: Evaluation of applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragraph (a) of this section and 
whether the applicant or the person or persons who would direct or has 
have directed the scientific and technical aspects of an activity has 
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec. 46.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment

[[Page 26]]

of the department or agency head additional conditions are necessary for 
the protection of human subjects.



PART 47--RIGHT TO FINANCIAL PRIVACY ACT--Table of Contents




Sec.
47.1  Definitions.
47.2  Purpose.
47.3  Authorization.
47.4  Written request.
47.5  Certification.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; section 1108 of the 
Right to Financial Privacy Act of 1978, 12 U.S.C. 3408.

    Source: Order No. 822-79, 44 FR 14554, Mar. 13, 1979, unless 
otherwise noted.



Sec. 47.1  Definitions.

    The terms used in this part shall have the same meaning as similar 
terms used in the Right to Financial Privacy Act of 1978. Departmental 
unit means any office, division, board, bureau, or other component of 
the Department of Justice which is authorized to conduct law enforcement 
inquiries. Act means the Right to Financial Privacy Act of 1978.



Sec. 47.2  Purpose.

    The purpose of these regulations is to authorize Departmental units 
to request financial records from a financial institution pursuant to 
the formal written request procedure authorized by section 1108 of the 
Act, and to set forth the conditions under which such requests may be 
made.



Sec. 47.3  Authorization.

    Departmental units are authorized to request financial records of 
any customer from a financial institution pursuant to a formal written 
request under the Act only if:
    (a) No administrative summons or subpoena authority reasonably 
appears to be available to the Departmental unit to obtain financial 
records for the purpose for which the records are sought;
    (b) There is reason to believe that the records sought are relevant 
to a legitimate law enforcement inquiry and will further that inquiry;
    (c) The request is issued by a supervisory official of a rank 
designated by the head of the requesting Departmental unit. The 
officials so designated shall not delegate this authority to others;
    (d) The request adheres to the requirements set forth in Sec. 47.4; 
and
    (e) The notice requirements set forth in section 1108(4) of the Act, 
or the requirements pertaining to delay of notice in section 1109 of the 
Act, are satisfied, except in situations (e.g., section 1113(g)) where 
no notice is required.



Sec. 47.4  Written request.

    (a) The formal written request shall be in the form of a letter or 
memorandum to an appropriate official of the financial institution from 
which financial records are requested. The request shall be signed by 
the issuing official, and shall set forth that official's name, title, 
business address and business phone number. The request shall also 
contain the following:
    (1) The identity of the customer or customers to whom the records 
pertain;
    (2) A reasonable description of the records sought; and
    (3) Such additional information as may be appropriate--e.g., the 
date on which the opportunity for the customer to challenge the formal 
written request will expire, the date on which the requesting 
Departmental unit expects to present a certificate of compliance with 
the applicable provisions of the Act, the name and title of the 
individual (if known) to whom disclosure is to be made.
    (b) In cases where customer notice is delayed by court order, a copy 
of the court order shall be attached to the formal written request.



Sec. 47.5  Certification.

    Prior to obtaining the requested records pursuant to a formal 
written request, an official of a rank designated by the head of the 
requesting Departmental unit shall certify in writing to the financial 
institution that the Departmental unit has complied with the applicable 
provisions of the Act.

[[Page 27]]



PART 48--NEWSPAPER PRESERVATION ACT--Table of Contents




Sec.
48.1  Purpose.
48.2  Definitions.
48.3  Procedure for filing all documents.
48.4  Application for approval of joint newspaper operating arrangement 
          entered into after July 24, 1970.
48.5  Requests that information not be made public.
48.6  Public notice.
48.7  Report of the Assistant Attorney General in Charge of the 
          Antitrust Division.
48.8  Written comments and requests for a hearing.
48.9  Extensions of time.
48.10  Hearings.
48.11  Intervention in hearings.
48.12  Ex parte communications.
48.13  Record for decision.
48.14  Decision by the Attorney General.
48.15  Temporary approval.
48.16  Procedure for filing of terms of a renewal or amendment to an 
          existing joint newspaper operating arrangement.

    Authority: 28 U.S.C. 509, 510; (5 U.S.C. 301); Newspaper 
Preservation Act, 84 Stat. 466 (15 U.S.C. 1801 et seq.).

    Source: Order No. 558-73, 39 FR 7, Jan. 2, 1974, unless otherwise 
noted.



Sec. 48.1  Purpose.

    These regulations set forth the procedure by which application may 
be made to the Attorney General for his approval of joint newspaper 
operating arrangements entered into after July 24, 1970, and for the 
filing with the Department of Justice of the terms of a renewal or 
amendment of existing joint newspaper operating arrangements, as 
required by the Newspaper Preservation Act, Pub. L. 91-353, 84 Stat. 
466, 15 U.S.C. 1801 et seq. The Newspaper Preservation Act does not 
require that all joint newspaper operating arrangements obtain the prior 
written consent of the Attorney General. The Act and these regulations 
provide a method for newspapers to obtain the benefit of a limited 
exemption from the antitrust laws if they desire to do so. Joint 
newspaper operating arrangements that are put into effect without the 
prior written consent of the Attorney General remain fully subject to 
the antitrust laws.



Sec. 48.2  Definitions.

    (a) The term Attorney General means the Attorney General of the 
United States or his delegate, other than the Assistant Attorney General 
in charge of the Antitrust Division or other employee in the Antitrust 
Division.
    (b) The term Assistant Attorney General in charge of the Antitrust 
Division means the Assistant Attorney General in charge of the Antitrust 
Division or his delegate.
    (c) The term Assistant Attorney General for Administration means the 
Assistant Attorney General for Administration or his delegate.
    (d) The term existing arrangement means any joint newspaper 
operating arrangement entered into before July 24, 1970.
    (e) The term joint newspaper operating arrangement means any 
contract, agreement, joint venture (whether or not incorporated), or 
other arrangement entered into between two or more newspaper owners for 
the publication of two or more newspaper publications, pursuant to which 
joint or common production facilities are established or operated and 
joint or unified action is taken or agreed to be taken with respect to 
any of the following: Printing; time, method, and field of publication; 
allocation of production facilities; distribution; advertising 
solicitation; circulation solicitation; business department; 
establishment of advertising rates; establishment of circulation rates 
and revenue distribution: Provided, That there is no merger, 
combination, or amalgamation of editorial or reportorial staffs, and 
that editorial policies be independently determined.
    (f) The term newspaper means a publication produced on newsprint 
paper which is published in one or more issues weekly (including as one 
publication any daily newspaper and any Sunday newspaper published by 
the same owner in the same city, community, or metropolitan area), and 
in which a substantial portion of the content is devoted to the 
dissemination of news and editorial opinion.
    (g) The term party means any individual, and any partnership, 
corporation, association, or other legal entity.

[[Page 28]]

    (h) The term person means any individual, and any partnership, 
corporation, association, or other legal entity.



Sec. 48.3  Procedure for filing all documents.

    All filings required by these regulations shall be accomplished by:
    (a) Mailing or delivering five copies of each document (two copies 
in the case of documents filed by the Assistant Attorney General in 
charge of the Antitrust Division) to the Assistant Attorney General for 
Administration, Department of Justice, Washington, DC 20530. He shall 
place one copy in a numbered public docket; one copy in a duplicate of 
this file for the use of officials with decisional responsibility; and 
(except in the case of documents filed by the Assistant Attorney General 
in charge of the Antitrust Division) shall forward three copies to the 
Assistant Attorney General in charge of the Antitrust Division; except 
that documents subject to nondisclosure orders under Sec. 48.5 shall be 
held under seal and disclosed only in accordance with the provisions of 
that section; and
    (b) Mailing or delivering one copy of each document filed after a 
hearing has been ordered to each party to the proceedings, along with 
the name and address of the party filing the document or its counsel, 
and filing in the manner provided in paragraph (a) of this section a 
certificate that service has been made in accordance herewith.



Sec. 48.4  Application for approval of joint newspaper operating arrangement entered into after July 24, 1970.

    (a) Persons desiring to obtain the approval of the Attorney General 
of a joint newspaper operating arrangement after July 24, 1970, shall 
file an application in writing setting forth a short, plain statement of 
the reasons why the applicants believe that approval should be granted.
    (b) With the request, the applicants shall also file copies of the 
following:
    (1) The proposed joint newspaper operating agreement;
    (2) Any prior, existing or proposed agreement between any of the 
newspapers involved, or a statement of any such agreements as have not 
been reduced to writing;
    (3) With respect to each newspaper, for the 5-year period prior to 
the date of the application,
    (i) Annual statements of profit and loss;
    (ii) Annual statements of assets and liabilities;
    (iii) Reports of the Audit Bureau of Circulation, or statements 
containing equivalent information;
    (iv) Annual advertising lineage records;
    (v) Rate cards;
    (4) If any amount stated in paragraph (b)(3)(i) or (ii) of this 
section represents an allocation of revenues, expenses, assets or 
liabilities between the newspaper and any parent, subsidiary, division 
or affiliate, the financial statements shall be accompanied by a full 
explanation of the method by which each such amount has been allocated.
    (5) If any of the newspapers involved purchased or sold goods or 
services from or to any parent, subsidiary, division or affiliate at any 
time during the five years preceding the date of application, a 
statement shall be submitted identifying such products or services, the 
entity from which they were purchased or to which they were sold, and 
the amount paid for each product or service during each of the five 
years.
    (6) Any other information which the applicants believe relevant to 
their request for approval.
    (c) A copy of the application and supporting data shall be open to 
public inspection during normal business hours at the main office of 
each of the newspapers involved in the arrangement, except to the extent 
permitted by nondisclosure orders under Sec. 48.5; except that materials 
for which nondisclosure has been requested under Sec. 48.5 need not be 
made available for inspection before the request has been decided.



Sec. 48.5  Requests that information not be made public.

    (a) Any applicant may file a request that commercial or financial 
data required to be filed and made public under these regulations, which 
is privileged and confidential within the meaning of 5 U.S.C. 552(b), be 
withheld from public disclosure. Each such request shall be accompanied 
by a statement of the reasons why nondisclosure

[[Page 29]]

is required. The request shall be determined by the Attorney General who 
shall consider the extent to which (1) disclosure may cause substantial 
harm to the applicant submitting the information, and (2) nondisclosure 
may impair the ability of persons who may be adversely affected by the 
proposed arrangement to present their views in proceedings under these 
regulations. Information relevant to the financial conditions of the 
newspaper or newspapers represented to be failing ordinarily shall not 
be ordered withheld from public disclosure.
    (b) Upon ordering that any documents be withheld from public 
disclosure, the Attorney General shall file a statement setting forth 
the subject matter of the documents withheld. Any person desiring to 
inspect the documents may file a request for inspection, identifying 
with as much particularity as possible the materials to be inspected and 
setting forth the reasons for inspection and the facts in support 
thereof. The request for disclosure shall be considered by the Attorney 
General, who shall give the applicant that submitted the documents an 
opportunity to be heard in opposition to disclosure. Orders granting 
inspection shall specify the terms and conditions thereof, including 
restrictions on disclosure to third parties.
    (c) Documents ordered withheld from public disclosure shall be made 
available to the Assistant Attorney General in charge of the Antitrust 
Division. If a hearing is held, the documents may be offered as evidence 
by any party to whom they have been disclosed. The administrative law 
judge may restrict further disclosure as he deems appropriate, taking 
into account the considerations set forth in paragraph (a) of this 
section.
    (d) Requests for access to materials within the scope of this 
section that may be filed after the conclusion of proceedings under 
these regulations shall be processed in accordance with the Department's 
regulations under 5 U.S.C. 552 (part 16 of this chapter).



Sec. 48.6  Public notice.

    (a) Upon the filing of the documents required by Sec. 48.4, the 
applicants shall file, and publish on the front pages of each of the 
newspapers for which application is made, daily and Sunday (if a Sunday 
edition is published) for a period of one week:
    (1) Notice that a request for approval of a joint newspaper 
operating arrangement has been filed with the Attorney General;
    (2) Notice that copies of the proposed arrangement, as well as all 
other documents submitted pursuant to Sec. 48.4, are available for 
public inspection at the Department of Justice and at the main offices 
of the newspapers involved; and
    (3) Notice that any person may file written comments or a request 
for a hearing with the Department of Justice, in accordance with the 
requirements of Sec. 48.3.
    (b) Upon the filing of the notice required in paragraph (a) of this 
section, the Assistant Attorney General for Administration shall cause 
notice to be published in the Federal Register, and shall cause to be 
issued a press release setting forth the information contained therein.
    (c) If a hearing is scheduled pursuant to Sec. 48.10, the applicants 
shall publish the time, date, place and purpose of such hearing on their 
respective front pages at least three times within the 2-week period 
after the hearing has been scheduled (two times if the applicants are 
weekly newspapers), and for the 3 days preceding such hearing (one day 
during the week preceding the hearing if the applicants are weekly 
newspapers).
    (d) The applicants shall file copies of each day's newspaper in 
which the notice required in paragraph (a) or (c) of this section has 
appeared.



Sec. 48.7  Report of the Assistant Attorney General in Charge of the Antitrust Division.

    (a) The Assistant Attorney General in charge of the Antitrust 
Division shall, not later than 30 days from the publication in the 
Federal Register of the notice required by Sec. 48.6, submit to the 
Attorney General a report on any application filed pursuant to 
Sec. 48.4. In preparing such report he may require submission by the 
applicants of any further information which may be relevant to a 
determination of whether

[[Page 30]]

approval of the proposed arrangement is warranted under the Act.
    (b) In his report he may state (1) that the proposed arrangement 
should be approved or disapproved without a hearing; or (2) that a 
hearing should be held to resolve material issues of fact.
    (c) The report shall be filed, and a copy shall be sent to the 
applicants. Upon the filing of the report, the Assistant Attorney 
General for Administration shall cause to be issued a press release 
setting forth the substance thereof.
    (d) Any person may, within 30 days after filing of the report, file 
a reply to the report for the consideration of the Attorney General.



Sec. 48.8  Written comments and requests for a hearing.

    (a) Any person who believes that the Attorney General should or 
should not approve a proposed arrangement, may at any time after filing 
of the application until 30 days after publication in the Federal 
Register of the notice required in Sec. 48.6,
    (1) File written comments stating the reasons why approval should or 
should not be granted, and/or
    (2) File a request that a hearing be held on the application. A 
request for a hearing shall set forth the issues of fact to be 
determined and the reasons that a hearing is required to determine them.
    (b) Any person may within 30 days after the filing of any comment or 
request pursuant to paragraph (a) of this section, file a reply for the 
consideration of the Attorney General.
    (c) After the expiration of the time for filing of replies in 
accordance with Sec. 48.7 and this section the Attorney General shall 
either approve or deny approval of the arrangement, in accordance with 
Sec. 48.14, or shall order that a hearing be held.



Sec. 48.9  Extensions of time.

    Any of the time periods established by these Regulations may be 
extended for good cause, upon timely application to the Attorney 
General, or to the administrative law judge if one has been appointed.



Sec. 48.10  Hearings.

    (a) Upon the issuance by the Attorney General of an order for a 
hearing, the Assistant Attorney General for Administration shall appoint 
an administrative law judge in accordance with section 11 of the 
Administrative Procedure Act, 5 U.S.C. 3105. The administrative law 
judge shall:
    (1) Set a date, time and place for the hearing convenient for all 
parties involved. The date set shall be as soon as practicable, allowing 
time for publication of the notice required in Sec. 48.6 and for a 
reasonable period of discovery as provided in this section. In setting a 
place for the hearing, preference shall be given to the community in 
which the applicants' newspapers operate.
    (2) Mail notice of the hearing to the parties, to each person who 
filed written comments or a request for a hearing, and to any other 
person he believes may have an interest in the proceeding.
    (3) Permit discovery by any party, as provided in the Federal Rules 
of Civil Procedure; except that he may place such limits as he deems 
reasonable on the time and manner of taking discovery in order to avoid 
unnecessary delays in the proceedings.
    (4) Conduct a hearing in accordance with section 7 of the 
Administrative Procedure Act, 5 U.S.C. 556. At such hearing, the burden 
of proving that the proposed arrangement meets the requirements of the 
Newspaper Preservation Act will be on the proponents of the arrangement. 
The rules of evidence which govern civil proceedings in matters not 
involving trial by jury in the courts of the United States shall apply, 
but these rules may be relaxed if the ends of justice will be better 
served in so doing: Provided, that the introduction of irrelevant, 
immaterial, or unduly repetitious evidence is avoided. Only parties to 
the proceedings may present evidence, or cross-examine witnesses.
    (b) The applicants and the Assistant Attorney General in charge of 
the Antitrust Division shall be parties in any hearing held hereunder. 
Other persons may intervene as parties as provided in Sec. 48.11.
    (c) The Assistant Attorney General for Administration shall procure 
the

[[Page 31]]

services of a stenographic reporter. One copy of the transcript produced 
shall be placed in the public docket. Additional copies may be purchased 
from the reporter or, if the arrangement with the reporter permits, from 
the Department of Justice at its cost.
    (d) Following the hearing the administrative law judge shall render 
to the Attorney General his recommendation that the proposed arrangement 
be approved or denied approval in accordance with the standards of the 
Act. The recommendation shall be in writing, shall be based solely on 
the hearing record, and shall include a statement of the administrative 
law judge's findings and conclusions, and the reasons or basis therefor, 
on all material issues of fact, law or discretion presented on the 
record. Copies of the recommendation shall be filed and sent to each 
party.
    (e) Within 30 days of the date the administrative law judge files 
his recommendation, any party may file written exceptions to the 
recommendation for consideration by the Attorney General. Parties shall 
then have a further 15 days in which to file responses to any such 
exceptions.



Sec. 48.11  Intervention in hearings.

    (a) Any person may intervene as a party in a hearing held under 
these regulations if (1) he has an interest which may be affected by the 
Attorney General's decision, and (2) it appears that his interest may 
not be adequately represented by existing parties.
    (b) Application for intervention shall be made by filing in 
accordance with Sec. 48.3(a) and (b), within 20 days after a hearing has 
been ordered, a statement of the nature of the applicant's interest, the 
way in which it may be affected, the facts and reasons in support 
thereof and the reasons why the applicant's interest may not be 
adequately represented by existing parties.
    (c) Existing parties may file a statement in opposition to or in 
support of an application to intervene within 10 days of the filing of 
the application.
    (d) Applications for intervention shall be decided by the Attorney 
General.
    (e) Intervenors shall have the same rights as existing parties in 
connection with any hearing held under these regulations.



Sec. 48.12  Ex parte communications.

    No person shall communicate on any matter related to these 
proceedings with the administrative law judge, the Attorney General or 
anyone having decisional responsibility, except as provided in these 
regulations.



Sec. 48.13  Record for decision.

    (a) The record on which the Attorney General shall base his decision 
in the event a hearing is not held shall be comprised of all material 
filed in accordance with these regulations, including any material that 
has been ordered withheld from public disclosure.
    (b) If a hearing is held, the record on which the Attorney General 
shall base his decision shall consist exclusively of the hearing record, 
the examiner's recommendation and any exceptions and responses filed 
with respect thereto.



Sec. 48.14  Decision by the Attorney General.

    (a) The Attorney General shall decide, on the basis of the record as 
constituted in accordance with Sec. 48.13, whether approval is warranted 
under the Act. In rendering his decision, the Attorney General shall 
file therewith a statement of his findings and conclusions and the 
reasons therefor, or where a hearing has been held, he may adopt the 
findings and conclusions of the administrative law judge.
    (b) Approval of a proposed arrangement by the Attorney General shall 
not become effective until the tenth day after the filing of the 
Attorney General's decision as provided in this section.



Sec. 48.15  Temporary approval.

    (a) If the Attorney General concludes that one or more of the 
newspapers involved would otherwise fail before the procedures under 
these regulations can be completed, he may grant temporary approval of 
whatever form of joint or unified action would be lawful under the Act 
if performed as part of an approved joint newspaper operating 
arrangement, and that he concludes is:

[[Page 32]]

(1) Essential to the survival of the newspaper or newspapers; and (2) 
most likely capable of being terminated without impairment to the 
ability of both newspapers to resume independent operation should final 
approval eventually be denied.
    (b) Upon the filing of a request for temporary approval, the 
applicants shall publish notice of such application on the front pages 
of their respective newspapers for a period of three consecutive days in 
the case of daily newspapers or in the next issue in the case of weekly 
newspapers. The notice shall state:
    (1) That a request for temporary approval of a joint operating 
arrangement or other joint or unified action has been made to the 
Attorney General; and
    (2) That anyone wishing to protest the application for temporary 
approval may do so by delivering a statement of protest or telephoning 
his views to an employee of the Department of Justice, whose name, 
address and telephone number shall be designated by the Department upon 
receipt of the application for temporary approval, and that such 
protests must be received by the Department within five days of the 
first publication of notice in accordance with paragraph (a) of this 
section.
    (c) The notice required by this section shall be in addition to the 
notice required by Sec. 48.6.
    (d) Such temporary approval may be granted without hearing at any 
time following the expiration of the period provided for protests, but 
shall create no presumption that final approval will be granted.



Sec. 48.16  Procedure for filing of terms of a renewal or amendment to an existing joint newspaper operating arrangement.

    Within 30 days after a renewal of or an amendment to the terms of an 
existing arrangement, the parties to said renewal or amendment shall 
file five copies of the agreement of renewal or amendment. In the case 
of an amendment, the parties shall also file copies of the amended 
portion of the original agreement.

[Order No. 558-73, 39 FR 7, Jan. 2, 1974, as amended by Order No. 568-
74, 39 FR 18646, May 29, 1974]



PART 49--ANTITRUST CIVIL PROCESS ACT--Table of Contents




Sec.
49.1  Purpose.
49.2  Duties of custodian.
49.3  Examination of the material.
49.4  Deputy custodians.

    Authority: 15 U.S.C. 1313.

    Source: At 60 FR 44277, Aug. 25, 1995, unless otherwise noted.



Sec. 49.1  Purpose.

    The regulations in this part are issued in compliance with the 
requirements imposed by the provisions of section 4(c) of the Antitrust 
Civil Process Act, as amended (15 U.S.C. 1313(c)). The terms used in 
this part shall be deemed to have the same meaning as similar terms used 
in that Act.



Sec. 49.2  Duties of custodian.

    (a) Upon taking physical possession of documentary material, answers 
to interrogatories, or transcripts of oral testimony delivered pursuant 
to a civil investigative demand issued under section 3(a) of the Act, 
the antitrust document custodian designated pursuant to section 4(a) of 
the Act (subject to the general supervision of the Assistant Attorney 
General in charge of the Antitrust Division), shall, unless otherwise 
directed by a court of competent jurisdiction, select, from time to 
time, from among such documentary material, answers to interrogatories 
or transcripts of oral testimony, the documentary material, answers to 
interrogatories or transcripts of oral testimony the copying of which 
the custodian deems necessary or appropriate for the official use of the 
Department of Justice, and shall determine, from time to time, the 
number of copies of any such documentary material, answers to 
interrogatories or transcripts of oral testimony that are to be 
reproduced pursuant to the Act.

[[Page 33]]

    (b) Copies of documentary material, answers to interrogatories, or 
transcripts of oral testimony in the physical possession of the 
custodian pursuant to a civil investigative demand may be reproduced by 
or under the authority of any officer, employee, or agent of the 
Department of Justice designated by the custodian. Documentary material 
for which a civil investigative demand has been issued but which is 
still in the physical possession of the person upon whom the demand has 
been served may, by agreement between such person and the custodian, be 
reproduced by such person, in which case the custodian may require that 
the copies so produced be duly certified as true copies of the original 
of the material involved.

[60 FR 44277, Aug. 25, 1995; 60 FR 61290, Nov. 29, 1995]



Sec. 49.3  Examination of the material.

    Documentary material, answers to interrogatories, or transcripts of 
oral testimony produced pursuant to the Act, while in the custody of the 
custodian, shall be for the official use of officers, employees, and 
agents of the Department of Justice in accordance with the Act. Upon 
reasonable notice to the custodian--
    (a) Such documentary material or answers to interrogatories shall be 
made available for examination by the person who produced such 
documentary material or answers to interrogatories, or by any duly 
authorized representative of such person; and
    (b) Such transcripts of oral testimony shall be made available for 
examination by the person who produced such testimony, or by such 
person's counsel, during regular office hours established for the 
Department of Justice. Examination of such documentary material, answers 
to interrogatories, or transcripts of oral testimony at other times may 
be authorized by the Assistant Attorney General or the custodian.

[60 FR 44277, Aug. 25, 1995; 60 FR 61290, Nov. 29, 1995]



Sec. 49.4  Deputy custodians.

    Deputy custodians may perform such of the duties assigned to the 
custodian as may be authorized or required by the Assistant Attorney 
General.



PART 50--STATEMENTS OF POLICY--Table of Contents




Sec.
50.2  Release of information by personnel of the Department of Justice 
          relating to criminal and civil proceedings.
50.3  Guidelines for the enforcement of title VI, Civil Rights Act of 
          1964.
50.5  Notification of Consular Officers upon the arrest of foreign 
          nationals.
50.6  Antitrust Division business review procedure.
50.7  Consent judgments in actions to enjoin discharges of pollutants.
50.8  [Reserved]
50.9  Policy with regard to open judicial proceedings.
50.10  Policy with regard to the issuance of subpoenas to members of the 
          news media, subpoenas for telephone toll records of members of 
          the news media, and the interrogation, indictment, or arrest 
          of, members of the news media.
50.12  Exchange of FBI identification records.
50.14  Guidelines on employee selection procedures.
50.15  Representation of Federal officials and employees by Department 
          of Justice attorneys or by private counsel furnished by the 
          Department in civil, criminal, and congressional proceedings 
          in which Federal employees are sued, subpoenaed, or charged in 
          their individual capacities.
50.16  Representation of Federal employees by private counsel at Federal 
          expense.
50.17  Ex parte communications in informal rulemaking proceedings.
50.18  [Reserved]
50.19  Procedures to be followed by government attorneys prior to filing 
          recusal or disqualification motions.
50.20  Participation by the United States in court-annexed arbitration.
50.21  Procedures governing the destruction of contraband drug evidence 
          in the custody of Federal law enforcement authorities.
50.22  Young American Medals Program.
50.23  Policy against entering into final settlement agreements or 
          consent decree that are subject to confidentiality provisions 
          and against seeking or concurring in the sealing of such 
          documents.
50.24  Annuity broker minimum qualifications.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 1921 et seq., 
1973c; and Public Law 107-273, 116 Stat. 1758, 1824.

[[Page 34]]



Sec. 50.2  Release of information by personnel of the Department of Justice relating to criminal and civil proceedings.

    (a) General. (1) The availability to news media of information in 
criminal and civil cases is a matter which has become increasingly a 
subject of concern in the administration of justice. The purpose of this 
statement is to formulate specific guidelines for the release of such 
information by personnel of the Department of Justice.
    (2) While the release of information for the purpose of influencing 
a trial is, of course, always improper, there are valid reasons for 
making available to the public information about the administration of 
the law. The task of striking a fair balance between the protection of 
individuals accused of crime or involved in civil proceedings with the 
Government and public understandings of the problems of controlling 
crime and administering government depends largely on the exercise of 
sound judgment by those responsible for administering the law and by 
representatives of the press and other media.
    (3) Inasmuch as the Department of Justice has generally fulfilled 
its responsibilities with awareness and understanding of the competing 
needs in this area, this statement, to a considerable extent, reflects 
and formalizes the standards to which representatives of the Department 
have adhered in the past. Nonetheless, it will be helpful in ensuring 
uniformity of practice to set forth the following guidelines for all 
personnel of the Department of Justice.
    (4) Because of the difficulty and importance of the questions they 
raise, it is felt that some portions of the matters covered by this 
statement, such as the authorization to make available Federal 
conviction records and a description of items seized at the time of 
arrest, should be the subject of continuing review and consideration by 
the Department on the basis of experience and suggestions from those 
within and outside the Department.
    (b) Guidelines to criminal actions. (1) These guidelines shall apply 
to the release of information to news media from the time a person is 
the subject of a criminal investigation until any proceeding resulting 
from such an investigation has been terminated by trial or otherwise.
    (2) At no time shall personnel of the Department of Justice furnish 
any statement or information for the purpose of influencing the outcome 
of a defendant's trial, nor shall personnel of the Department furnish 
any statement or information, which could reasonably be expected to be 
disseminated by means of public communication, if such a statement or 
information may reasonably be expected to influence the outcome of a 
pending or future trial.
    (3) Personnel of the Department of Justice, subject to specific 
limitations imposed by law or court rule or order, may make public the 
following information:
    (i) The defendant's name, age, residence, employment, marital 
status, and similar background information.
    (ii) The substance or text of the charge, such as a complaint, 
indictment, or information.
    (iii) The identity of the investigating and/or arresting agency and 
the length or scope of an investigation.
    (iv) The circumstances immediately surrounding an arrest, including 
the time and place of arrest, resistance, pursuit, possession and use of 
weapons, and a description of physical items seized at the time of 
arrest.

Disclosures should include only incontrovertible, factual matters, and 
should not include subjective observations. In addition, where 
background information or information relating to the circumstances of 
an arrest or investigation would be highly prejudicial or where the 
release thereof would serve no law enforcement function, such 
information should not be made public.
    (4) Personnel of the Department shall not disseminate any 
information concerning a defendant's prior criminal record.
    (5) Because of the particular danger of prejudice resulting from 
statements in the period approaching and during trial, they ought 
strenuously to be avoided during that period. Any such statement or 
release shall be made only on the infrequent occasion when circumstances 
absolutely demand a

[[Page 35]]

disclosure of information and shall include only information which is 
clearly not prejudicial.
    (6) The release of certain types of information generally tends to 
create dangers of prejudice without serving a significant law 
enforcement function. Therefore, personnel of the Department should 
refrain from making available the following:
    (i) Observations about a defendant's character.
    (ii) Statements, admissions, confessions, or alibis attributable to 
a defendant, or the refusal or failure of the accused to make a 
statement.
    (iii) Reference to investigative procedures such as fingerprints, 
polygraph examinations, ballistic tests, or laboratory tests, or to the 
refusal by the defendant to submit to such tests or examinations.
    (iv) Statements concerning the identity, testimony, or credibility 
of prospective witnesses.
    (v) Statements concerning evidence or argument in the case, whether 
or not it is anticipated that such evidence or argument will be used at 
trial.
    (vi) Any opinion as to the accused's guilt, or the possibility of a 
plea of guilty to the offense charged, or the possibility of a plea to a 
lesser offense.
    (7) Personnel of the Department of Justice should take no action to 
encourage or assist news media in photographing or televising a 
defendant or accused person being held or transported in Federal 
custody. Departmental representatives should not make available 
photographs of a defendant unless a law enforcement function is served 
thereby.
    (8) This statement of policy is not intended to restrict the release 
of information concerning a defendant who is a fugitive from justice.
    (9) Since the purpose of this statement is to set forth generally 
applicable guidelines, there will, of course, be situations in which it 
will limit the release of information which would not be prejudicial 
under the particular circumstances. If a representative of the 
Department believes that in the interest of the fair administration of 
justice and the law enforcement process information beyond these 
guidelines should be released, in a particular case, he shall request 
the permission of the Attorney General or the Deputy Attorney General to 
do so.
    (c) Guidelines to civil actions. Personnel of the Department of 
Justice associated with a civil action shall not during its 
investigation or litigation make or participate in making an 
extrajudicial statement, other than a quotation from or reference to 
public records, which a reasonable person would expect to be 
disseminated by means of public communication if there is a reasonable 
likelihood that such dissemination will interfere with a fair trial and 
which relates to:
    (1) Evidence regarding the occurrence or transaction involved.
    (2) The character, credibility, or criminal records of a party, 
witness, or prospective witness.
    (3) The performance or results of any examinations or tests or the 
refusal or failure of a party to submit to such.
    (4) An opinion as to the merits of the claims or defenses of a 
party, except as required by law or administrative rule.
    (5) Any other matter reasonably likely to interfere with a fair 
trial of the action.

[Order No. 469-71, 36 FR 21028, Nov. 3, 1971, as amended by Order No. 
602-75, 40 FR 22119, May 20, 1975]



Sec. 50.3  Guidelines for the enforcement of title VI, Civil Rights Act of 1964.

    (a) Where the heads of agencies having responsibilities under title 
VI of the Civil Rights Act of 1964 conclude there is noncompliance with 
regulations issued under that title, several alternative courses of 
action are open. In each case, the objective should be to secure prompt 
and full compliance so that needed Federal assistance may commence or 
continue.
    (b) Primary responsibility for prompt and vigorous enforcement of 
title VI rests with the head of each department and agency administering 
programs of Federal financial assistance. Title VI itself and relevant 
Presidential directives preserve in each agency the authority and the 
duty to select, from among the available sanctions, the methods best 
designed to secure compliance in individual cases. The decision to 
terminate or refuse assistance

[[Page 36]]

is to be made by the agency head or his designated representative.
    (c) This statement is intended to provide procedural guidance to the 
responsible department and agency officials in exercising their 
statutory discretion and in selecting, for each noncompliance situation, 
a course of action that fully conforms to the letter and spirit of 
section 602 of the Act and to the implementing regulations promulgated 
thereunder.

                    I. Alternative Courses of Action

                          a. ultimate sanctions

    The ultimate sanctions under title VI are the refusal to grant an 
application for assistance and the termination of assistance being 
rendered. Before these sanctions may be invoked, the Act requires 
completion of the procedures called for by section 602. That section 
require the department or agency concerned (1) to determine that 
compliance cannot be secured by voluntary means, (2) to consider 
alternative courses of action consistent with achievement of the 
objectives of the statutes authorizing the particular financial 
assistance, (3) to afford the applicant an opportunity for a hearing, 
and (4) to complete the other procedural steps outlined in section 602, 
including notification to the appropriate committees of the Congress.
    In some instances, as outlined below, it is legally permissible 
temporarily to defer action on an application for assistance, pending 
initiation and completion of section 602 procedures--including attempts 
to secure voluntary compliance with title VI. Normally, this course of 
action is appropriate only with respect to applications for 
noncontinuing assistance or initial applications for programs of 
continuing assistance. It is not available where Federal financial 
assistance is due and payable pursuant to a previously approved 
application.
    Whenever action upon an application is deferred pending the outcome 
of a hearing and subsequent section 602 procedures, the efforts to 
secure voluntary compliance and the hearing and such subsequent 
procedures, if found necessary, should be conducted without delay and 
completed as soon as possible.

                        b. available alternatives

                          1. Court Enforcement

    Compliance with the nondiscrimination mandate of title VI may often 
be obtained more promptly by appropriate court action than by hearings 
and termination of assistance. Possibilities of judicial enforcement 
include (1) a suit to obtain specific enforcement of assurances, 
covenants running with federally provided property, statements or 
compliance or desegregation plans filed pursuant to agency regulations, 
(2) a suit to enforce compliance with other titles of the 1964 Act, 
other Civil Rights Acts, or constitutional or statutory provisions 
requiring nondiscrimination, and (3) initiation of, or intervention or 
other participation in, a suit for other relief designed to secure 
compliance.
    The possibility of court enforcement should not be rejected without 
consulting the Department of Justice. Once litigation has been begun, 
the affected agency should consult with the Department of Justice before 
taking any further action with respect to the noncomplying party.

                        2. Administrative Action

    A number of effective alternative courses not involving litigation 
may also be available in many cases. These possibilities include (1) 
consulting with or seeking assistance from other Federal agencies (such 
as the Contract Compliance Division of the Department of Labor) having 
authority to enforce nondiscrimination requirements; (2) consulting with 
or seeking assistance from State or local agencies having such 
authority; (3) bypassing a recalcitrant central agency applicant in 
order to obtain assurances from, or to grant assistance to complying 
local agencies; and (4) bypassing all recalcitrant non-Federal agencies 
and providing assistance directly to the complying ultimate 
beneficiaries. The possibility of utilizing such administrative 
alternatives should be considered at all stages of enforcement and used 
as appropriate or feasible.

                    c. inducing voluntary compliance

    Title VI requires that a concerted effort be made to persuade any 
noncomplying applicant or recipient voluntarily to comply with title VI. 
Efforts to secure voluntary compliance should be undertaken at the 
outset in every noncompliance situation and should be pursued through 
each stage of enforcement action. Similarly, where an applicant fails to 
file an adequate assurance or apparently breaches its terms, notice 
should be promptly given of the nature of the noncompliance problem and 
of the possible consequences thereof, and an immediate effort made to 
secure voluntary compliance.

                             II. Procedures

                           a. new applications

    The following procedures are designed to apply in cases of 
noncompliance involving applications for one-time or noncontinuing 
assistance and initial applications for new or existing programs of 
continuing assistance.

1. Where the Requisite Assurance Has Not Been Filed or Is Inadequate on 
Its Face.

    Where the assurance, statement of compliance or plan of 
desegregation required by

[[Page 37]]

agency regulations has not been filed or where, in the judgment of the 
head of the agency in question, the filed assurance fails on its face to 
satisfy the regulations, the agency head should defer action on the 
application pending prompt initiation and completion of section 602 
procedures. The applicant should be notified immediately and attempts 
made to secure voluntary compliance. If such efforts fail, the applicant 
should promptly be offered a hearing for the purpose of determining 
whether an adequate assurance has in fact been filed.
    If it is found that an adequate assurance has not been filed, and if 
administrative alternatives are ineffective or inappropriate, and court 
enforcement is not feasible, section 602 procedures may be completed and 
assistance finally refused.

2. Where it Appears that the Field Assurance Is Untrue or Is Not Being 
Honored.

    Where an otherwise adequate assurance, statement of compliance, or 
plan has been filed in connection with an application for assistance, 
but prior to completion of action on the application the head of the 
agency in question has reasonable grounds, based on a substantiated 
complaint, the agency's own investigation, or otherwise, to believe that 
the representations as to compliance are in some material respect untrue 
or are not being honored, the agency head may defer action on the 
application pending prompt initiation and completion of section 602 
procedures. The applicant should be notified immediately and attempts 
made to secure voluntary compliance. If such efforts fail and court 
enforcement is determined to be ineffective or inadequate, a hearing 
should be promptly initiated to determine whether, in fact, there is 
noncompliance.
    If noncompliance is found, and if administrative alternatives are 
ineffective or inappropriate and court enforcement is still not 
feasible, section 602 procedures may be completed and assistance finally 
refused.
    The above-described deferral and related compliance procedures would 
normally be appropriate in cases of an application for noncontinuing 
assistance. In the case of an initial application for a new or existing 
program of continuing assistance, deferral would often be less 
appropriate because of the opportunity to secure full compliance during 
the life of the assistance program. In those cases in which the agency 
does not defer action on the application, the applicant should be given 
prompt notice of the asserted noncompliance; funds should be paid out 
for short periods only, with no long-term commitment of assistance 
given; and the applicant advised that acceptance of the funds carries an 
enforceable obligation of nondiscrimination and the risk of invocation 
of severe sanctions, if noncompliance in fact is found.

          b. requests for continuation or renewal of assistance

    The following procedures are designed to apply in cases of 
noncompliance involving all submissions seeking continuation or renewal 
under programs of continuing assistance.
    In cases in which commitments for Federal financial assistance have 
been made prior to the effective date of title VI regulations and funds 
have not been fully disbursed, or in which there is provision for future 
periodic payments to continue the program or activity for which a 
present recipient has previously applied and qualified, or in which 
assistance is given without formal application pursuant to statutory 
direction or authorization, the responsible agency may nonetheless 
require an assurance, statement of compliance, or plan in connection 
with disbursement or further funds. However, once a particular program 
grant or loan has been made or an application for a certain type of 
assistance for a specific or indefinite period has been approved, no 
funds due and payable pursuant to that grant, loan, or application, may 
normally be deferred or withheld without first completing the procedures 
prescribed in section 602.
    Accordingly, where the assurance, statement of compliance, or plan 
required by agency regulations has not been filed or where, in the 
judgment of the head of the agency in question, the filed assurance 
fails on its face to satisfy the regulations, or there is reasonable 
cause to believe it untrue or not being honored, the agency head should, 
if efforts to secure voluntary compliance are unsuccessful, promptly 
institute a hearing to determine whether an adequate assurance has in 
fact been filed, or whether, in fact, there is noncompliance, as the 
case may be. There should ordinarily be no deferral of action on the 
submission or withholding of funds in this class of cases, although the 
limitation of the payout of funds to short periods may appropriately be 
ordered. If noncompliance is found, and if administrative alternatives 
are ineffective or inappropriate and court enforcement is not feasible, 
section 602 procedures may be completed and assistance terminated.

                         c. short-term programs

    Special procedures may sometimes be required where there is 
noncompliance with title VI regulations in connection with a program of 
such short total duration that all assistance funds will have to be paid 
out before the agency's usual administrative procedures can be completed 
and where deferral in accordance with these guidelines would be 
tantamount to a final refusal to grant assistance.
    In such a case, the agency head may, although otherwise following 
these guidelines,

[[Page 38]]

suspend normal agency procedures and institute expedited administrative 
proceedings to determine whether the regulations have been violated. He 
should simultaneously refer the matter to the Department of Justice for 
consideration of possible court enforcement, including interim 
injunctive relief. Deferral of action on an application is appropriate, 
in accordance with these guidelines, for a reasonable period of time, 
provided such action is consistent with achievement of the objectives of 
the statute authorizing the financial assistance in connection with the 
action taken. As in other cases, where noncompliance is found in the 
hearing proceeding, and if administrative alternatives are ineffective 
or inappropriate and court enforcement is not feasible, section 602 
procedures may be completed and assistance finally refused.

                 III. Procedures in Cases of Subgrantees

    In situations in which applications for Federal assistance are 
approved by some agency other than the Federal granting agency, the same 
rules and procedures would apply. Thus, the Federal Agency should 
instruct the approving agency--typically a State agency--to defer 
approval or refuse to grant funds, in individual cases in which such 
action would be taken by the original granting agency itself under the 
above procedures. Provision should be made for appropriate notice of 
such action to the Federal agency which retains responsibility for 
compliance with section 602 procedures.

                      IV. Exceptional Circumstances

    The Attorney General should be consulted in individual cases in 
which the head of an agency believes that the objectives of title VI 
will be best achieved by proceeding other than as provided in these 
guidelines.

                             V. Coordination

    While primary responsibility for enforcement of title VI rests 
directly with the head of each agency, in order to assure coordination 
of title VI enforcement and consistency among agencies, the Department 
of Justice should be notified in advance of applications on which action 
is to be deferred, hearings to be scheduled, and refusals and 
terminations of assistance or other enforcement actions or procedures to 
be undertaken. The Department also should be kept advised of the 
progress and results of hearings and other enforcement actions.

[31 FR 5292, Apr. 2, 1966]



Sec. 50.5  Notification of Consular Officers upon the arrest of foreign nationals.

    (a) This statement is designed to establish a uniform procedure for 
consular notification where nationals of foreign countries are arrested 
by officers of this Department on charges of criminal violations. It 
conforms to practice under international law and in particular 
implements obligations undertaken by the United States pursuant to 
treaties with respect to the arrest and detention of foreign nationals. 
Some of the treaties obligate the United States to notify the consular 
officer only upon the demand or request of the arrested foreign 
national. On the other hand, some of the treaties require notifying the 
consul of the arrest of a foreign national whether or not the arrested 
person requests such notification.
    (1) In every case in which a foreign national is arrested the 
arresting officer shall inform the foreign national that his consul will 
be advised of his arrest unless he does not wish such notification to be 
given. If the foreign national does not wish to have his consul 
notified, the arresting officer shall also inform him that in the event 
there is a treaty in force between the United States and his country 
which requires such notification, his consul must be notified regardless 
of his wishes and, if such is the case, he will be advised of such 
notification by the U.S. Attorney.
    (2) In all cases (including those where the foreign national has 
stated that he does not wish his consul to be notified) the local office 
of the Federal Bureau of Investigation or the local Marshal's office, as 
the case may be, shall inform the nearest U.S. Attorney of the arrest 
and of the arrested person's wishes regarding consular notification.
    (3) The U.S. Attorney shall then notify the appropriate consul 
except where he has been informed that the foreign national does not 
desire such notification to be made. However, if there is a treaty 
provision in effect which requires notification of consul, without 
reference to a demand or request of the arrested national, the consul 
shall be notified even if the arrested person has asked that he not be 
notified. In such case, the U.S. Attorney shall advise the foreign 
national that his consul has been notified and inform him that 
notification was necessary because of the treaty obligation.

[[Page 39]]

    (b) The procedure prescribed by this statement shall not apply to 
cases involving arrests made by the Immigration and Naturalization 
Service in administrative expulsion or exclusion proceedings, since that 
Service has heretofore established procedures for the direct 
notification of the appropriate consular officer upon such arrest. With 
respect to arrests made by the Service for violations of the criminal 
provisions of the immigration laws, the U.S. Marshal, upon delivery of 
the foreign national into his custody, shall be responsible for 
informing the U.S. Attorney of the arrest in accordance with numbered 
paragraph 2 of this statement.

[Order No. 375-67, 32 FR 1040, Jan. 28, 1967]



Sec. 50.6  Antitrust Division business review procedure.

    Although the Department of Justice is not authorized to give 
advisory opinions to private parties, for several decades the Antitrust 
Division has been willing in certain circumstances to review proposed 
business conduct and state its enforcement intentions. This originated 
with a ``railroad release'' procedure under which the Division would 
forego the initiation of criminal antitrust proceedings. The procedure 
was subsequently expanded to encompass a ``merger clearance'' procedure 
under which the Division would state its present enforcement intention 
with respect to a merger or acquisition; and the Department issued a 
written statement entitled ``Business Review Procedure.'' That statement 
has been revised several times.

    1. A request for a business review letter must be submitted in 
writing to the Assistant Attorney General, Antitrust Division, 
Department of Justice, Washington, DC 20530.
    2. The Division will consider only requests with respect to proposed 
business conduct, which may involve either domestic or foreign commerce.
    3. The Division may, in its discretion, refuse to consider a 
request.
    4. A business review letter shall have no application to any party 
which does not join in the request therefor.
    5. The requesting parties are under an affirmative obligation to 
make full and true disclosure with respect to the business conduct for 
which review is requested. Each request must be accompanied by all 
relevant data including background information, complete copies of all 
operative documents and detailed statements of all collateral oral 
understandings, if any. All parties requesting the review letter must 
provide the Division with whatever additional information or documents 
the Division may thereafter request in order to review the matter. Such 
additional information, if furnished orally, shall be promptly confirmed 
in writing. In connection with any request for review the Division will 
also conduct whatever independent investigation it believes is 
appropriate.
    6. No oral clearance, release or other statement purporting to bind 
the enforcement discretion of the Division may be given. The requesting 
party may rely upon only a written business review letter signed by the 
Assistant Attorney General in charge of the Antitrust Division or his 
delegate.
    7. (a) If the business conduct for which review is requested is 
subject to approval by a regulatory agency, a review request may be 
considered before agency approval has been obtained only where it 
appears that exceptional and unnecessary burdens might otherwise be 
imposed on the party or parties requesting review, or where the agency 
specifically requests that a party or parties request review. However, 
any business review letter issued in these as in any other circumstances 
will state only the Department's present enforcement intentions under 
the antitrust laws. It shall in no way be taken to indicate the 
Department's views on the legal or factual issues that may be raised 
before the regulatory agency, or in an appeal from the regulatory 
agency's decision. In particular, the issuance of such a letter is not 
to be represented to mean that the Division believes that there are no 
anticompetitive consequences warranting agency consideration.
    (b) The submission of a request for a business review, or its 
pendency, shall in no way alter any responsibility of any party to 
comply with the Premerger Notification provisions of the Antitrust 
Improvements Act of 1976, 15 U.S.C. 18A, and the regulations promulgated 
thereunder, 16 CFR, part 801.
    8. After review of a request submitted hereunder the Division may: 
state its present enforcement intention with respect to the proposed 
business conduct; decline to pass on the request; or take such other 
position or action as it considers appropriate.
    9. A business review letter states only the enforcement intention of 
the Division as of the date of the letter, and the Division remains 
completely free to bring whatever action or proceeding it subsequently 
comes to believe is required by the public interest. As to a stated 
present intention not to bring an action, however, the Division has 
never exercised its right to bring a criminal action

[[Page 40]]

where there has been full and true disclosure at the time of presenting 
the request.
    10. (a) Simultaneously upon notifying the requesting party of and 
Division action described in paragraph 8, the business review request, 
and the Division's letter in response shall be indexed and placed in a 
file available to the public upon request.
    (b) On that date or within thirty days after the date upon which the 
Division takes any action as described in paragraph 8, the information 
supplied to support the business review request and any other 
information supplied by the requesting party in connection with the 
transaction that is the subject of the business review request, shall be 
indexed and placed in a file with the request and the Division's letter, 
available to the public upon request. This file shall remain open for 
one year, after which time it shall be closed and the documents either 
returned to the requesting party or otherwise disposed of, at the 
discretion of the Antitrust Division.
    (c) Prior to the time the information described in subparagraphs (a) 
and (b) is indexed and made publicly available in accordance with the 
terms of that subparagraph, the requesting party may ask the Division to 
delay making public some or all of such information. However the 
requesting party must: (1) Specify precisely the documents or parts 
thereof that he asks not be made public; (2) state the minimum period of 
time during which nondisclosure is considered necessary; and (3) justify 
the request for non-disclosure, both as to content and time, by showing 
good cause therefor, including a showing that disclosure would have a 
detrimental effect upon the requesting party's operations or 
relationships with actual or potential customers, employees, suppliers 
(including suppliers of credit), stockholders, or competitors. The 
Department of Justice, in its discretion, shall make the final 
determination as to whether good cause for non-disclosure has been 
shown.
    (d) Nothing contained in subparagraphs (a), (b) and (c) shall limit 
the Division's right, in its discretion, to issue a press release 
describing generally the identity of the requesting party or parties and 
the nature of action taken by the Division upon the request.
    (e) This paragraph reflects a policy determination by the Justice 
Department and is subject to any limitations on public disclosure 
arising from statutory restrictions, Executive Order, or the national 
interest.
    11. Any requesting party may withdraw a request for review at any 
time. The Division remains free, however, to submit such comments to 
such requesting party as it deems appropriate. Failure to take action 
after receipt of documents or information whether submitted pursuant to 
this procedure or otherwise, does not in any way limit or stop the 
Division from taking such action at such time thereafter as it deems 
appropriate. The Division reserves the right to retain documents 
submitted to it under this procedure or otherwise and to use them for 
all governmental purposes.

[42 FR 11831, Mar. 1, 1977]



Sec. 50.7  Consent judgments in actions to enjoin discharges of pollutants.

    (a) It is hereby established as the policy of the Department of 
Justice to consent to a proposed judgment in an action to enjoin 
discharges of pollutants into the environment only after or on condition 
that an opportunity is afforded persons (natural or corporate) who are 
not named as parties to the action to comment on the proposed judgment 
prior to its entry by the court.
    (b) To effectuate this policy, each proposed judgment which is 
within the scope of paragraph (a) of this section shall be lodged with 
the court as early as feasible but at least 30 days before the judgment 
is entered by the court. Prior to entry of the judgment, or some earlier 
specified date, the Department of Justice will receive and consider, and 
file with the court, any written comments, views or allegations relating 
to the proposed judgment. The Department shall reserve the right (1) to 
withdraw or withhold its consent to the proposed judgment if the 
comments, views and allegations concerning the judgment disclose facts 
or considerations which indicate that the proposed judgment is 
inappropriate, improper or inadequate and (2) to oppose an attempt by 
any person to intervene in the action.
    (c) The Assistant Attorney General in charge of the Land and Natural 
Resources Division may establish procedures for implementing this 
policy. Where it is clear that the public interest in the policy hereby 
established is not compromised, the Assistant Attorney General may 
permit an exception to this policy in a specific case where 
extraordinary circumstances require a period shorter than 30 days or a 
procedure other than stated herein.

[Order No. 529-73, 38 FR 19029, July 17, 1973]

[[Page 41]]



Sec. 50.8  [Reserved]



Sec. 50.9  Policy with regard to open judicial proceedings.

    Because of the vital public interest in open judicial proceedings, 
the Government has a general overriding affirmative duty to oppose their 
closure. There is, moreover, a strong presumption against closing 
proceedings or portions thereof, and the Department of Justice foresees 
very few cases in which closure would be warranted. The Government 
should take a position on any motion to close a judicial proceeding, and 
should ordinarily oppose closure; it should move for or consent to 
closed proceedings only when closure is plainly essential to the 
interests of justice. In furtherance of the Department's concern for the 
right of the public to attend judicial proceedings and the Department's 
obligation to the fair administration of justice, the following 
guidelines shall be adhered to by all attorneys for the United States.
    (a) These guidelines apply to all federal trials, pre- and post-
trial evidentiary proceedings, arraignments, bond hearings, plea 
proceedings, sentencing proceedings, or portions thereof, except as 
indicated in paragraph (e) of this section.
    (b) A Government attorney has a compelling duty to protect the 
societal interest in open proceedings.
    (c) A Government attorney shall not move for or consent to closure 
of a proceeding covered by these guidelines unless:
    (1) No reasonable alternative exists for protecting the interests at 
stake;
    (2) Closure is clearly likely to prevent the harm sought to be 
avoided;
    (3) The degree of closure is minimized to the greatest extent 
possible;
    (4) The public is given adequate notice of the proposed closure; 
and, in addition, the motion for closure is made on the record, except 
where the disclosure of the details of the motion papers would clearly 
defeat the reason for closure specified under paragraph (c)(6) of this 
section;
    (5) Transcripts of the closed proceedings will be unsealed as soon 
as the interests requiring closure no longer obtain; and
    (6) Failure to close the proceedings will produce;
    (i) A substantial likelihood of denial of the right of any person to 
a fair trial; or
    (ii) A substantial likelihood of imminent danger to the safety of 
parties, witnesses, or other persons; or
    (iii) A substantial likelihood that ongoing investigations will be 
seriously jeopardized.
    (d) A government attorney shall not move for or consent to the 
closure of any proceeding, civil or criminal, except with the express 
authorization of:
    (1) The Deputy Attorney General, or,
    (2) The Associate Attorney General, if the Division seeking 
authorization is under the supervision of the Associate Attorney 
General.
    (e) These guidelines do not apply to:
    (1) The closure of part of a judicial proceeding where necessary to 
protect national security information or classified documents; or
    (2) In camera inspection, consideration or sealing of documents, 
including documents provided to the Government under a promise of 
confidentiality, where permitted by statute, rule of evidence or 
privilege; or
    (3) Grand jury proceedings or proceedings ancillary thereto; or
    (4) Conferences traditionally held at the bench or in chambers 
during the course of an open proceeding; or
    (5) The closure of judicial proceedings pursuant to 18 U.S.C. 3509 
(d) and (e) for the protection of child victims or child witnesses.
    (f) Because of the vital public interest in open judicial 
proceedings, the records of any proceeding closed pursuant to this 
section, and still sealed 60 days after termination of the proceeding, 
shall be reviewed to determine if the reasons for closure are still 
applicable. If they are not, an appropriate motion will be made to have 
the records unsealed. If the reasons for closure are still applicable 
after 60 days, this review is to be repeated every 60 days until such 
time as the records are unsealed. Compliance with this section will be 
monitored by the Criminal Division.
    (g) The principles set forth in this section are intended to provide 
guidance to attorneys for the Government

[[Page 42]]

and are not intended to create or recognize any legally enforceable 
right in any person.

[Order No. 914-80, 45 FR 69214, Oct. 20, 1980, as amended by Order No. 
1031-83, 48 FR 49509, Oct. 26, 1983; Order No. 1115-85, 50 FR 51677, 
Dec. 19, 1985; Order No. 1507-91, 56 FR 32327, July 16, 1991]



Sec. 50.10  Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and 
          the interrogation, indictment, or arrest of, members of the 
          news media.

    Because freedom of the press can be no broader than the freedom of 
reporters to investigate and report the news, the prosecutorial power of 
the government should not be used in such a way that it impairs a 
reporter's responsibility to cover as broadly as possible controversial 
public issues. This policy statement is thus intended to provide 
protection for the news media from forms of compulsory process, whether 
civil or criminal, which might impair the news gathering function. In 
balancing the concern that the Department of Justice has for the work of 
the news media and the Department's obligation to the fair 
administration of justice, the following guidelines shall be adhered to 
by all members of the Department in all cases:
    (a) In determining whether to request issuance of a subpoena to a 
member of the news media, or for telephone toll records of any member of 
the news media, the approach in every case must be to strike the proper 
balance between the public's interest in the free dissemination of ideas 
and information and the public's interest in effective law enforcement 
and the fair administration of justice.
    (b) All reasonable attempts should be made to obtain information 
from alternative sources before considering issuing a subpoena to a 
member of the news media, and similarly all reasonable alternative 
investigative steps should be taken before considering issuing a 
subpoena for telephone toll records of any member of the news media.
    (c) Negotiations with the media shall be pursued in all cases in 
which a subpoena to a member of the news media is contemplated. These 
negotiations should attempt to accommodate the interests of the trial or 
grand jury with the interests of the media. Where the nature of the 
investigation permits, the government should make clear what its needs 
are in a particular case as well as its willingness to respond to 
particular problems of the media.
    (d) Negotiations with the affected member of the news media shall be 
pursued in all cases in which a subpoena for the telephone toll records 
of any member of the news media is contemplated where the responsible 
Assistant Attorney General determines that such negotiations would not 
pose a substantial threat to the integrity of the investigation in 
connection with which the records are sought. Such determination shall 
be reviewed by the Attorney General when considering a subpoena 
authorized under paragraph (e) of this section.
    (e) No subpoena may be issued to any member of the news media or for 
the telephone toll records of any member of the news media without the 
express authorization of the Attorney General: Provided, That, if a 
member of the news media with whom negotiations are conducted under 
paragraph (c) of this section expressly agrees to provide the material 
sought, and if that material has already been published or broadcast, 
the United States Attorney or the responsible Assistant Attorney 
General, after having been personally satisfied that the requirements of 
this section have been met, may authorize issuance of the subpoena and 
shall thereafter submit to the Office of Public Affairs a report 
detailing the circumstances surrounding the issuance of the subpoena.
    (f) In requesting the Attorney General's authorization for a 
subpoena to a member of the news media, the following principles will 
apply:
    (1) In criminal cases, there should be reasonable grounds to 
believe, based on information obtained from nonmedia sources, that a 
crime has occurred, and

[[Page 43]]

that the information sought is essential to a successful investigation--
particularly with reference to directly establishing guilt or innocence. 
The subpoena should not be used to obtain peripheral, nonessential, or 
speculative information.
    (2) In civil cases there should be reasonable grounds, based on 
nonmedia sources, to believe that the information sought is essential to 
the successful completion of the litigation in a case of substantial 
inportance. The subpoena should not be used to obtain peripheral, 
nonessential, or speculative information.
    (3) The government should have unsuccessfully attempted to obtain 
the information from alternative nonmedia sources.
    (4) The use of subpoenas to members of the news media should, except 
under exigent circumstances, be limited to the verification of published 
information and to such surrounding circumstances as relate to the 
accuracy of the published information.
    (5) Even subpoena authorization requests for publicly disclosed 
information should be treated with care to avoid claims of harassment.
    (6) Subpoenas should, wherever possible, be directed at material 
information regarding a limited subject matter, should cover a 
reasonably limited period of time, and should avoid requiring production 
of a large volume of unpublished material. They should give reasonable 
and timely notice of the demand for documents.
    (g) In requesting the Attorney General's authorization for a 
subpoena for the telephone toll records of members of the news media, 
the following principles will apply:
    (1) There should be reasonable ground to believe that a crime has 
been committed and that the information sought is essential to the 
successful investigation of that crime. The subpoena should be as 
narrowly drawn as possible; it should be directed at relevant 
information regarding a limited subject matter and should cover a 
reasonably limited time period. In addition, prior to seeking the 
Attorney General's authorization, the government should have pursued all 
reasonable alternative investigation steps as required by paragraph (b) 
of this section.
    (2) When there have been negotiations with a member of the news 
media whose telephone toll records are to be subpoenaed, the member 
shall be given reasonable and timely notice of the determination of the 
Attorney General to authorize the subpoena and that the government 
intends to issue it.
    (3) When the telephone toll records of a member of the news media 
have been subpoenaed without the notice provided for in paragraph (e)(2) 
of this section, notification of the subpoena shall be given the member 
of the news media as soon thereafter as it is determined that such 
notification will no longer pose a clear and substantial threat to the 
integrity of the investigation. In any event, such notification shall 
occur within 45 days of any return made pursuant to the subpoena, except 
that the responsible Assistant Attorney General may authorize delay of 
notification for no more than an additional 45 days.
    (4) Any information obtained as a result of a subpoena issued for 
telephone toll records shall be closely held so as to prevent disclosure 
of the information to unauthorized persons or for improper purposes.
    (h) No member of the Department shall subject a member of the news 
media to questioning as to any offense which he is suspected of having 
committed in the course of, or arising out of, the coverage or 
investigation of a news story, or while engaged in the performance of 
his official duties as a member of the news media, without the express 
authority of the Attorney General: Provided, however, That where exigent 
circumstances preclude prior approval, the requirements of paragraph (l) 
of this section shall be observed.
    (i) A member of the Department shall secure the express authority of 
the Attorney General before a warrant for an arrest is sought, and 
whenever possible before an arrest not requiring a warrant, of a member 
of the news media for any offense which he is suspected of having 
committed in the course of, or arising out of, the coverage or 
investigation of a news story, or while engaged in the performance of 
his official duties as a member of the news media.

[[Page 44]]

    (j) No member of the Department shall present information to a grand 
jury seeking a bill of indictment, or file an information, against a 
member of the news media for any offense which he is suspected of having 
committed in the course of, or arising out of, the coverage or 
investigation of a news story, or while engaged in the performance of 
his official duties as a member of the news media, without the express 
authority of the Attorney General.
    (k) In requesting the Attorney General's authorization to question, 
to arrest or to seek an arrest warrant for, or to present information to 
a grand jury seeking a bill of indictment or to file an information 
against, a member of the news media for an offense which he is suspected 
of having committed during the course of, or arising out of, the 
coverage or investigation of a news story, or committed while engaged in 
the performance of his official duties as a member of the news media, a 
member of the Department shall state all facts necessary for 
determination of the issues by the Attorney General. A copy of the 
request shall be sent to the Director of Public Affairs.
    (l) When an arrest or questioning of a member of the news media is 
necessary before prior authorization of the Attorney General can be 
obtained, notification of the arrest or questioning, the circumstances 
demonstrating that an exception to the requirement of prior 
authorization existed, and a statement containing the information that 
would have been given in requesting prior authorization, shall be 
communicated immediately to the Attorney General and to the Director of 
Public Affairs.
    (m) In light of the intent of this section to protect freedom of the 
press, news gathering functions, and news media sources, this policy 
statement does not apply to demands for purely commercial or financial 
information unrelated to the news gathering function.
    (n) Failure to obtain the prior approval of the Attorney General may 
constitute grounds for an administrative reprimand or other appropriate 
disciplinary action. The principles set forth in this section are not 
intended to create or recognize any legally enforceable right in any 
person.

[Order No. 916-80, 45 FR 76436, Nov. 19, 1980]



Sec. 50.12  Exchange of FBI identification records.

    (a) The Federal Bureau of Investigation, hereinafter referred to as 
the FBI, is authorized to expend funds for the exchange 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 
Director of the FBI, acting on behalf of the Attorney General, with 
officials of state and local governments for purposes of employment and 
licensing, pursuant to section 201 of Public Law 92-544, 86 Stat. 1115. 
Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42 U.S.C. 
2169, respectively, such records can be exchanged with certain segments 
of the securities industry, with registered futures associations, and 
with nuclear power plants. The records also may be exchanged in other 
instances as authorized by federal law.
    (b) The FBI Director is authorized by 28 CFR 0.85(j) to approve 
procedures relating to the exchange of identification records. Under 
this authority, effective September 6, 1990, the FBI Criminal Justice 
Information Services (CJIS) Division has made all data on identification 
records available for such purposes. Records obtained under this 
authority may be used solely for the purpose requested and cannot be 
disseminated outside the receiving departments, related agencies, or 
other authorized entities. Officials at the governmental institutions 
and other entities authorized to submit fingerprints and receive FBI 
identification records under this authority must notify the individuals 
fingerprinted that the fingerprints will be used to check the criminal 
history records of the FBI. The officials making the determination of 
suitability for licensing or employment shall provide the applicants the 
opportunity to complete, or challenge the accuracy of, the information 
contained in the FBI identification record. These officials also must 
advise the applicants that procedures for obtaining a change, 
correction, or updating of an

[[Page 45]]

FBI identification record are set forth in 28 CFR 16.34. Officials 
making such determinations should not deny the license or employment 
based on information in the record until the applicant has been afforded 
a reasonable time to correct or complete the record, or has declined to 
do so. A statement incorporating these use-and-challenge requirements 
will be placed on all records disseminated under this program. This 
policy is intended to ensure that all relevant criminal record 
information is made available to provide for the public safety and, 
further, to protect the interests of the prospective employee/licensee 
who may be affected by the information or lack of information in an 
identification record.

[Order No. 2258-99, 64 FR 52229, Sept. 28, 1999]



Sec. 50.14  Guidelines on employee selection procedures.

    The guidelines set forth below are intended as a statement of policy 
of the Department of Justice and will be applied by the Department in 
exercising its responsibilities under Federal law relating to equal 
employment opportunity.

       Uniform Guidelines on Employee Selection Procedures (1978)

    Note: These guidelines are issued jointly by four agencies. Separate 
official adoptions follow the guidelines in this part IV as follows: 
Civil Service Commission, Department of Justice, Equal Employment 
Opportunity Commission, Department of Labor.
    For official citation see section 18 of these guidelines.

                            Table of Contents

                           general principles

1. Statement of Purpose
A. Need for Uniformity--Issuing Agencies
B. Purpose of Guidelines
C. Relation to Prior Guidelines
2. Scope
A. Application of Guidelines
B. Employment Decisions
C. Selection Procedures
D. Limitations
E. Indian Preference Not Affected
3. Discrimination Defined: Relationship Between Use of Selection 
          Procedures and Discrimination
A. Procedure Having Adverse Impact Constitutes Discrimination Unless 
Justified
B. Consideration of Suitable Alternative Selection Procedures
4. Information on Impact
A. Records Concerning Impact
B. Applicable Race, Sex and Ethnic Groups For Record Keeping
C. Evaluation of Selection Rates. The ``Bottom Line''
D. Adverse Impact And The ``Four-Fifths Rule''
E. Consideration of User's Equal Employment Opportunity Posture
5. General Standards for Validity Studies
A. Acceptable types of Validity Studies
B. Criterion-Related, Content, and Construct Validity
C. Guidelines Are Consistent with Professional Standards
D. Need For Documentation of Validity
E. Accuracy and Standardization
F. Caution Against Selection on Basis of Knowledges, Skills or Abilities 
Learned in Brief Orientation Period
G. Method of Use of Selection Procedures
H. Cutoff Scores
I. Use of Selection Procedures for Higher Level Jobs
J. Interim Use of Selection Procedures
K. Review of Validity Studies for Currency
6. Use of Selection Procedures Which Have Not Been Validated
A. Use of Alternate Selection Procedures to Eliminate Adverse Impact
B. Where Validity Studies Cannot or Need Not Be Performed
(1) Where Informal or Unscored Procedures Are Used
(2) Where Formal And Scored Procedures Are Used
7. Use of Other Validity Studies
A. Validity Studies not Conducted by the User
B. Use of Criterion-Related Validity Evidence from Other Sources
(1) Validity Evidence
(2) Job Similarity
(3) Fairness Evidence
C. Validity Evidence from Multi-Unit Study
D. Other Significant Variables
8. Cooperative Studies
A. Encouragement of Cooperative Studies
B. Standards for Use of Cooperative Studies
9. No Assumption of Validity
A. Unacceptable Substitutes for Evidence of Validity
B. Encouragement of Professional Supervision
10. Employment Agencies and Employment Services
A. Where Selection Procedures Are Devised by Agency
B. Where Selection Procedures Are Devised Elsewhere
11. Disparate Treatment
12. Retesting of Applicants
13. Affirmative Action

[[Page 46]]

A. Affirmative Action Obligations
B. Encouragement of Voluntary Affirmative Action Programs

                           technical standards

14. Technical Standards for Validity Studies
A. Validity Studies Should be Based on Review of Information about the 
Job
B. Technical Standards for Criterion-Related Validity Studies
(1) Technical Feasibility
(2) Analysis of the Job
(3) Criterion Measures
(4) Representativeness of the Sample
(5) Statistical Relationships
(6) Operational Use of Selection Procedures
(7) Over-Statement of Validity Findings
(8) Fairness
(a) Unfairness Defined
(b) Investigation of Fairness
(c) General Considerations in Fairness Investigations
(d) When Unfairness Is Shown
(e) Technical Feasibility of Fairness Studies
(f) Continued Use of Selection Procedures When Fairness Studies not 
Feasible
C. Technical Standards for Content Validity Studies
(1) Appropriateness of Content Validity Studies
(2) Job Analysis for Content Validity
(3) Development of Selection Procedure
(4) Standards For Demonstrating Content Validity
(5) Reliability
(6) Prior Training or Experience
(7) Training Success
(8) Operational Use
(9) Ranking Based on Content Validity Studies
D. Technical Standards For Construct Validity Studies
(1) Appropriateness of Construct Validity Studies
(2) Job Analysis For Construct Validity Studies
(3) Relationship to the Job
(4) Use of Construct Validity Study Without New Criterion-Related 
Evidence
(a) Standards for Use
(b) Determination of Common Work Behaviors

              documentation of impact and validity evidence

15. Documentation of Impact and Validity Evidence
A. Required Information
(1) Simplified Recordkeeping for Users With Less Than 100 Employees
(2) Information on Impact
(a) Collection of Information on Impact
(b) When Adverse Impact Has Been Eliminated in The Total Selection 
Process
(c) When Data Insufficient to Determine Impact
(3) Documentation of Validity Evidence
(a) Type of Evidence
(b) Form of Report
(c) Completeness
B. Criterion-Related Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Job Analysis or Review of Job Information
(4) Job Titles and Codes
(5) Criterion Measures
(6) Sample Description
(7) Description of Selection Procedure
(8) Techniques and Results
(9) Alternative Procedures Investigated
(10) Uses and Applications
(11) Source Data
(12) Contact Person
(13) Accuracy and Completeness
C. Content Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Job Analysis--Content of the Job
(4) Selection Procedure and its Content
(5) Relationship Between Selection Procedure and the Job
(6) Alternative Procedures Investigated
(7) Uses and Applications
(8) Contact Person
(9) Accuracy and Completeness
D. Construct Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Construct Definition
(4) Job Analysis
(5) Job Titles and Codes
(6) Selection Procedure
(7) Relationship to Job Performance
(8) Alternative Procedures Investigated
(9) Uses and Applications
(10) Accuracy and Completeness
(11) Source Data
(12) Contact Person
E. Evidence of Validity from Other Studies
(1) Evidence from Criterion-Related Validity Studies
(a) Job Information
(b) Relevance of Criteria
(c) Other Variables
(d) Use of the Selection Procedure
(e) Bibliography
(2) Evidence from Content Validity Studies
(3) Evidence from Construct Validity Studies
F. Evidence of Validity from Cooperative Studies
G. Selection for Higher Level Jobs
H. Interim Use of Selection Procedures

[[Page 47]]

                               definitions

16. Definitions

                                appendix

17. Policy Statement on Affirmative Action (see Section 13B)
18. Citations

                           General Principles

    Section 1. Statement of purpose-- A. Need for uniformity--Issuing 
agencies. The Federal government's need for a uniform set of principles 
on the question of the use of tests and other selection procedures has 
long been recognized. The Equal Employment Opportunity Commission, the 
Civil Service Commission, the Department of Labor, and the Department of 
Justice jointly have adopted these uniform guidelines to meet that need, 
and to apply the same principles to the Federal Government as are 
applied to other employers.
    B. Purpose of guidelines. These guidelines incorporate a single set 
of principles which are designed to assist employers, labor 
organizations, employment agencies, and licensing and certification 
boards to comply with requirements of Federal law prohibiting employment 
practices which discriminate on grounds of race, color, religion, sex, 
and national origin. They are designed to provide a framework for 
determining the proper use of tests and other selection procedures. 
These guidelines do not require a user to conduct validity studies of 
selection procedures where no adverse impact results. However, all users 
are encouraged to use selection procedures which are valid, especially 
users operating under merit principles.
    C. Relation to prior guidelines. These guidelines are based upon and 
supersede previously issued guidelines on employee selection procedures. 
These guidelines have been built upon court decisions, the previously 
issued guidelines of the agencies, and the practical experience of the 
agencies, as well as the standards of the psychological profession. 
These guidelines are intended to be consistent with existing law.
    Sec. 2. Scope-- A. Application of guidelines. These guidelines will 
be applied by the Equal Employment Opportunity Commission in the 
enforcement of title VII of the Civil Rights Act of 1964, as amended by 
the Equal Employment Opportunity Act of 1972 (hereinafter ``Title 
VII''); by the Department of Labor, and the contract compliance agencies 
until the transfer of authority contemplated by the President's 
Reorganization Plan No. 1 of 1978, in the administration and enforcement 
of Executive Order 11246, as amended by Executive Order 11375 
(hereinafter ``Executive Order 11246''); by the Civil Service Commission 
and other Federal agencies subject to section 717 of title VII; by the 
Civil Service Commission in exercising its responsibilities toward State 
and local governments under section 208(b)(1) of the Intergovernmental-
Personnel Act; by the Department of Justice in exercising its 
responsibilities under Federal law; by the Office of Revenue Sharing of 
the Department of the Treasury under the State and Local Fiscal 
Assistance Act of 1972, as amended; and by any other Federal agency 
which adopts them.
    B. Employment decisions. These guidelines apply to tests and other 
selection procedures which are used as a basis for any employment 
decision. Employment decisions include but are not limited to hiring, 
promotion, demotion, membership (for example, in a labor organization), 
referral, retention, and licensing and certification, to the extent that 
licensing and certification may be covered by Federal equal employment 
opportunity law. Other selection decisions, such as selection for 
training or transfer, may also be considered employment decisions if 
they lead to any of the decisions listed above.
    C. Selection procedures. These guidelines apply only to selection 
procedures which are used as a basis for making employment decisions. 
For example, the use of recruiting procedures designed to attract 
members of a particular race, sex, or ethnic group, which were 
previously denied employment opportunities or which are currently 
underutilized, may be necessary to bring an employer into compliance 
with Federal law, and is frequently an essential element of any 
effective affirmative action program; but recruitment practices are not 
considered by these guidelines to be selection procedures. Similarly, 
these guidelines do not pertain to the question of the lawfulness of a 
seniority system within the meaning of section 703(h), Executive Order 
11246 or other provisions of Federal law or regulation, except to the 
extent that such systems utilize selection procedures to determine 
qualifications or abilities to perform the job. Nothing in these 
guidelines is intended or should be interpreted as discouraging the use 
of a selection procedure for the purpose of determining qualifications 
or for the purpose of selection on the basis of relative qualifications, 
if the selection procedure had been validated in accord with these 
guidelines for each such purpose for which it is to be used.
    D. Limitations. These guidelines apply only to persons subject to 
title VII, Executive Order 11246, or other equal employment opportunity 
requirements of Federal law. These guidelines do not apply to 
responsibilities under the Age Discrimination in Employment Act of 1967, 
as amended, not to discriminate on the basis of age, or under sections 
501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate 
on the basis of handicap.

[[Page 48]]

    E. Indian preference not affected. These guidelines do not restrict 
any obligation imposed or right granted by Federal law to users to 
extend a preference in employment to Indians living on or near an Indian 
reservation in connection with employment opportunities on or near an 
Indian reservation.
    Sec. 3. Discrimination defined: Relationship between use of 
selection procedures and discrimination-- A. Procedure having adverse 
impact constitutes discrimination unless justified. The use of any 
selection procedure which has an adverse impact on the hiring, 
promotion, or other employment or membership opportunities of members of 
any race, sex, or ethnic group will be considered to be discriminatory 
and inconsistent with these guidelines, unless the procedure has been 
validated in accordance with these guidelines, or the provisions of 
section 6 below are satisfied.
    B. Consideration of suitable alternative selection procedures. Where 
two or more selection procedures are available which serve the user's 
legitimate interest in efficient and trustworthy workmanship, and which 
are substantially equally valid for a given purpose, the user should use 
the procedure which has been demonstrated to have the lesser adverse 
impact. Accordingly, whenever a validity study is called for by these 
guidelines, the user should include, as a part of the validity study, an 
investigation of suitable alternative selection procedures and suitable 
alternative methods of using the selection procedure which have as 
little adverse impact as possible, to determine the appropriateness of 
using or validating them in accord with these guidelines. If a user has 
made a reasonable effort to become aware of such alternative procedures 
and validity has been demonstrated in accord with these guidelines, the 
use of the test or other selection procedure may continue until such 
time as it should reasonably be reviewed for currency. Whenever the user 
is shown an alternative selection procedure with evidence of less 
adverse impact and substantial evidence of validity for the same job in 
similar circumstances, the user should investigate it to determine the 
appropriateness of using or validating it in accord with these 
guidelines. This subsection is not intended to preclude the combination 
of procedures into a significantly more valid procedure, if the use of 
such a combination has been shown to be in compliance with the 
guidelines.
    Sec. 4. Information on impact-- A. Records concerning impact. Each 
user should maintain and have available for inspection records or other 
information which will disclose the impact which its tests and other 
selection procedures have upon employment opportunities of persons by 
identifiable race, sex, or ethnic group as set forth in paragraph B 
below in order to determine compliance with these guidelines. Where 
there are large numbers of applicants and procedures are administered 
frequently, such information may be retained on a sample basis, provided 
that the sample is appropriate in terms of the applicant population and 
adequate in size.
    B. Applicable race, sex, and ethnic groups for recordkeeping. The 
records called for by this section are to be maintained by sex, and the 
following races and ethnic groups: Blacks (Negroes), American Indians 
(including Alaskan Natives), Asians (including Pacific Islanders), 
Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or 
South American, or other Spanish origin or culture regardless of race), 
whites (Caucasians) other than Hispanic, and totals. The race, sex, and 
ethnic classifications called for by this section are consistent with 
the Equal Employment Opportunity Standard Form 100, Employer Information 
Report EEO-1 series of reports. The user should adopt safeguards to 
insure that the records required by this paragraph are used for 
appropriate purposes such as determining adverse impact, or (where 
required) for developing and monitoring affirmative action programs, and 
that such records are not used improperly. See sections 4E and 17(4), 
below.
    C. Evaluation of selection rates. The ``bottom line.'' If the 
information called for by sections 4A and B above shows that the total 
selection process for a job has an adverse impact, the individual 
components of the selection process should be evaluated for adverse 
impact. If this information shows that the total selection process does 
not have an adverse impact, the Federal enforcement agencies, in the 
exercise of their administrative and prosecutorial discretion, in usual 
circumstances, will not expect a user to evaluate the individual 
components for adverse impact, or to validate such individual 
components, and will not take enforcement action based upon adverse 
impact of any component of that process, including the separate parts of 
a multipart selection procedure or any separate procedure that is used 
as an alternative method of selection. However, in the following 
circumstances the Federal enforcement agencies will expect a user to 
evaluate the individual components for adverse impact and may, where 
appropriate, take enforcement action with respect to the individual 
components: (1) Where the selection procedure is a significant factor in 
the continuation of patterns of assignments of incumbent employees 
caused by prior discriminatory employment practices, (2) where the 
weight of court decisions or administrative interpretations hold that a 
specific procedure (such as height or weight requirements or no-arrest 
records) is not job related in the same or similar circumstances. In 
unusual circumstances, other than those listed in (1) and (2) above, the 
Federal enforcement agencies may request a user to evaluate the 
individual components for adverse impact

[[Page 49]]

and may, where appropriate, take enforcement action with respect to the 
individual component.
    D. Adverse impact and the ``four-fifths rule.'' A selection rate for 
any race, sex, or ethnic group which is less than four-fifths (\4/5\) 
(or eighty percent) of the rate for the group with the highest rate will 
generally be regarded by the Federal enforcement agencies as evidence of 
adverse impact, while a greater than four-fifths rate will generally not 
be regarded by Federal enforcement agencies as evidence of adverse 
impact. Smaller differences in selection rate may nevertheless 
constitute adverse impact, where they are significant in both 
statistical and practical terms or where a user's actions have 
discouraged applicants disproportionately on grounds of race, sex, or 
ethnic group. Greater differences in selection rate may not constitute 
adverse impact where the differences are based on small numbers and are 
not statistically significant, or where special recruiting or other 
programs cause the pool of minority or female candidates to be atypical 
of the normal pool of applicants from that group. Where the user's 
evidence concerning the impact of a selection procedure indicates 
adverse impact but is based upon numbers which are too small to be 
reliable, evidence concerning the impact of the procedure over a longer 
period of time and/or evidence concerning the impact which the selection 
procedure had when used in the same manner in similar circumstances 
elsewhere may be considered in determining adverse impact. Where the 
user has not maintained data on adverse impact as required by the 
documentation section of applicable guidelines, the Federal enforcement 
agencies may draw an inference of adverse impact of the selection 
process from the failure of the user to maintain such data, if the user 
has an underutilization of a group in the job category, as compared to 
the group's representation in the relevant labor market or, in the case 
of jobs filled from within, the applicable work force.
    E. Consideration of user's equal employment opportunity posture. In 
carrying out their obligations, the Federal enforcement agencies will 
consider the general posture of the user with respect to equal 
employment opportunity for the job or group of jobs in question. Where a 
user has adopted an affirmative action program, the Federal enforcement 
agencies will consider the provisions of that program, including the 
goals and timetables which the user has adopted and the progress which 
the user has made in carrying out that program and in meeting the goals 
and timetables. While such affirmative action programs may in design and 
execution be race, color, sex, or ethnic conscious, selection procedures 
under such programs should be based upon the ability or relative ability 
to do the work.
    Sec. 5. General standards for validity studies-- A. Acceptable types 
of validity studies. For the purposes of satisfying these guidelines, 
users may rely upon criterion-related validity studies, content validity 
studies or construct validity studies, in accordance with the standards 
set forth in the technical standards of these guidelines, section 14 
below. New strategies for showing the validity of selection procedures 
will be evaluated as they become accepted by the psychological 
profession.
    B. Criterion-related, content, and construct validity. Evidence of 
the validity of a test or other selection procedure by a criterion-
related validity study should consist of empirical data demonstrating 
that the selection procedure is predictive of or significantly 
correlated with important elements of job performance. See section 14B 
below. Evidence of the validity of a test or other selection procedure 
by a content validity study should consist of data showing that the 
content of the selection procedure is representative of important 
aspects of performance on the job for which the candidates are to be 
evaluated. See section 14C below. Evidence of the validity of a test or 
other selection procedure through a construct validity study should 
consist of data showing that the procedure measures the degree to which 
candidates have identifiable characteristics which have been determined 
to be important in successful performance in the job for which the 
candidates are to be evaluated. See section 14D below.
    C. Guidelines are consistent with professional standards. The 
provisions of these guidelines relating to validation of selection 
procedures are intended to be consistent with generally accepted 
professional standards for evaluating standardized tests and other 
selection procedures, such as those described in the Standards for 
Educational and Psychological Tests prepared by a joint committee of the 
American Psychological Association, the American Educational Research 
Association, and the National Council on Measurement in Education 
(American Psychological Association, Washington, DC, 1974) (hereinafter 
``A.P.A. Standards'') and standard textbooks and journals in the field 
of personnel selection.
    D. Need for documentation of validity. For any selection procedure 
which is part of a selection process which has an adverse impact and 
which selection procedure has an adverse impact, each user should 
maintain and have available such documentation as is described in 
section 15 below.
    E. Accuracy and standardization. Validity studies should be carried 
out under conditions which assure insofar as possible the adequacy and 
accuracy of the research and the report. Selection procedures should be 
administered and scored under standardized conditions.

[[Page 50]]

    F. Caution against selection on basis of knowledges, skills, or 
ability learned in brief orientation period. In general, users should 
avoid making employment decisions on the basis of measures of 
knowledges, skills, or abilities which are normally learned in a brief 
orientation period, and which have an adverse impact.
    G. Method of use of selection procedures. The evidence of both the 
validity and utility of a selection procedure should support the method 
the user chooses for operational use of the procedure, if that method of 
use has a greater adverse impact than another method of use. Evidence 
which may be sufficient to support the use of a selection procedure on a 
pass/fail (screening) basis may be insufficient to support the use of 
the same procedure on a ranking basis under these guidelines. Thus, if a 
user decides to use a selection procedure on a ranking basis, and that 
method of use has a greater adverse impact than use on an appropriate 
pass/fail basis (see section 5H below), the user should have sufficient 
evidence of validity and utility to support the use on a ranking basis. 
See sections 3B, 14B (5) and (6), and 14C (8) and (9).
    H. Cutoff scores. Where cutoff scores are used, they should normally 
be set so as to be reasonable and consistent with normal expectations of 
acceptable proficiency within the work force. Where applicants are 
ranked on the basis of properly validated selection procedures and those 
applicants scoring below a higher cutoff score than appropriate in light 
of such expectations have little or no chance of being selected for 
employment, the higher cutoff score may be appropriate, but the degree 
of adverse impact should be considered.
    I. Use of selection procedures for higher level jobs. If job 
progression structures are so established that employees will probably, 
within a reasonable period of time and in a majority of cases, progress 
to a higher level, it may be considered that the applicants are being 
evaluated for a job or jobs at the higher level. However, where job 
progression is not so nearly automatic, or the time span is such that 
higher level jobs or employees' potential may be expected to change in 
significant ways, it should be considered that applicants are being 
evaluated for a job at or near the entry level. A ``reasonable period of 
time'' will vary for different jobs and employment situations but will 
seldom be more than 5 years. Use of selection procedures to evaluate 
applicants for a higher level job would not be appropriate:
    (1) If the majority of those remaining employed do not progress to 
the higher level job;
    (2) If there is a reason to doubt that the higher level job will 
continue to require essentially similar skills during the progression 
period; or
    (3) If the selection procedures measure knowledges, skills, or 
abilities required for advancement which would be expected to develop 
principally from the training or experience on the job.
    J. Interim use of selection procedures. Users may continue the use 
of a selection procedure which is not at the moment fully supported by 
the required evidence of validity, provided: (1) The user has available 
substantial evidence of validity, and (2) the user has in progress, when 
technically feasible, a study which is designed to produce the 
additional evidence required by these guidelines within a reasonable 
time. If such a study is not technically feasible, see section 6B. If 
the study does not demonstrate validity, this provision of these 
guidelines for interim use shall not constitute a defense in any action, 
nor shall it relieve the user of any obligations arising under Federal 
law.
    K. Review of validity studies for currency. Whenever validity has 
been shown in accord with these guidelines for the use of a particular 
selection procedure for a job or group of jobs, additional studies need 
not be performed until such time as the validity study is subject to 
review as provided in section 3B above. There are no absolutes in the 
area of determining the currency of a validity study. All circumstances 
concerning the study, including the validation strategy used, and 
changes in the relevant labor market and the job should be considered in 
the determination of when a validity study is outdated.
    Sec. 6. Use of selection procedures which have not been validated-- 
A. Use of alternate selection procedures to eliminate adverse impact. A 
user may choose to utilize alternative selection procedures in order to 
eliminate adverse impact or as part of an affirmative action program. 
See section 13 below. Such alternative procedures should eliminate the 
adverse impact in the total selection process, should be lawful and 
should be as job related as possible.
    B. Where validity studies cannot or need not be performed. There are 
circumstances in which a user cannot or need not utilize the validation 
techniques contemplated by these guidelines. In such circumstances, the 
user should utilize selection procedures which are as job related as 
possible and which will minimize or eliminate adverse impact, as set 
forth below.
    (1) Where informal or unscored procedures are used. When an informal 
or unscored selection procedure which has an adverse impact is utilized, 
the user should eliminate the adverse impact, or modify the procedure to 
one which is a formal, scored or quantified measure or combination of 
measures and then validate the procedure in accord with these 
guidelines, or otherwise justify continued use of the procedure in 
accord with Federal law.

[[Page 51]]

    (2) Where formal and scored procedures are used. When a formal and 
scored selection procedure is used which has an adverse impact, the 
validation techniques contemplated by these guidelines usually should be 
followed if technically feasible. Where the user cannot or need not 
follow the validation techniques anticipated by these guidelines, the 
user should either modify the procedure to eliminate adverse impact or 
otherwise justify continued use of the procedure in accord with Federal 
law.
    Sec. 7. Use of other validity studies-- A. Validity studies not 
conducted by the user. Users may, under certain circumstances, support 
the use of selection procedures by validity studies conducted by other 
users or conducted by test publishers or distributors and described in 
test manuals. While publishers of selection procedures have a 
professional obligation to provide evidence of validity which meets 
generally accepted professional standards (see section 5C above), users 
are cautioned that they are responsible for compliance with these 
guidelines. Accordingly, users seeking to obtain selection procedures 
from publishers and distributors should be careful to determine that, in 
the event the user becomes subject to the validity requirements of these 
guidelines, the necessary information to support validity has been 
determined and will be made available to the user.
    B. Use of criterion-related validity evidence from other sources. 
Criterion-related validity studies conducted by one test user, or 
described in test manuals and the professional literature, will be 
considered acceptable for use by another user when the following 
requirements are met:
    (1) Validity evidence. Evidence from the available studies meeting 
the standards of section 14B below clearly demonstrates that the 
selection procedure is valid;
    (2) Job similarity. The incumbents in the user's job and the 
incumbents in the job or group of jobs on which the validity study was 
conducted perform substantially the same major work behaviors, as shown 
by appropriate job analyses both on the job or group of jobs on which 
the validity study was performed and on the job for which the selection 
procedure is to be used; and
    (3) Fairness evidence. The studies include a study of test fairness 
for each race, sex, and ethnic group which constitutes a significant 
factor in the borrowing user's relevant labor market for the job or jobs 
in question. If the studies under consideration satisfy (1) and (2) 
above but do not contain an investigation of test fairness, and it is 
not technically feasible for the borrowing user to conduct an internal 
study of test fairness, the borrowing user may utilize the study until 
studies conducted elsewhere meeting the requirements of these guidelines 
show test unfairness, or until such time as it becomes technically 
feasible to conduct an internal study of test fairness and the results 
of that study can be acted upon. Users obtaining selection procedures 
from publishers should consider, as one factor in the decision to 
purchase a particular selection procedure, the availability of evidence 
concerning test fairness.
    C. Validity evidence from multiunit study. if validity evidence from 
a study covering more than one unit within an organization statisfies 
the requirements of section 14B below, evidence of validity specific to 
each unit will not be required unless there are variables which are 
likely to affect validity significantly.
    D. Other significant variables. If there are variables in the other 
studies which are likely to affect validity significantly, the user may 
not rely upon such studies, but will be expected either to conduct an 
internal validity study or to comply with section 6 above.
    Sec. 8. Cooperative studies-- A. Encouragement of cooperative 
studies. The agencies issuing these guidelines encourage employers, 
labor organizations, and employment agencies to cooperate in research, 
development, search for lawful alternatives, and validity studies in 
order to achieve procedures which are consistent with these guidelines.
    B. Standards for use of cooperative studies. If validity evidence 
from a cooperative study satisfies the requirements of section 14 below, 
evidence of validity specific to each user will not be required unless 
there are variables in the user's situation which are likely to affect 
validity significantly.
    Sec. 9. No assumption of validity-- A. Unacceptable substitutes for 
evidence of validity. Under no circumstances will the general reputation 
of a test or other selection procedures, its author or its publisher, or 
casual reports of it's validity be accepted in lieu of evidence of 
validity. Specifically ruled out are: Assumptions of validity based on a 
procedure's name or descriptive labels; all forms of promotional 
literature; data bearing on the frequency of a procedure's usage; 
testimonial statements and credentials of sellers, users, or 
consultants; and other nonempirical or anecdotal accounts of selection 
practices or selection outcomes.
    B. Encouragement of professional supervision. Professional 
supervision of selection activities is encouraged but is not a 
substitute for documented evidence of validity. The enforcement agencies 
will take into account the fact that a thorough job analysis was 
conducted and that careful development and use of a selection procedure 
in accordance with professional standards enhance the probability that 
the selection procedure is valid for the job.
    Sec. 10. Employment agencies and employment services-- A. Where 
selection procedures are devised by agency. An employment agency, 
including private employment agencies and State employment agencies, 
which

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agrees to a request by an employer or labor organization to device and 
utilize a selection procedure should follow the standards in these 
guidelines for determining adverse impact. If adverse impact exists the 
agency should comply with these guidelines. An employment agency is not 
relieved of its obligation herein because the user did not request such 
validation or has requested the use of some lesser standard of 
validation than is provided in these guidelines. The use of an 
employment agency does not relieve an employer or labor organization or 
other user of its responsibilities under Federal law to provide equal 
employment opportunity or its obligations as a user under these 
guidelines.
    B. Where selection procedures are devised elsewhere. Where an 
employment agency or service is requested to administer a selection 
procedure which has been devised elsewhere and to make referrals 
pursuant to the results, the employment agency or service should 
maintain and have available evidence of the impact of the selection and 
referral procedures which it administers. If adverse impact results the 
agency or service should comply with these guidelines. If the agency or 
service seeks to comply with these guidelines by reliance upon validity 
studies or other data in the possession of the employer, it should 
obtain and have available such information.
    Sec. 11. Disparate treatment. The principles of disparate or unequal 
treatment must be distinguished from the concepts of validation. A 
selection procedure--even though validated against job performance in 
accordance with these guidelines--cannot be imposed upon members of a 
race, sex, or ethnic group where other employees, applicants, or members 
have not been subjected to that standard. Disparate treatment occurs 
where members of a race, sex, or ethnic group have been denied the same 
employment, promotion, membership, or other employment opportunities as 
have been available to other employees or applicants. Those employees or 
applicants who have been denied equal treatment, because of prior 
discriminatory practices or policies, must at least be afforded the same 
opportunities as had existed for other employees or applicants during 
the period of discrimination. Thus, the persons who were in the class of 
persons discriminated against during the period the user followed the 
discriminatory practices should be allowed the opportunity to qualify 
under less stringent selection procedures previously followed, unless 
the user demonstrates that the increased standards are required by 
business necessity. This section does not prohibit a user who has not 
previously followed merit standards from adopting merit standards which 
are in compliance with these guidelines; nor does it preclude a user who 
has previously used invalid or unvalidated selection procedures from 
developing and using procedures which are in accord with these 
guidelines.
    Sec. 12. Retesting of applicants. Users should provide a reasonable 
opportunity for retesting and reconsideration. Where examinations are 
administered periodically with public notice, such reasonable 
opportunity exists, unless persons who have previously been tested are 
precluded from retesting. The user may however take reasonable steps to 
preserve the security of its procedures.
    Sec. 13. Affirmative action-- A. Affirmative action obligations. The 
use of selection procedures which have been validated pursuant to these 
guidelines does not relieve users of any obligations they may have to 
undertake affirmative action to assure equal employment opportunity. 
Nothing in these guidelines is intended to preclude the use of lawful 
selection procedures which assist in remedying the effects of prior 
discriminatory practices, or the achievement of affirmative action 
objectives.
    B. Encouragement of voluntary affirmative action programs. These 
guidelines are also intended to encourage the adoption and 
implementation of voluntary affirmative action programs by users who 
have no obligation under Federal law to adopt them; but are not intended 
to impose any new obligations in that regard. The agencies issuing and 
endorsing these guidelines endorse for all private employers and 
reaffirm for all governmental employers the Equal Employment Opportunity 
Coordinating Council's ``Policy Statement on Affirmative Action Programs 
for State and Local Government Agencies'' (41 FR 38814, September 13, 
1976). That policy statement is attached hereto as appendix, section 17.

                           Technical Standards

    Sec. 14. Technical standards for validity studies. The following 
minimum standards, as applicable, should be met in conducting a validity 
study. Nothing in these guidelines is intended to preclude the 
development and use of other professionally acceptable techniques with 
respect to validation of selection procedures. Where it is not 
technically feasible for a user to conduct a validity study, the user 
has the obligation otherwise to comply with these guidelines. See 
sections 6 and 7 above.
    A. Validity studies should be based on review of information about 
the job. Any validity study should be based upon a review of information 
about the job for which the selection procedure is to be used. The 
review should include a job analysis except as provided in section 
14B(3) below with respect to criterion-related validity. Any method of 
job analysis may be used if it provides the information required for the 
specific validation strategy used.

[[Page 53]]

    B. Technical standards for criterion-related validity studies--(1) 
Technical feasibility. Users choosing to validate a selection procedure 
by a criterion-related validity strategy should determine whether it is 
technically feasible (as defined in section 16) to conduct such a study 
in the particular employment context. The determination of the number of 
persons necessary to permit the conduct of a meaningful criterion-
related study should be made by the user on the basis of all relevant 
information concerning the selection procedure, the potential sample and 
the employment situation. Where appropriate, jobs with substantially the 
same major work behaviors may be grouped together for validity studies, 
in order to obtain an adequate sample. These guidelines do not require a 
user to hire or promote persons for the purpose of making it possible to 
conduct a criterion-related study.
    (2) Analysis of the job. There should be a review of job information 
to determine measures of work behavior(s) or performance that are 
relevant to the job or group of jobs in question. These measures or 
criteria are relevant to the extent that they represent critical or 
important job duties, work behaviors or work outcomes as developed from 
the review of job information. The possibility of bias should be 
considered both in selection of the criterion measures and their 
application. In view of the possibility of bias in subjective 
evaluations, supervisory rating techniques and instructions to raters 
should be carefully developed. All criterion measures and the methods 
for gathering data need to be examined for freedom from factors which 
would unfairly alter scores of members of any group. The relevance of 
criteria and their freedom from bias are of particular concern when 
there are significant differences in measures of job performance for 
different groups.
    (3) Criterion measures. Proper safeguards should be taken to insure 
that scores on selection procedures do not enter into any judgments of 
employee adequacy that are to be used as criterion measures. Whatever 
criteria are used should represent important or critical work 
behavior(s) or work outcomes. Certain criteria may be used without a 
full job analysis if the user can show the importance of the criteria to 
the particular employment context. These criteria include but are not 
limited to production rate, error rate, tardiness, absenteeism, and 
length of service. A standardized rating of overall work performance may 
be used where a study of the job shows that it is an appropriate 
criterion. Where performance in training is used as a criterion, success 
in training should be properly measured and the relevance of the 
training should be shown either through a comparsion of the content of 
the training program with the critical or important work behavior(s) of 
the job(s), or through a demonstration of the relationship between 
measures of performance in training and measures of job performance. 
Measures of relative success in training include but are not limited to 
instructor evaluations, performance samples, or tests. Criterion 
measures consisting of paper and pencil tests will be closely reviewed 
for job relevance.
    (4) Representativeness of the sample. Whether the study is 
predictive or concurrent, the sample subjects should insofar as feasible 
be representative of the candidates normally available in the relevant 
labor market for the job or group of jobs in question, and should 
insofar as feasible include the races, sexes, and ethnic groups normally 
available in the relevant job market. In determining the 
representativeness of the sample in a concurrent validity study, the 
user should take into account the extent to which the specific 
knowledges or skills which are the primary focus of the test are those 
which employees learn on the job.
    Where samples are combined or compared, attention should be given to 
see that such samples are comparable in terms of the actual job they 
perform, the length of time on the job where time on the job is likely 
to affect performance, and other relevant factors likely to affect 
validity differences; or that these factors are included in the design 
of the study and their effects identified.
    (5) Statistical relationships. The degree of relationship between 
selection procedure scores and criterion measures should be examined and 
computed, using professionally acceptable statistical procedures. 
Generally, a selection procedure is considered related to the criterion, 
for the purposes of these guidelines, when the relationship between 
performance on the procedure and performance on the criterion measure is 
statistically significant at the 0.05 level of significance, which means 
that it is sufficiently high as to have a probability of no more than 
one (1) in twenty (20) to have occurred by chance. Absence of a 
statistically significant relationship between a selection procedure and 
job performance should not necessarily discourage other investigations 
of the validity of that selection procedure.
    (6) Operational use of selection procedures. Users should evaluate 
each selection procedure to assure that it is appropriate for 
operational use, including establishment of cutoff scores or rank 
ordering. Generally, if other factors reman the same, the greater the 
magnitude of the relationship (e.g., correlation coefficent) between 
performance on a selection procedure and one or more criteria of 
performance on the job, and the greater the importance and number of 
aspects of job performance covered by the criteria, the more likely it 
is that the procedure will be appropriate for use. Reliance upon a 
selection procedure which is significantly related to a criterion 
measure, but which is based upon a study involving a large

[[Page 54]]

number of subjects and has a low correlation coefficient will be subject 
to close review if it has a large adverse impact. Sole reliance upon a 
single selection instrument which is related to only one of many job 
duties or aspects of job performance will also be subject to close 
review. The appropriateness of a selection procedure is best evaluated 
in each particular situation and there are no minimum correlation 
coefficients applicable to all employment situations. In determining 
whether a selection procedure is appropriate for operational use the 
following considerations should also be taken into account: The degree 
of adverse impact of the procedure, the availability of other selection 
procedures of greater or substantially equal validity.
    (7) Overstatement of validity findings. Users should avoid reliance 
upon techniques which tend to overestimate validity findings as a result 
of capitalization on chance unless an appropriate safeguard is taken. 
Reliance upon a few selection procedures or criteria of successful job 
performance when many selection procedures or criteria of performance 
have been studied, or the use of optimal statistical weights for 
selection procedures computed in one sample, are techniques which tend 
to inflate validity estimates as a result of chance. Use of a large 
sample is one safeguard: Cross-validation is another.
    (8) Fairness. This section generally calls for studies of unfairness 
where technically feasible. The concept of fairness or unfairness of 
selection procedures is a developing concept. In addition, fairness 
studies generally require substantial numbers of employees in the job or 
group of jobs being studied. For these reasons, the Federal enforcement 
agencies recognize that the obligation to conduct studies of fairness 
imposed by the guidelines generally will be upon users or groups of 
users with a large number of persons in a a job class, or test 
developers; and that small users utilizing their own selection 
procedures will generally not be obligated to conduct such studies 
because it will be technically infeasible for them to do so.
    (a) Unfairness defined. When members of one race, sex, or ethnic 
group characteristically obtain lower scores on a selection procedure 
than members of another group, and the differences in scores are not 
reflected in differences in a measure of job performance, use of the 
selection procedure may unfairly deny opportunities to members of the 
group that obtains the lower scores.
    (b) Investigation of fairness. Where a selection procedure results 
in an adverse impact on a race, sex, or ethnic group identified in 
accordance with the classifications set forth in section 4 above and 
that group is a significant factor in the relevant labor market, the 
user generally should investigate the possible existence of unfairness 
for that group if it is technically feasible to do so. The greater the 
severity of the adverse impact on a group, the greater the need to 
investigate the possible existence of unfairness. Where the weight of 
evidence from other studies shows that the selection procedure predicts 
fairly for the group in question and for the same or similar jobs, such 
evidence may be relied on in connection with the selection procedure at 
issue.
    (c) General considerations in fairness investigations. Users 
conducting a study of fairness should review the A.P.A. Standards 
regarding investigation of possible bias in testing. An investigation of 
fairness of a selection procedure depends on both evidence of validity 
and the manner in which the selection procedure is to be used in a 
particular employment context. Fairness of a selection procedure cannot 
necessarily be specified in advance without investigating these factors. 
Investigation of fairness of a selection procedure in samples where the 
range of scores on selection procedures or criterion measures is 
severely restricted for any subgroup sample (as compared to other 
subgroup samples) may produce misleading evidence of unfairness. That 
factor should accordingly be taken into account in conducting such 
studies and before reliance is placed on the results.
    (d) When unfairness is shown. If unfairness is demonstrated through 
a showing that members of a particular group perform better or poorer on 
the job than their scores on the selection procedure would indicate 
through comparison with how members of other groups perform, the user 
may either revise or replace the selection instrument in accordance with 
these guidelines, or may continue to use the selection instrument 
operationally with appropriate revisions in its use to assure 
compatibility between the probability of successful job performance and 
the probability of being selected.
    (e) Technical feasibility of fairness studies. In addition to the 
general conditions needed for technical feasibility for the conduct of a 
criterion-related study (see section 16, below) an investigation of 
fairness requires the following:
    (i) An adequate sample of persons in each group available for the 
study to achieve findings of statistical significance. Guidelines do not 
require a user to hire or promote persons on the basis of group 
classifications for the purpose of making it possible to conduct a study 
of fairness; but the user has the obligation otherwise to comply with 
these guidelines.
    (ii) The samples for each group should be comparable in terms of the 
actual job they perform, length of time on the job where time on the job 
is likely to affect performance, and other relevant factors likely to 
affect validity differences; or such factors should be included in the 
design of the study and their effects identified.

[[Page 55]]

    (f) Continued use of selection procedures when fairness studies not 
feasible. If a study of fairness should otherwise be performed, but is 
not technically feasible, a selection procedure may be used which has 
otherwise met the validity standards of these guidelines, unless the 
technical infeasibility resulted from discriminatory employment 
practices which are demonstrated by facts other than past failure to 
conform with requirements for validation of selection procedures. 
However, when it becomes technically feasible for the user to perform a 
study of fairness and such a study is otherwise called for, the user 
should conduct the study of fairness.
    C. Technical standards for content validity studies--(1) 
Appropriateness of content validity studies. Users choosing to validate 
a selection procedure by a content validity strategy should determine 
whether it is appropriate to conduct such a study in the particular 
employment context. A selection procedure can be supported by a content 
validity strategy to the extent that it is a representative sample of 
the content of the job. Selection procedures which purport to measure 
knowledges, skills, or abilities may in certain circumstances be 
justified by content validity, although they may not be representative 
samples, if the knowledge, skill, or ability measured by the selection 
procedure can be operationally defined as provided in section 14C(4) 
below, and if that knowledge, skill, or ability is a necessary 
prerequisite to successful job performance.
    A selection procedure based upon inferences about mental processes 
cannot be supported solely or primarily on the basis of content 
validity. Thus, a content strategy is not appropriate for demonstrating 
the validity of selection procedures which purport to measure traits or 
constructs, such as intelligence, aptitude, personality, commonsense, 
judgment, leadership, and spatial ability. Content validity is also not 
an appropriate strategy when the selection procedure involves 
knowledges, skills, or abilities which an employee will be expected to 
learn on the job.
    (2) Job analysis for content validity. There should be a job 
analysis which includes an analysis of the important work behavior(s) 
required for successful performance and their relative importance and, 
if the behavior results in work product(s), an analysis of the work 
product(s). Any job analysis should focus on the work behavior(s) and 
the tasks associated with them. If work behavior(s) are not observable, 
the job analysis should identify and analyze those aspects of the 
behavior(s) that can be observed and the observed work products. The 
work behavior(s) selected for measurement should be critical work 
behavior(s) and/or important work behavior(s) constituting most of the 
job.
    (3) Development of selection procedures. A selection procedure 
designed to measure the work behavior may be developed specifically from 
the job and job analysis in question, or may have been previously 
developed by the user, or by other users or by a test publisher.
    (4) Standards for demonstrating content validity. To demonstrate the 
content validity of a selection procedure, a user should show that the 
behavior(s) demonstrated in the selection procedure are a representative 
sample of the behavior(s) of the job in question or that the selection 
procedure provides a representative sample of the work product of the 
job. In the case of a selection procedure measuring a knowledge, skill, 
or ability, the knowledge, skill, or ability being measured should be 
operationally defined. In the case of a selection procedure measuring a 
knowledge, the knowledge being measured should be operationally defined 
as that body of learned information which is used in and is a necessary 
prerequisite for observable aspects of work behavior of the job. In the 
case of skills or abilities, the skill or ability being measured should 
be operationally defined in terms of observable aspects of work behavior 
of the job. For any selection procedure measuring a knowledge, skill, or 
ability the user should show that (a) the selection procedure measures 
and is a representative sample of that knowledge, skill, or ability; and 
(b) that knowledge, skill, or ability is used in and is a necessary 
prerequisite to performance of critical or important work behavior(s). 
In addition, to be content valid, a selection procedure measuring a 
skill or ability should either closely approximate an observable work 
behavior, or its product should closely approximate an observable work 
product. If a test purports to sample a work behavior or to provide a 
sample of a work product, the manner and setting of the selection 
procedure and its level and complexity should closely approximate the 
work situation. The closer the content and the context of the selection 
procedure are to work samples or work behaviors, the stronger is the 
basis for showing content validity. As the content of the selection 
procedure less resembles a work behavior, or the setting and manner of 
the administration of the selection procedure less resemble the work 
situation, or the result less resembles a work product, the less likely 
the selection procedure is to be content valid, and the greater the need 
for other evidence of validity.
    (5) Reliability. The reliability of selection procedures justified 
on the basis of content validity should be a matter of concern to the 
user. Whenever it is feasible, appropriate statistical estimates should 
be made of the reliability of the selection procedure.
    (6) Prior training or experience. A requirement for or evaluation of 
specific prior training or experience based on content validity, 
including a specification of level or amount of training or experience, 
should be

[[Page 56]]

justified on the basis of the relationship between the content of the 
training or experience and the content of the job for which the training 
or experience is to be required or evaluated. The critical consideration 
is the resemblance between the specific behaviors, products, knowledges, 
skills, or abilities in the experience or training and the specific 
behaviors, products, knowledges, skills, or abilities required on the 
job, whether or not there is close resemblance between the experience or 
training as a whole and the job as a whole.
    (7) Content validity of training success. Where a measure of success 
in a training program is used as a selection procedure and the content 
of a training program is justified on the basis of content validity, the 
use should be justified on the relationship between the content of the 
training program and the content of the job.
    (8) Operational use. A selection procedure which is supported on the 
basis of content validity may be used for a job if it represents a 
critical work behavior (i.e., a behavior which is necessary for 
performance of the job) or work behaviors which constitute most of the 
important parts of the job.
    (9) Ranking based on content validity studies. If a user can show, 
by a job analysis or otherwise, that a higher score on a content valid 
selection procedure is likely to result in better job performance, the 
results may be used to rank persons who score above minimum levels. 
Where a selection procedure supported solely or primarily by content 
validity is used to rank job candidates, the selection procedure should 
measure those aspects of performance which differentiate among levels of 
job performance.
    D. Technical standards for construct validity studies--(1) 
Appropriateness of construct validity studies. Construct validity is a 
more complex strategy than either criterion-related or content validity. 
Construct validation is a relatively new and developing procedure in the 
employment field, and there is at present a lack of substantial 
literature extending the concept to employment practices. The user 
should be aware that the effort to obtain sufficient empirical support 
for construct validity is both an extensive and arduous effort involving 
a series of research studies, which include criterion related validity 
studies and which may include content validity studies. Users choosing 
to justify use of a selection procedure by this strategy should 
therefore take particular care to assure that the validity study meets 
the standards set forth below.
    (2) Job analysis for construct validity studies. There should be a 
job analysis. This job analysis should show the work behavior(s) 
required for successful performance of the job, or the groups of jobs 
being studied, the critical or important work behavior(s) in the job or 
group of jobs being studied, and an identification of the construct(s) 
believed to underlie successful performance of these critical or 
important work behaviors in the job or jobs in question. Each construct 
should be named and defined, so as to distinguish it from other 
constructs. If a group of jobs is being studied the jobs should have in 
common one or more critical or important work behaviors at a comparable 
level of complexity.
    (3) Relationship to the job. A selection procedure should then be 
identified or developed which measures the construct identified in 
accord with paragraph (2) above. The user should show by empirical 
evidence that the selection procedure is validly related to the 
construct and that the construct is validly related to the performance 
of critical or important work behavior(s). The relationship between the 
construct as measured by the selection procedure and the related work 
behavior(s) should be supported by empirical evidence from one or more 
criterion-related studies involving the job or jobs in question which 
satisfy the provisions of section 14B above.
    (4) Use of construct validity study without new criterion-related 
evidence--(a) Standards for use. Until such time as professional 
literature provides more guidance on the use of construct validity in 
employment situations, the Federal agencies will accept a claim of 
construct validity without a criterion-related study which satisfies 
section 14B above only when the selection procedure has been used 
elsewhere in a situation in which a criterion-related study has been 
conducted and the use of a criterion-related validity study in this 
context meets the standards for transportability of criterion-related 
validity studies as set forth above in section 7. However, if a study 
pertains to a number of jobs having common critical or important work 
behaviors at a comparable level of complexity, and the evidence 
satisfies paragraphs 14B (2) and (3) above for those jobs with 
criterion-related validity evidence for those jobs, the selection 
procedure may be used for all the jobs to which the study pertains. If 
construct validity is to be generalized to other jobs or groups of jobs 
not in the group studied, the Federal enforcement agencies will expect 
at a minimum additional empirical research evidence meeting the 
standards of paragraphs section 14B (2) and (3) above for the additional 
jobs or groups of jobs.
    (b) Determination of common work behaviors. In determining whether 
two or more jobs have one or more work behavior(s) in common, the user 
should compare the observed work behavior(s) in each of the jobs and 
should compare the observed work product(s) in each of the jobs. If 
neither the observed work behavior(s) in each of the jobs nor the 
observed work product(s) in each of the jobs

[[Page 57]]

are the same, the Federal enforcement agencies will presume that the 
work behavior(s) in each job are different. If the work behaviors are 
not observable, then evidence of similarity of work products and any 
other relevant research evidence will be considered in determining 
whether the work behavior(s) in the two jobs are the same.

              Documentation of Impact and Validity Evidence

    Sec. 15. Documentation of impact and validity evidence-- A. Required 
information. Users of selection procedures other than those users 
complying with section 15A(1) below should maintain and have available 
for each job information on adverse impact of the selection process for 
that job and, where it is determined a selection process has an adverse 
impact, evidence of validity as set forth below.
    (1) Simplified recordkeeping for users with less than 100 employees. 
In order to minimize recordkeeping burdens on employers who employ one 
hundred (100) or fewer employees, and other users not required to file 
EEO-1, et seq., reports, such users may satisfy the requirements of this 
section 15 if they maintain and have available records showing, for each 
year:
    (a) The number of persons hired, promoted, and terminated for each 
job, by sex, and where appropriate by race and national origin;
    (b) The number of applicants for hire and promotion by sex and where 
appropriate by race and national origin; and
    (c) The selection procedures utilized (either standardized or not 
standardized).
    These records should be maintained for each race or national origin 
group (see section 4 above) constituting more than two percent (2%) of 
the labor force in the relevant labor area. However, it is not necessary 
to maintain records by race and/or national origin (see section 4 above) 
if one race or national origin group in the relevant labor area 
constitutes more than ninety-eight percent (98%) of the labor force in 
the area. If the user has reason to believe that a selection procedure 
has an adverse impact, the user should maintain any available evidence 
of validity for that procedure (see sections 7A and 8).
    (2) Information on impact--(a) Collection of information on impact. 
Users of selection procedures other than those complying with section 
15A(1) above should maintain and have available for each job records or 
other information showing whether the total selection process for that 
job has an adverse impact on any of the groups for which records are 
called for by sections 4B above. Adverse impact determinations should be 
made at least annually for each such group which constitutes at least 2 
percent of the labor force in the relevant labor area or 2 percent of 
the applicable workforce. Where a total selection process for a job has 
an adverse impact, the user should maintain and have available records 
or other information showing which components have an adverse impact. 
Where the total selection process for a job does not have an adverse 
impact, information need not be maintained for individual components 
except in circumstances set forth in subsection 15A(2)(b) below. If the 
determination of adverse impact is made using a procedure other than the 
``four-fifths rule,'' as defined in the first sentence of section 4D 
above, a justification, consistent with section 4D above, for the 
procedure used to determine adverse impact should be available.
    (b) When adverse impact has been eliminated in the total selection 
process. Whenever the total selection process for a particular job has 
had an adverse impact, as defined in section 4 above, in any year, but 
no longer has an adverse impact, the user should maintain and have 
available the information on individual components of the selection 
process required in the preceding paragraph for the period in which 
there was adverse impact. In addition, the user should continue to 
collect such information for at least two (2) years after the adverse 
impact has been eliminated.
    (c) When data insufficient to determine impact. Where there has been 
an insufficient number of selections to determine whether there is an 
adverse impact of the total selection process for a particular job, the 
user should continue to collect, maintain and have available the 
information on individual components of the selection process required 
in section 15(A)(2)(a) above until the information is sufficient to 
determine that the overall selection process does not have an adverse 
impact as defined in section 4 above, or until the job has changed 
substantially.
    (3) Documentation of validity evidence--(a) Types of evidence. Where 
a total selection process has an adverse impact (see section 4 above) 
the user should maintain and have available for each component of that 
process which has an adverse impact, one or more of the following types 
of documentation evidence:
    (i) Documentation evidence showing criterion-related validity of the 
selection procedure (see section 15B, below).
    (ii) Documentation evidence showing content validity of the 
selection procedure (see section 15C, below).
    (iii) Documentation evidence showing construct validity of the 
selection procedure (see section 15D, below).
    (iv) Documentation evidence from other studies showing validity of 
the selection procedure in the user's facility (see section 15E, below).

[[Page 58]]

    (v) Documentation evidence showing why a validity study cannot or 
need not be performed and why continued use of the procedure is 
consistent with Federal law.
    (b) Form of report. This evidence should be compiled in a reasonably 
complete and organized manner to permit direct evaluation of the 
validity of the selection procedure. Previously written employer or 
consultant reports of validity, or reports describing validity studies 
completed before the issuance of these guidelines are acceptable if they 
are complete in regard to the documentation requirements contained in 
this section, or if they satisfied requirements of guidelines which were 
in effect when the validity study was completed. If they are not 
complete, the required additional documentation should be appended. If 
necessary information is not available the report of the validity study 
may still be used as documentation, but its adequacy will be evaluated 
in terms of compliance with the requirements of these guidelines.
    (c) Completeness. In the event that evidence of validity is reviewed 
by an enforcement agency, the validation reports completed after the 
effective date of these guidelines are expected to contain the 
information set forth below. Evidence denoted by use of the word 
``(Essential)'' is considered critical. If information denoted essential 
is not included, the report will be considered incomplete unless the 
user affirmatively demonstrates either its unavailability due to 
circumstances beyond the user's control or special circumstances of the 
user's study which make the information irrelevant. Evidence not so 
denoted is desirable but its absence will not be a basis for considering 
a report incomplete. The user should maintain and have available the 
information called for under the heading ``Source Data'' in sections 
15B(11) and 15D(11). While it is a necessary part of the study, it need 
not be submitted with the report. All statistical results should be 
organized and presented in tabular or graphic form to the extent 
feasible.
    B. Criterion-related validity studies. Reports of criterion-related 
validity for a selection procedure should include the following 
information:
    (1) User(s), location(s), and date(s) of study. Dates and 
location(s) of the job analysis or review of job information, the 
date(s) and location(s) of the administration of the selection 
procedures and collection of criterion data, and the time between 
collection of data on selection procedures and criterion measures should 
be provided (Essential). If the study was conducted at several 
locations, the address of each location, including city and State, 
should be shown.
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Job analysis or review of job information. A description of the 
procedure used to analyze the job or group of jobs, or to review the job 
information should be provided (Essential). Where a review of job 
information results in criteria which may be used without a full job 
analysis (see section 14B(3)), the basis for the selection of these 
criteria should be reported (Essential). Where a job analysis is 
required a complete description of the work behavior(s) or work 
outcome(s), and measures of their criticality or importance should be 
provided (Essential). The report should describe the basis on which the 
behavior(s) or outcome(s) were determined to be critical or important, 
such as the proportion of time spent on the respective behaviors, their 
level of difficulty, their frequency of performance, the consequences of 
error, or other appropriate factors (Essential). Where two or more jobs 
are grouped for a validity study, the information called for in this 
subsection should be provided for each of the jobs, and the 
justification for the grouping (see section 14B(1)) should be provided 
(Essential).
    (4) Job titles and codes. It is desirable to provide the user's job 
title(s) for the job(s) in question and the corresponding job title(s) 
and code(s) from U.S. Employment Service's Dictionary of Occupational 
Titles.
    (5) Criterion measures. The bases for the selection of the criterion 
measures should be provided, together with references to the evidence 
considered in making the selection of criterion measures (essential). A 
full description of all criteria on which data were collected and means 
by which they were observed, recorded, evaluated, and quantified, should 
be provided (essential). If rating techniques are used as criterion 
measures, the appraisal form(s) and instructions to the rater(s) should 
be included as part of the validation evidence, or should be explicitly 
described and available (essential). All steps taken to insure that 
criterion measures are free from factors which would unfairly alter the 
scores of members of any group should be described (essential).
    (6) Sample description. A description of how the research sample was 
identified and selected should be included (essential). The race, sex, 
and ethnic composition of the sample, including those groups set forth 
in section 4A above, should be described (essential). This description 
should include the size of each subgroup (essential). A description of 
how the research sample compares with the relevant labor market or work 
force, the method by which the relevant labor market or work force was 
defined, and a discussion of the likely effects on validity of 
differences between the sample and the relevant labor

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market or work force, are also desirable. Descriptions of educational 
levels, length of service, and age are also desirable.
    (7) Description of selection procedures. Any measure, combination of 
measures, or procedure studied should be completely and explicitly 
described or attached (essential). If commercially available selection 
procedures are studied, they should be described by title, form, and 
publisher (essential). Reports of reliability estimates and how they 
were established are desirable.
    (8) Techniques and results. Methods used in analyzing data should be 
described (essential). Measures of central tendency (e.g., means) and 
measures of dispersion (e.g., standard deviations and ranges) for all 
selection procedures and all criteria should be reported for each race, 
sex, and ethnic group which constitutes a significant factor in the 
relevant labor market (essential). The magnitude and direction of all 
relationships between selection procedures and criterion measures 
investigated should be reported for each relevant race, sex, and ethnic 
group and for the total group (essential). Where groups are too small to 
obtain reliable evidence of the magnitude of the relationship, need not 
be reported separately. Statements regarding the statistical 
significance of results should be made (essential). Any statistical 
adjustments, such as for less then perfect reliability or for 
restriction of score range in the selection procedure or criterion 
should be described and explained; and uncorrected correlation 
coefficients should also be shown (essential). Where the statistical 
technique categorizes continuous data, such as biserial correlation and 
the phi coefficient, the categories and the bases on which they were 
determined should be described and explained (essential). Studies of 
test fairness should be included where called for by the requirements of 
section 14B(8) (essential). These studies should include the rationale 
by which a selection procedure was determined to be fair to the group(s) 
in question. Where test fairness or unfairness has been demonstrated on 
the basis of other studies, a bibliography of the relevant studies 
should be included (essential). If the bibliography includes unpublished 
studies, copies of these studies, or adequate abstracts or summaries, 
should be attached (essential). Where revisions have been made in a 
selection procedure to assure compatability between successful job 
performance and the probability of being selected, the studies 
underlying such revisions should be included (essential). All 
statistical results should be organized and presented by relevant race, 
sex, and ethnic group (essential).
    (9) Alternative procedures investigated. The selection procedures 
investigated and available evidence of their impact should be identified 
(essential). The scope, method, and findings of the investigation, and 
the conclusions reached in light of the findings, should be fully 
described (essential).
    (10) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential). 
This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If weights are assigned to different parts of the 
selection procedure, these weights and the validity of the weighted 
composite should be reported (essential). If the selection procedure is 
used with a cutoff score, the user should describe the way in which 
normal expectations of proficiency within the work force were determined 
and the way in which the cutoff score was determined (essential).
    (11) Source data. Each user should maintain records showing all 
pertinent information about individual sample members and raters where 
they are used, in studies involving the validation of selection 
procedures. These records should be made available upon request of a 
compliance agency. In the case of individual sample members these data 
should include scores on the selection procedure(s), scores on criterion 
measures, age, sex, race, or ethnic group status, and experience on the 
specific job on which the validation study was conducted, and may also 
include such things as education, training, and prior job experience, 
but should not include names and social security numbers. Records should 
be maintained which show the ratings given to each sample member by each 
rater.
    (12) Contact person. The name, mailing address, and telephone number 
of the person who may be contacted for further information about the 
validity study should be provided (essential).
    (13) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    C. Content validity studies. Reports of content validity for a 
selection procedure should include the following information:
    (1) User(s), location(s) and date(s) of study. Dates and location(s) 
of the job analysis should be shown (essential).
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Job analysis--Content of the job. A description of the method 
used to analyze the job should be provided (essential). The work

[[Page 60]]

behavior(s), the associated tasks, and, if the behavior results in a 
work product, the work products should be completely described 
(essential). Measures of criticality and/or importance of the work 
behavior(s) and the method of determining these measures should be 
provided (essential). Where the job analysis also identified the 
knowledges, skills, and abilities used in work behavior(s), an 
operational definition for each knowledge in terms of a body of learned 
information and for each skill and ability in terms of observable 
behaviors and outcomes, and the relationship between each knowledge, 
skill, or ability and each work behavior, as well as the method used to 
determine this relationship, should be provided (essential). The work 
situation should be described, including the setting in which work 
behavior(s) are performed, and where appropriate, the manner in which 
knowledges, skills, or abilities are used, and the complexity and 
difficulty of the knowledge, skill, or ability as used in the work 
behavior(s).
    (4) Selection procedure and its content. Selection procedures, 
including those constructed by or for the user, specific training 
requirements, composites of selection procedures, and any other 
procedure supported by content validity, should be completely and 
explicitly described or attached (essential). If commercially available 
selection procedures are used, they should be described by title, form, 
and publisher (essential). The behaviors measured or sampled by the 
selection procedure should be explicitly described (essential). Where 
the selection procedure purports to measure a knowledge, skill, or 
ability, evidence that the selection procedure measures and is a 
representative sample of the knowledge, skill, or ability should be 
provided (essential).
    (5) Relationship between the selection procedure and the job. The 
evidence demonstrating that the selection procedure is a representative 
work sample, a representative sample of the work behavior(s), or a 
representative sample of a knowledge, skill, or ability as used as a 
part of a work behavior and necessary for that behavior should be 
provided (essential). The user should identify the work behavior(s) 
which each item or part of the selection procedure is intended to sample 
or measure (essential). Where the selection procedure purports to sample 
a work behavior or to provide a sample of a work product, a comparison 
should be provided of the manner, setting, and the level of complexity 
of the selection procedure with those of the work situation (essential). 
If any steps were taken to reduce adverse impact on a race, sex, or 
ethnic group in the content of the procedure or in its administration, 
these steps should be described. Establishment of time limits, if any, 
and how these limits are related to the speed with which duties must be 
performed on the job, should be explained. Measures of central tend- 
ency (e.g., means) and measures of dispersion (e.g., standard 
deviations) and estimates of realibility should be reported for all 
selection procedures if available. Such reports should be made for 
relevant race, sex, and ethnic subgroups, at least on a statistically 
reliable sample basis.
    (6) Alternative procedures investigated. The alternative selection 
procedures investigated and available evidence of their impact should be 
identified (essential). The scope, method, and findings of the 
investigation, and the conclusions reached in light of the findings, 
should be fully described (essential).
    (7) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential). 
This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If the selection procedure is used with a cutoff 
score, the user should describe the way in which normal expectations of 
proficiency within the work force were determined and the way in which 
the cutoff score was determined (essential). In addition, if the 
selection procedure is to be used for ranking, the user should specify 
the evidence showing that a higher score on the selection procedure is 
likely to result in better job performance.
    (8) Contact person. The name, mailing address, and telephone number 
of the person who may be contacted for further information about the 
validity study should be provided (essential).
    (9) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    D. Construct validity studies. Reports of construct validity for a 
selection procedure should include the following information:
    (1) User(s), location(s), and date(s) of study. Date(s) and 
location(s) of the job analysis and the gathering of other evidence 
called for by these guidelines should be provided (essential).
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Construct definition. A clear definition of the construct(s) 
which are believed to underlie successful performance of the critical or

[[Page 61]]

important work behavior(s) should be provided (essential). This 
definition should include the levels of construct performance relevant 
to the job(s) for which the selection procedure is to be used 
(essential). There should be a summary of the position of the construct 
in the psychological literature, or in the absence of such a position, a 
description of the way in which the definition and measurement of the 
construct was developed and the psychological theory underlying it 
(essential). Any quantitative data which identify or define the job 
constructs, such as factor analyses, should be provided (essential).
    (4) Job analysis. A description of the method used to analyze the 
job should be provided (essential). A complete description of the work 
behavior(s) and, to the extent appropriate, work outcomes and measures 
of their criticality and/or importance should be provided (essential). 
The report should also describe the basis on which the behavior(s) or 
outcomes were determined to be important, such as their level of 
difficulty, their frequency of performance, the consequences of error or 
other appropriate factors (essential). Where jobs are grouped or 
compared for the purposes of generalizing validity evidence, the work 
behavior(s) and work product(s) for each of the jobs should be 
described, and conclusions concerning the similarity of the jobs in 
terms of observable work behaviors or work products should be made 
(essential).
    (5) Job titles and codes. It is desirable to provide the selection 
procedure user's job title(s) for the job(s) in question and the 
corresponding job title(s) and code(s) from the United States Employment 
Service's dictionary of occupational titles.
    (6) Selection procedure. The selection procedure used as a measure 
of the construct should be completely and explicitly described or 
attached (essential). If commercially available selection procedures are 
used, they should be identified by title, form and publisher 
(essential). The research evidence of the relationship between the 
selection procedure and the construct, such as factor structure, should 
be included (essential). Measures of central tendency, variability and 
reliability of the selection procedure should be provided (essential). 
Whenever feasible, these measures should be provided separately for each 
relevant race, sex and ethnic group.
    (7) Relationship to job performance. The criterion-related 
study(ies) and other empirical evidence of the relationship between the 
construct measured by the selection procedure and the related work 
behavior(s) for the job or jobs in question should be provided 
(essential). Documentation of the criterion-related study(ies) should 
satisfy the provisions of section 15B above or section 15E(1) below, 
except for studies conducted prior to the effective date of these 
guidelines (essential). Where a study pertains to a group of jobs, and, 
on the basis of the study, validity is asserted for a job in the group, 
the observed work behaviors and the observed work products for each of 
the jobs should be described (essential). Any other evidence used in 
determining whether the work behavior(s) in each of the jobs is the same 
should be fully described (essential).
    (8) Alternative procedures investigated. The alternative selection 
procedures investigated and available evidence of their impact should be 
identified (essential). The scope, method, and findings of the 
investigation, and the conclusions reached in light of the findings 
should be fully described (essential).
    (9) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential). 
This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If weights are assigned to different parts of the 
selection procedure, these weights and the validity of the weighted 
composite should be reported (essential). If the selection procedure is 
used with a cutoff score, the user should describe the way in which 
normal expectations of proficiency within the work force were determined 
and the way in which the cutoff score was determined (essential).
    (10) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    (11) Source data. Each user should maintain records showing all 
pertinent information relating to its study of construct validity.
    (12) Contact person. The name, mailing address, and telephone number 
of the individual who may be contacted for further information about the 
validity study should be provided (essential).
    E. Evidence of validity from other studies. When validity of a 
selection procedure is supported by studies not done by the user, the 
evidence from the original study or studies should be compiled in a 
manner similar to that required in the appropriate section of this 
section 15 above. In addition, the following evidence should be 
supplied:
    (1) Evidence from criterion-related validity studies--a. Job 
information. A description of the important job behavior(s) of the 
user's job and the basis on which the behaviors were determined to be 
important should be provided (essential). A full description of the 
basis for determining that these important work behaviors are the same 
as those of the

[[Page 62]]

job in the original study (or studies) should be provided (essential).
    b. Relevance of criteria. A full description of the basis on which 
the criteria used in the original studies are determined to be relevant 
for the user should be provided (essential).
    c. Other variables. The similarity of important applicant pool or 
sample characteristics reported in the original studies to those of the 
user should be described (essential). A description of the comparison 
between the race, sex and ethnic composition of the user's relevant 
labor market and the sample in the original validity studies should be 
provided (essential).
    d. Use of the selection procedure. A full description should be 
provided showing that the use to be made of the selection procedure is 
consistent with the findings of the original validity studies 
(essential).
    e. Bibliography. A bibliography of reports of validity of the 
selection procedure for the job or jobs in question should be provided 
(essential). Where any of the studies included an investigation of test 
fairness, the results of this investigation should be provided 
(essential). Copies of reports published in journals that are not 
commonly available should be described in detail or attached 
(essential). Where a user is relying upon unpublished studies, a 
reasonable effort should be made to obtain these studies. If these 
unpublished studies are the sole source of validity evidence they should 
be described in detail or attached (essential). If these studies are not 
available, the name and address of the source, an adequate abstract or 
summary of the validity study and data, and a contact person in the 
source organization should be provided (essential).
    (2) Evidence from content validity studies. See section 14C(3) and 
section 15C above.
    (3) Evidence from construct validity studies. See sections 14D(2) 
and 15D above.
    F. Evidence of validity from cooperative studies. Where a selection 
procedure has been validated through a cooperative study, evidence that 
the study satisfies the requirements of sections 7, 8 and 15E should be 
provided (essential).
    G. Selection for higher level job. If a selection procedure is used 
to evaluate candidates for jobs at a higher level than those for which 
they will initially be employed, the validity evidence should satisfy 
the documentation provisions of this section 15 for the higher level job 
or jobs, and in addition, the user should provide: (1) A description of 
the job progression structure, formal or informal; (2) the data showing 
how many employees progress to the higher level job and the length of 
time needed to make this progression; and (3) an identification of any 
anticipated changes in the higher level job. In addition, if the test 
measures a knowledge, skill or ability, the user should provide evidence 
that the knowledge, skill or ability is required for the higher level 
job and the basis for the conclusion that the knowledge, skill or 
ability is not expected to develop from the training or experience on 
the job.
    H. Interim use of selection procedures. If a selection procedure is 
being used on an interim basis because the procedure is not fully 
supported by the required evidence of validity, the user should maintain 
and have available (1) substantial evidence of validity for the 
procedure, and (2) a report showing the date on which the study to 
gather the additional evidence commenced, the estimated completion date 
of the study, and a description of the data to be collected (essential).

                               Definitions

    Sec. 16. Definitions. The following definitions shall apply 
throughout these guidelines:
    A. Ability. A present competence to perform an observable behavior 
or a behavior which results in an observable product.
    B. Adverse impact. A substantially different rate of selection in 
hiring, promotion, or other employment decision which works to the 
disadvantage of members of a race, sex, or ethnic group. See section 4 
of these guidelines.
    C. Compliance with these guidelines. Use of a selection procedure is 
in compliance with these guidelines if such use has been validated in 
accord with these guidelines (as defined below), or if such use does not 
result in adverse impact on any race, sex, or ethnic group (see section 
4, above), or, in unusual circumstances, if use of the procedure is 
otherwise justified in accord with Federal law. See section 6B, above.
    D. Content validity. Demonstrated by data showing that the content 
of a selection procedure is representative of important aspects of 
performance on the job. See section 5B and section 14C.
    E. Construct validity. Demonstrated by data showing that the 
selection procedure measures the degree to which candidates have 
identifiable characteristics which have been determined to be important 
for successful job performance. See section 5B and section 14D.
    F. Criterion-related validity. Demonstrated by empirical data 
showing that the selection procedure is predictive of or significantly 
correlated with important elements of work behavior. See sections 5B and 
14B.
    G. Employer. Any employer subject to the provisions of the Civil 
Rights Act of 1964, as amended, including State or local governments and 
any Federal agency subject to the provisions of section 717 of the Civil 
Rights Act of 1964, as amended, and any Federal

[[Page 63]]

contractor or subcontractor or federally assisted construction 
contractor or subcontactor covered by Executive Order 11246, as amended.
    H. Employment agency. Any employment agency subject to the 
provisions of the Civil Rights Act of 1964, as amended.
    I. Enforcement action. For the purposes of section 4 a proceeding by 
a Federal enforcement agency such as a lawsuit or an administrative 
proceeding leading to debarment from or withholding, suspension, or 
termination of Federal Government contracts or the suspension or 
withholding of Federal Government funds; but not a finding of reasonable 
cause or a concil- ation process or the issuance of right to sue letters 
under title VII or under Executive Order 11246 where such finding, 
conciliation, or issuance of notice of right to sue is based upon an 
individual complaint.
    J. Enforcement agency. Any agency of the executive branch of the 
Federal Government which adopts these guidelines for purposes of the 
enforcement of the equal employment opportunity laws or which has 
responsibility for securing compliance with them.
    K. Job analysis. A detailed statement of work behaviors and other 
information relevant to the job.
    L. Job description. A general statement of job duties and 
responsibilities.
    M. Knowledge. A body of information applied directly to the 
performance of a function.
    N. Labor organization. Any labor organization subject to the 
provisions of the Civil Rights Act of 1964, as amended, and any 
committee subject thereto controlling apprenticeship or other training.
    O. Observable. Able to be seen, heard, or otherwise perceived by a 
person other than the person performing the action.
    P. Race, sex, or ethnic group. Any group of persons identifiable on 
the grounds of race, color, religion, sex, or national origin.
    Q. Selection procedure. Any measure, combination of measures, or 
procedure used as a basis for any employment decision. Selection 
procedures include the full range of assessment techniques from 
traditional paper and pencil tests, performance tests, training 
programs, or probationary periods and physical, educational, and work 
experience requirements through informal or casual interviews and 
unscored application forms.
    R. Selection rate. The proportion of applicants or candidates who 
are hired, promoted, or otherwise selected.
    S. Should. The term ``should'' as used in these guidelines is 
intended to connote action which is necessary to achieve compliance with 
the guidelines, while recognizing that there are circumstances where 
alternative courses of action are open to users.
    T. Skill. A present, observable competence to perform a learned 
psychomoter act.
    U. Technical feasibility. The exist- ence of conditions permitting 
the conduct of meaningful criterion-related validity studies. These 
conditions include: (1) An adequate sample of persons available for the 
study to achieve findings of statistical significance; (2) having or 
being able to obtain a sufficient range of scores on the selection 
procedure and job performance measures to produce validity results which 
can be expected to be representative of the results if the ranges 
normally expected were utilized; and (3) having or being able to devise 
unbiased, reliable and relevant measures of job performance or other 
criteria of employee adequacy. See section 14B(2). With respect to 
investigation of possible unfairness, the same considerations are 
applicable to each group for which the study is made. See section 
14B(8).
    V. Unfairness of selection procedure. A condition in which members 
of one race, sex, or ethnic group characteristically obtain lower scores 
on a selection procedure than members of another group, and the 
differences are not reflected in differences in measures of job 
performance. See section 14B(7).
    W. User. Any employer, labor organization, employment agency, or 
licensing or certification board, to the extent it may be covered by 
Federal equal employment opportunity law, which uses a selection 
procedure as a basis for any employment decision. Whenever an employer, 
labor organization, or employment agency is required by law to restrict 
recruitment for any occupation to those applicants who have met 
licensing or certification requirements, the licensing or certifying 
authority to the extent it may be covered by Federal equal employment 
opportunity law will be considered the user with respect to those 
licensing or certification requirements. Whenever a State employment 
agency or service does no more than administer or monitor a procedure as 
permitted by Department of Labor regulations, and does so without making 
referrals or taking any other action on the basis of the results, the 
State employment agency will not be deemed to be a user.
    X. Validated in accord with these guidelines or properly validated. 
A demonstration that one or more validity study or studies meeting the 
standards of these guidelines has been conducted, including 
investigation and, where appropriate, use of suitable alternative 
selection procedures as contemplated by section 3B, and has produced 
evidence of validity sufficient to warrant use of the procedure for the 
intended purpose under the standards of these guidelines.
    Y. Work behavior. An activity performed to achieve the objectives of 
the job. Work behaviors involve observable (physical) components and 
unobservable (mental) components. A work behavior consists of the 
performance of one or more tasks. Knowledges,

[[Page 64]]

skills, and abilities are not behaviors, although they may be applied in 
work behaviors.

                                Appendix

    17. Policy statement on affirmative action (see section 13B). The 
Equal Employment Opportunity Coordinating Council was established by act 
of Congress in 1972, and charged with responsibility for developing and 
implementing agreements and policies designed, among other things, to 
eliminate conflict and inconsistency among the agencies of the Federal 
Government responsible for administering Federal law prohibiting 
discrimination on grounds of race, color, sex, religion, and national 
origin. This statement is issued as an initial response to the requests 
of a number of State and local officials for clarification of the 
Government's policies concerning the role of affirmative action in the 
overall equal employment opportunity program. While the Coordinating 
Council's adoption of this statement expresses only the views of the 
signatory agencies concerning this important subject, the principles set 
forth below should serve as policy guidance for other Federal agencies 
as well.
    (1) Equal employment opportunity is the law of the land. In the 
public sector of our society this means that all persons, regardless of 
race, color, religion, sex, or national origin shall have equal access 
to positions in the public service limited only by their ability to do 
the job. There is ample evidence in all sectors of our society that such 
equal access frequently has been denied to members of certain groups 
because of their sex, racial, or ethnic characteristics. The remedy for 
such past and present discrimination is twofold.
    On the one hand, vigorous enforcement of the laws against 
discrimination is essential. But equally, and perhaps even more 
important are affirmative, voluntary efforts on the part of public 
employers to assure that positions in the public service are genuinely 
and equally accessible to qualified persons, without regard to their 
sex, racial, or ethnic characteristics. Without such efforts equal 
employment opportunity is no more than a wish. The importance of 
voluntary affirmative action on the part of employers is underscored by 
title VII of the Civil Rights Act of 1964, Executive Order 11246, and 
related laws and regulations--all of which emphasize voluntary action to 
achieve equal employment opportunity.
    As with most management objectives, a systematic plan based on sound 
organizational analysis and problem identification is crucial to the 
accomplishment of affirmative action objectives. For this reason, the 
Council urges all State and local governments to develop and implement 
results oriented affirmative action plans which deal with the problems 
so identified.
    The following paragraphs are intended to assist State and local 
governments by illustrating the kinds of analyses and activities which 
may be appropriate for a public employer's voluntary affirmative action 
plan. This statement does not address remedies imposed after a finding 
of unlawful discrimination.
    (2) Voluntary affirmative action to assure equal employment 
opportunity is appropriate at any stage of the employment process. The 
first step in the construction of any affirmative action plan should be 
an analysis of the employer's work force to determine whether 
percentages of sex, race, or ethnic groups in individual job 
classifications are substantially similar to the percentages of those 
groups available in the relevant job market who possess the basic job-
related qualifications.
    When substantial disparities are found through such analyses, each 
element of the overall selection process should be examined to determine 
which elements operate to exclude persons on the basis of sex, race, or 
ethnic group. Such elements include, but are not limited to, 
recruitment, testing, ranking certification, interview, recommendations 
for selection, hiring, promotion, etc. The examination of each element 
of the selection process should at a minimum include a determination of 
its validity in predicting job performance.
    (3) When an employer has reason to believe that its selection 
procedures have the exclusionary effect described in paragraph 2 above, 
it should initiate affirmative steps to remedy the situation. Such 
steps, which in design and execution may be race, color, sex, or ethnic 
``conscious,'' include, but are not limited to, the following:
    (a) The establishment of a long-term goal, and short-range, interim 
goals and timetables for the specific job classifications, all of which 
should take into account the availability of basically qualified persons 
in the relevant job market;
    (b) A recruitment program designed to attract qualified members of 
the group in question;
    (c) A systematic effort to organize work and redesign jobs in ways 
that provide opportunities for persons lacking ``journeyman'' level 
knowledge or skills to enter and, with appropriate training, to progress 
in a career field;
    (d) Revamping selection instruments or procedures which have not yet 
been validated in order to reduce or eliminate exclusionary effects on 
particular groups in particular job classifications;
    (e) The initiation of measures designed to assure that members of 
the affected group

[[Page 65]]

who are qualified to perform the job are included within the pool of 
persons from which the selecting official makes the selection;
    (f) A systematic effort to provide career advancement training, both 
classroom and on-the-job, to employees locked into dead end jobs; and
    (g) The establishment of a system for regularly monitoring the 
effectiveness of the particular affirmative action program, and 
procedures for making timely adjustments in this program where 
effectiveness is not demonstrated.
    (4) The goal of any affirmative action plan should be achievement of 
genuine equal employment opportunity for all qualified persons. 
Selection under such plans should be based upon the ability of the 
applicant(s) to do the work. Such plans should not require the selection 
of the unqualified, or the unneeded, nor should they require the 
selection of persons on the basis of race, color, sex, religion, or 
national origin. Moreover, while the Council believes that this 
statement should serve to assist State and local employers, as well as 
Federal agencies, it recognizes that affirmative action cannot be viewed 
as a standardized program which must be accomplished in the same way at 
all times in all places.
    Accordingly, the Council has not attempted to set forth here either 
the minimum or maximum voluntary steps that employers may take to deal 
with their respective situations. Rather, the Council recognizes that 
under applicable authorities, State and local employers have flexibility 
to formulate affirmative action plans that are best suited to their 
particular situations. In this manner, the Council believes that 
affirmative action programs will best serve the goal of equal employment 
opportunity.
    Respectfully submitted,

          Harold R. Tyler, Jr.,
    Deputy Attorney General and Chairman of the Equal Employment 
Coordinating Council.

          Michael H. Moskow,
    Under Secretary of Labor.

          Ethel Bent Walsh,
    Acting Chairman, Equal Employment Opportunity Commission.

          Robert E. Hampton,
    Chairman, Civil Service Commission.

          Arthur E. Flemming,
    Chairman, Commission on Civil Rights.

    Because of its equal employment opportunity responsibilities under 
the State and Local Government Fiscal Assistance Act of 1972 (the 
revenue sharing act), the Department of Treasury was invited to 
participate in the formulation of this policy statement; and it concurs 
and joins in the adoption of this policy statement.

    Done this 26th day of August 1976.

          Richard Albrecht,
    General Counsel, Department of the Treasury.

    Section 18. Citations. The official title of these guidelines is 
``Uniform Guidelines on Employee Selection Procedures (1978)''. The 
Uniform Guidelines on Employee Selection Procedures (1978) are intended 
to establish a uniform Federal position in the area of prohibiting 
discrimination in employment practices on grounds of race, color, 
religion, sex, or national origin. These guidelines have been adopted by 
the Equal Employment Opportunity Commission, the Department of Labor, 
the Department of Justice, and the Civil Service Commission.
    The official citation is:
    ``Section ----, Uniform Guidelines on Employee Selection Procedure 
(1978); 43 FR ---- (August 25, 1978).''
    The short form citation is:
    ``Section ----, U.G.E.S.P. (1978); 43 FR ---- (August 25, 1978).''
    When the guidelines are cited in connection with the activities of 
one of the issuing agencies, a specific citation to the regulations of 
that agency can be added at the end of the above citation. The specific 
additional citations are as follows:

Equal Employment Opportunity Commission
    29 CFR Part 1607
Department of Labor
Office of Federal Contract Compliance Programs
    41 CFR Part 60-3
Department of Justice
    28 CFR 50.14
Civil Service Commission
    5 CFR 300.103(c)

    Normally when citing these guidelines, the section number 
immediately preceding the title of the guidelines will be from these 
guidelines series 1-18. If a section number from the codification for an 
individual agency is needed it can also be added at the end of the 
agency citation. For example, section 6A of these guidelines could be 
cited for EEOC as follows: ``Section 6A, Uniform Guidelines on Employee 
Selection Procedures (1978); 43 FR ----, (August 25, 1978); 29 CFR part 
1607, section 6A.''

          Eleanor Holmes Norton,
    Chair, Equal Employment Opportunity Commission.

          Alan K. Campbell,
    Chairman, Civil Service Commission.

          Ray Marshall,
    Secretary of Labor.

          Griffin B. Bell,
    Attorney General.

[Order No. 668-76, 41 FR 51735, Nov. 23, 1976, as amended at 43 FR 
38295, Aug. 25, 1978]

[[Page 66]]




Sec. 50.15  Representation of Federal officials and employees by 
Department of Justice attorneys or by private counsel furnished by 
the Department in civil, 
          criminal, and congressional proceedings in which Federal 
          employees are sued, subpoenaed, or charged in their individual 
          capacities.

    (a) Under the procedures set forth below, a federal employee (hereby 
defined to include present and former Federal officials and employees) 
may be provided representation in civil, criminal and Congressional 
proceedings in which he is sued, subpoenaed, or charged in his 
individual capacity, not covered by Sec. 15.1 of this chapter, when the 
actions for which representation is requested reasonably appear to have 
been performed within the scope of the employee's employment and the 
Attorney General or his designee determines that providing 
representation would otherwise be in the interest of the United States. 
No special form of request for representation is required when it is 
clear from the proceedings in a case that the employee is being sued 
solely in his official capacity and only equitable relief is sought. 
(See USAM 4-13.000)
    (1) When an employee believes he is entitled to representation by 
the Department of Justice in a proceeding, he must submit forthwith a 
written request for that representation, together with all process and 
pleadings served upon him, to his immediate supervisor or whomever is 
designated by the head of his department or agency. Unless the 
employee's employing federal agency concludes that representation is 
clearly unwarranted, it shall submit, in a timely manner, to the Civil 
Division or other appropriate litigating division (Antitrust, Civil 
Rights, Criminal, Land and Natural Resources or the Tax Division), a 
statement containing its findings as to whether the employee was acting 
within the scope of his employment and its recommendation for or against 
providing representation. The statement should be accompanied by all 
available factual information. In emergency situations the litigating 
division may initiate conditional representation after a telephone 
request from the appropriate official of the employing agency. In such 
cases, the written request and appropriate documentation must be 
subsequently provided.
    (2) Upon receipt of the individual's request for counsel, the 
litigating division shall determine whether the employee's actions 
reasonably appear to have been performed within the scope of his 
employment and whether providing representation would be in the interest 
of the United States. In circumstances where considerations of 
professional ethics prohibit direct review of the facts by attorneys of 
the litigating division (e.g. because of the possible existence of 
inter-defendant conflicts) the litigating division may delegate the 
fact-finding aspects of this function to other components of the 
Department or to a private attorney at federal expenses.
    (3) Attorneys employed by any component of the Department of Justice 
who participate in any process utilized for the purpose of determining 
whether the Department should provide representation to a federal 
employee, undertake a full and traditional attorney-client relationship 
with the employee with respect to application of the attorney-client 
privilege. If representation is authorized, Justice Department attorneys 
who represent an employee under this section also undertake a full and 
traditional attorney-client relationship with the employee with respect 
to the attorney-client privilege. Any adverse information communicated 
by the client-employee to an attorney during the course of such 
attorney-client relationship shall not be disclosed to anyone, either 
inside or outside the Department, other than attorneys responsible for 
representation of the employee, unless such disclosure is authorized by 
the employee. Such adverse information shall continue to be fully 
protected whether or not representation is provided, and even though 
representation may be denied or discontinued. The extent, if any, to 
which attorneys employed by an agency other than the Department of 
Justice undertake a full and traditional attorney-client relationship 
with the employee with respect to the attorney-client privilege, either 
for purposes of determining whether representation should be provided or 
to assist Justice

[[Page 67]]

Department attorneys in representing the employee, shall be determined 
by the agency employing the attorneys.
    (4) Representation generally is not available in federal criminal 
proceedings. Representation may be provided to a federal employee in 
connection with a federal criminal proceeding only where the Attorney 
General or his designee determines that representation is in the 
interest of the United States and subject to applicable limitations of 
Sec. 50.16. In determining whether representation in a federal criminal 
proceeding is in the interest of the United States, the Attorney General 
or his designee shall consider, among other factors, the relevance of 
any non-prosecutorial interests of the United States, the importance of 
the interests implicated, the Department's ability to protect those 
interests through other means, and the likelihood of a conflict of 
interest between the Department's prosecutorial and representational 
responsibilities. If representation is authorized, the Attorney General 
or his designee also may determine whether representation by Department 
attorneys, retention of private counsel at federal expense, or 
reimbursement to the employee of private counsel fees is most 
appropriate under the circumstances.
    (5) Where representation is sought for proceedings other than 
federal criminal proceedings, but there appears to exist the possibility 
of a federal criminal investigation or indictment relating to the same 
subject matter, the litigating division shall contact a designated 
official in the Criminal, Civil Rights or Tax Division or other 
prosecutive authority within the Department (hereinafter ``prosecuting 
division'') to determine whether the employee is either a subject of a 
federal criminal investigation or a defendant in a federal criminal 
case. An employee is the subject of an investigation if, in addition to 
being circumstantially implicated by having the appropriate 
responsibilities at the appropriate time, there is some evidence of his 
specific participation in a crime.
    (6) If a prosecuting division of the Department indicates that the 
employee is not the subject of a criminal investigation concerning the 
act or acts for which he seeks representation, then representation may 
be provided if otherwise permissible under the provisions of this 
section. Similarly, if the prosecuting division indicates that there is 
an ongoing investigation, but into a matter unrelated to that for which 
representation has been requested, then representation may be provided.
    (7) If the prosecuting division indicates that the employee is the 
subject of a federal criminal investigation concerning the act or acts 
for which he seeks representation, the litigating division shall inform 
the employee that no representation by Justice Department attorneys will 
be provided in that federal criminal proceeding or in any related civil, 
congressional, or state criminal proceeding. In such a case, however, 
the litigating division, in its discretion, may provide a private 
attorney to the employee at federal expense under the procedures of 
Sec. 50.16, or provide reimbursement to employees for private attorney 
fees incurred in connection with such related civil, congressional, or 
state criminal proceeding, provided no decision has been made to seek an 
indictment or file an information against the employee.
    (8) In any case where it is determined that Department of Justice 
attorneys will represent a federal employee, the employee must be 
notified of his right to retain private counsel at his own expense. If 
he elects representation by Department of Justice attorneys, the 
employee and his agency shall be promptly informed:
    (i) That in actions where the United States, any agency, or any 
officer thereof in his official capacity is also named as a defendant, 
the Department of Justice is required by law to represent the United 
States and/or such agency or officer and will assert all appropriate 
legal positions and defenses on behalf of such agency, officer and/or 
the United States;
    (ii) That the Department of Justice will not assert any legal 
position or defense on behalf of any employee sued in his individual 
capacity which is deemed not to be in the interest of the United States;
    (iii) Where appropriate, that neither the Department of Justice nor 
any

[[Page 68]]

agency of the U.S. Government is obligated to pay or to indemnify the 
defendant employee for any judgment for money damages which may be 
rendered against such employee; but that, where authorized, the employee 
may apply for such indemnification from his employing agency upon the 
entry of an adverse verdict, judgment, or other monetary award;
    (iv) That any appeal by Department of Justice attorneys from an 
adverse ruling or judgment against the employee may only be taken upon 
the discretionary approval of the Solicitor General, but the employee-
defendant may pursue an appeal at his own expense whenever the Solicitor 
General declines to authorize an appeal and private counsel is not 
provided at federal expense under the procedures of Sec. 50.16; and
    (v) That while no conflict appears to exist at the time 
representation is tendered which would preclude making all arguments 
necessary to the adequate defense of the employee, if such conflict 
should arise in the future the employee will be promptly advised and 
steps will be taken to resolve the conflict as indicated by paragraph 
(a) (6), (9) and (10) of this section, and by Sec. 50.16.
    (9) If a determination not to provide representation is made, the 
litigating division shall inform the agency and/or the employee of the 
determination.
    (10) If conflicts exist between the legal and factual positions of 
various employees in the same case which make it inappropriate for a 
single attorney to represent them all, the employees may be separated 
into as many compatible groups as is necessary to resolve the conflict 
problem and each group may be provided with separate representation. 
Circumstances may make it advisable that private representation be 
provided to all conflicting groups and that direct Justice Department 
representation be withheld so as not to prejudice particular defendants. 
In such situations, the procedures of Sec. 50.16 will apply.
    (11) Whenever the Solicitor General declines to authorize further 
appellate review or the Department attorney assigned to represent an 
employee becomes aware that the representation of the employee could 
involve the assertion of a position that conflicts with the interests of 
the United States, the attorney shall fully advise the employee of the 
decision not to appeal or the nature, extent, and potential consequences 
of the conflict. The attorney shall also determine, after consultation 
with his supervisor (and, if appropriate, with the litigating division) 
whether the assertion of the position or appellate review is necessary 
to the adequate representation of the employee and
    (i) If it is determined that the assertion of the position or appeal 
is not necessary to the adequate representation of the employee, and if 
the employee knowingly agrees to forego appeal or to waive the assertion 
of that position, governmental representation may be provided or 
continued; or
    (ii) If the employee does not consent to forego appeal or waive the 
assertion of the position, or if it is determined that an appeal or 
assertion of the position is necessary to the adequate representation of 
the employee, a Justice Department lawyer may not provide or continue to 
provide the representation; and
    (iii) In appropriate cases arising under paragraph (a)(10)(ii) of 
this section, a private attorney may be provided at federal expense 
under the procedures of Sec. 50.16.
    (12) Once undertaken, representation of a federal employee under 
this subsection will continue until either all appropriate proceedings, 
including applicable appellate procedures approved by the Solicitor 
General, have ended, or until any of the bases for declining or 
withdrawing from representation set forth in this section is found to 
exist, including without limitation the basis that representation is not 
in the interest of the United States. If representation is discontinued 
for any reason, the representing Department attorney on the case will 
seek to withdraw but will take all reasonable steps to avoid prejudice 
to the employee.
    (b) Representation is not available to a federal employee whenever:
    (1) The conduct with regard to which the employee desires 
representation does not reasonably appear to have been performed within 
the scope of his

[[Page 69]]

employment with the federal government;
    (2) It is otherwise determined by the Department that it is not in 
the interest of the United States to provide representation to the 
employee.
    (c)(1) The Department of Justice may indemnify the defendant 
Department of Justice employee for any verdict, judgment, or other 
monetary award which is rendered against such employee, provided that 
the conduct giving rise to the verdict, judgment, or award was taken 
within the scope of employment and that such indemnification is in the 
interest of the United States, as determined by the Attorney General or 
his designee.
    (2) The Department of Justice may settle or compromise a personal 
damages claim against a Department of Justice employee by the payment of 
available funds, at any time, provided the alleged conduct giving rise 
to the personal damages claim was taken within the scope of employment 
and that such settlement or compromise is in the interest of the United 
States, as determined by the Attorney General or his designee.
    (3) Absent exceptional circumstances as determined by the Attorney 
General or his designee, the Department will not entertain a request 
either to agree to indemnify or to settle a personal damages claim 
before entry of an adverse verdict, judgment, or award.
    (4) The Department of Justice employee may request indemnification 
to satisfy a verdict, judgment, or award entered against the employee. 
The employee shall submit a written request, with appropriate 
documentation including copies of the verdict, judgment, award, or 
settlement proposal if on appeal, to the head of his employing 
component, who shall thereupon submit to the appropriate Assistant 
Attorney General, in a timely manner, a recommended disposition of the 
request. Where appropriate, the Assistant Attorney General shall seek 
the views of the U.S. Attorney; in all such cases the Civil Division 
shall be consulted. The Assistant Attorney General shall forward the 
request, the employing component's recommendation, and the Assistant 
Attorney General's recommendation to the Attorney General for decision.
    (5) Any payment under this section either to indemnify a Department 
of Justice employee or to settle a personal damages claim shall be 
contingent upon the availability of appropriated funds of the employing 
component of the Department of Justice.

[Order No. 970-82, 47 FR 8172, Feb. 25, 1982, as amended at Order No. 
1139-86, 51 FR 27022, July 29, 1986; Order No. 1409-90, 55 FR 13130, 
Apr. 9, 1990]



Sec. 50.16  Representation of Federal employees by private counsel at Federal expense.

    (a) Representation by private counsel at federal expense or 
reimbursement of private counsel fees is subject to the availability of 
funds and may be provided to a federal employee only in the instances 
described in Sec. 50.15(a) (4), (7), (10), and (11), and in appropriate 
circumstances, for the purposes set forth in Sec. 50.15(a)(2).
    (b) To ensure uniformity in retention and reimbursement procedures 
among the litigating divisions, the Civil Division shall be responsible 
for establishing procedures for the retention of private counsel and the 
reimbursement to an employee of private counsel fees, including the 
setting of fee schedules. In all instances where a litigating division 
decides to retain private counsel or to provide reimbursement of private 
counsel fees under this section, the Civil Division shall be consulted 
before the retention or reimbursement is undertaken.
    (c) Where private counsel is provided, the following procedures 
shall apply:
    (1) While the Department of Justice will generally defer to the 
employee's choice of counsel, the Department must approve in advance any 
private counsel to be retained under this section. Where national 
security interests may be involved, the Department of Justice will 
consult with the agency employing the federal defendant seeking 
representation.
    (2) Federal payments to private counsel for an employee will cease 
if the private counsel violates any of the terms of the retention 
agreement or the Department of Justice.

[[Page 70]]

    (i) Decides to seek an indictment of, or to file an information 
against, that employee on a federal criminal charge relating to the 
conduct concerning which representation was undertaken;
    (ii) Determines that the employee's actions do not reasonably appear 
to have been performed within the scope of his employment;
    (iii) Resolves any conflict described herein and tenders 
representation by Department of Justice attorneys;
    (iv) Determines that continued representation is not in the interest 
of the United States;
    (v) Terminates the retainer with the concurrence of the employee-
client for any reason.
    (d) Where reimbursement is provided for private counsel fees 
incurred by employees, the following limitations shall apply:
    (1) Reimbursement shall be limited to fees incurred for legal work 
that is determined to be in the interest of the United States. 
Reimbursement is not available for legal work that advances only the 
individual interests of the employee.
    (2) Reimbursement shall not be provided if at any time the Attorney 
General or his designee determines that the employee's actions do not 
reasonably appear to have been performed within the scope of his 
employment or that representation is no longer in the interest of the 
United States.
    (3) Reimbursement shall not be provided for fees incurred during any 
period of time for which representation by Department of Justice 
attorneys was tendered.
    (4) Reimbursement shall not be provided if the United States decides 
to seek an indictment of or to file an information against the employee 
seeking reimbursement, on a criminal charge relating to the conduct 
concerning which representation was undertaken.

[Order No. 970-82, 47 FR 8174, Feb. 25, 1982, as amended by Order No. 
1409-90, 55 FR 13130, Apr. 9, 1990]



Sec. 50.17  Ex parte communications in informal rulemaking proceedings.

    In rulemaking proceedings subject only to the procedural 
requirements of 5 U.S.C. 553:
    (a) A general prohibition applicable to all offices, boards, bureaus 
and divisions of the Department of Justice against the receipt of 
private, ex parte oral or written communications is undesirable, because 
it would deprive the Department of the flexibility needed to fashion 
rulemaking procedures appropriate to the issues involved, and would 
introduce a degree of formality that would, at least in most instances, 
result in procedures that are unduly complicated, slow, and expensive, 
and, at the same time, perhaps not conducive to developing all relevant 
information.
    (b) All written communications from outside the Department addressed 
to the merits of a proposed rule, received after notice of proposed 
informal rulemaking and in its course by the Department, its offices, 
boards, and bureaus, and divisions or their personnel participating in 
the decision, should be placed promptly in a file available for public 
inspection.
    (c) All oral communications from outside the Department of 
significant information or argument respecting the merits of a proposed 
rule, received after notice of proposed informal rulemaking and in its 
course by the Department, its offices, boards, bureaus, and divisions or 
their personnel participating in the decision, should be summarized in 
writing and placed promptly in a file available for public inspection.
    (d) The Department may properly withhold from the public files 
information exempt from disclosure under 5 U.S.C. 552.
    (e) The Department may conclude that restrictions on ex parte 
communications in particular rulemaking proceedings are necessitated by 
considerations of fairness or for other reasons.

[Order No. 801-78, 43 FR 43297, Sept. 25, 1978, as amended at Order No. 
1409-90, 55 FR 13130, April 9, 1990]



Sec. 50.18  [Reserved]



Sec. 50.19  Procedures to be followed by government attorneys prior to filing recusal or disqualification motions.

    The determination to seek for any reason the disqualification or 
recusal

[[Page 71]]

of a justice, judge, or magistrate is a most significant and sensitive 
decision. This is particularly true for government attorneys, who should 
be guided by uniform procedures in obtaining the requisite authorization 
for such a motion. This statement is designed to establish a uniform 
procedure.
    (a) No motion to recuse or disqualify a justice, judge, or 
magistrate (see, e.g., 28 U.S.C. 144, 455) shall be made or supported by 
any Department of Justice attorney, U.S. Attorney (including Assistant 
U.S. Attorneys) or agency counsel conducting litigation pursuant to 
agreement with or authority delegated by the Attorney General, without 
the prior written approval of the Assistant Attorney General having 
ultimate supervisory power over the action in which recusal or 
disqualification is being considered.
    (b) Prior to seeking such approval, Justice Department lawyer(s) 
handling the litigation shall timely seek the recommendations of the 
U.S. Attorney for the district in which the matter is pending, and the 
views of the client agencies, if any. Similarly, if agency attorneys are 
primarily handling any such suit, they shall seek the recommendations of 
the U.S. Attorney and provide them to the Department of Justice with the 
request for approval. In actions where the United States Attorneys are 
primarily handling the litigation in question, they shall seek the 
recommendation of the client agencies, if any, for submission to the 
Assistant Attorney General.
    (c) In the event that the conduct and pace of the litigation does 
not allow sufficient time to seek the prior written approval by the 
Assistant Attorney General, prior oral authorization shall be sought and 
a written record fully reflecting that authorization shall be 
subsequently prepared and submitted to the Assistant Attorney General.
    (d) Assistant Attorneys General may delegate the authority to 
approve or deny requests made pursuant to this section, but only to 
Deputy Assistant Attorneys General or an equivalent position.
    (e) This policy statement does not create or enlarge any legal 
obligations upon the Department of Justice in civil or criminal 
litigation, and it is not intended to create any private rights 
enforceable by private parties in litigation with the United States.

[Order No. 977-82, 47 FR 22094, May 21, 1982]



Sec. 50.20  Participation by the United States in court-annexed arbitration.

    (a) Considerations affecting participation in arbitration. (1) The 
Department recognizes and supports the general goals of court-annexed 
arbitrations, which are to reduce the time and expenses required to 
dispose of civil litigation. Experimentations with such procedures in 
appropriate cases can offer both the courts and litigants an opportunity 
to determine the effectiveness of arbitration as an alternative to 
traditional civil litigation.
    (2) An arbitration system, however, is best suited for the 
resolution of relatively simple factual issues, not for trying cases 
that may involve complex issues of liability or other unsettled legal 
questions. To expand an arbitration system beyond the types of cases for 
which it is best suited and most competent would risk not only a 
decrease in the quality of justice available to the parties but 
unnecessarily higher costs as well.
    (3) In particular, litigation involving the United States raises 
special concerns with respect to court-annexed arbitration programs. A 
mandatory arbitration program potentially implicates the principles of 
separation of powers, sovereign immunity, and the Attorney General's 
control over the process of settling litigation.
    (b) General rule consenting to arbitration consistent with the 
department's regulations. (1) Subject to the considerations set forth in 
the following paragraphs and the restrictions set forth in paragraphs 
(c) and (d), in a case assigned to arbitration or mediation under a 
local district court rule, the Department of Justice agrees to 
participate in the arbitration process under the local rule. The 
attorney for the government responsible for the case should take any 
appropriate steps in conducting the case to protect the interests of the 
United States.
    (2) Based upon its experience under arbitration programs to date, 
and the

[[Page 72]]

purposes and limitations of court-annexed arbitration, the Department 
generally endorses inclusion in a district's court-annexed arbitration 
program of civil actions--
    (i) In which the United States or a Department, agency, or official 
of the United States is a party, and which seek only money damages in an 
amount not in excess of $100,000, exclusive of interest and costs; and
    (ii) Which are brought (A) under the Federal Tort Claims Act, 28 
U.S.C. 1346(b), 2671 et seq., or (B) under the Longshoreman's and Harbor 
Worker's Compensation Act, 33 U.S.C. 905, or (C) under the Miller Act, 
40 U.S.C. 270(b).
    (3) In any other case in which settlement authority has been 
delegated to the U.S. Attorney under the regulations of the Department 
and the directives of the applicable litigation division and none of the 
exceptions to such delegation apply, the U.S. Attorney for the district, 
if he concludes that a settlement of the case upon the terms of the 
arbitration award would be appropriate, may proceed to settle the case 
accordingly.
    (4) Cases other than those described in paragraph (2) that are not 
within the delegated settlement authority of the U.S. Attorney for the 
district ordinarily are not appropriate for an arbitration process 
because the Department generally will not be able to act favorably or 
negatively in a short period of time upon a settlement of the case in 
accordance with the arbitration award. Therefore, this will result in a 
demand for trial de novo in a substantial proportion of such cases to 
preserve the interests of the United States.
    (5) The Department recommends that any district court's arbitration 
rule include a provision exempting any case from arbitration, sua sponte 
or on motion of a party, in which the objectives of arbitration would 
not appear to be realized, because the case involves complex or novel 
legal issues, or because legal issues predominate over factual issues, 
or for other good cause.
    (c) Objection to the imposition of penalties or sanctions against 
the United States for demanding trial de novo. (1) Under the principle 
of sovereign immunity, the United States cannot be held liable for costs 
or sanctions in litigation in the absence of a statutory provision 
waiving its immunity. In view of the statutory limitations on the costs 
payable by the United States (28 U.S.C. 2412(a), 2412(b), and 1920), the 
Department does not consent to provisions in any district's arbitration 
program providing for the United States or the Department, agency, or 
official named as a party to the action to pay any sanction for 
demanding a trial de novo--either as a deposit in advance or as a 
penalty imposed after the fact--which is based on the arbitrators' fees, 
the opposing party's attorneys' fees, or any other costs not authorized 
by statute to be awarded against the United States. This objection 
applies whether the penalty or sanction is required to be paid to the 
opposing party, to the clerk of the court, or to the Treasury of the 
United States.
    (2) In any case involving the United States that is designated for 
arbitration under a program pursuant to which such a penalty or sanction 
might be imposed against the United States, its officers or agents, the 
attorney for the government is instructed to take appropriate steps, by 
motion, notice of objection, or otherwise, to apprise the court of the 
objection of the United States to the imposition of such a penalty or 
sanction.
    (3) Should such a penalty or sanction actually be required of or 
imposed on the United States, its officers or agents, the attorney for 
the government is instructed to:
    (i) Advise the appropriate Assistant Attorney General of this 
development promptly in writing;
    (ii) Seek appropriate relief from the district court; and
    (iii) If necessary, seek authority for filing an appeal or petition 
for mandamus.

The Solicitor General, the Assistant Attorneys General, and the U.S. 
Attorneys are instructed to take all appropriate steps to resist the 
imposition of such penalties or sanctions against the United States.
    (d) Additional restrictions. (1) The Assistant Attorneys General, 
the U.S. Attorneys, and their delegates, have no authority to settle or 
compromise the interests of the United States in a case

[[Page 73]]

pursuant to an arbitration process in any respect that is inconsistent 
with the limitations upon the delegation of settlement authority under 
the Department's regulations and the directives of the litigation 
divisions. See 28 CFR part 0, subpart Y and appendix to subpart Y. The 
attorney for the government shall demand trial de novo in any case in 
which:
    (i) Settlement of the case on the basis of the amount awarded would 
not be in the best interests of the United States;
    (ii) Approval of a proposed settlement under the Department's 
regulations in accordance with the arbitration award cannot be obtained 
within the period allowed by the local rule for rejection of the award; 
or
    (iii) The client agency opposes settlement of the case upon the 
terms of the settlement award, unless the appropriate official of the 
Department approves a settlement of the case in accordance with the 
delegation of settlement authority under the Department's regulations.
    (2) Cases sounding in tort and arising under the Constitution of the 
United States or under a common law theory filed against an employee of 
the United States in his personal capacity for actions within the scope 
of his employment which are alleged to have caused injury or loss of 
property or personal injury or death are not appropriate for 
arbitration.
    (3) Cases for injunctive or declaratory relief are not appropriate 
for arbitration.
    (4) The Department reserves the right to seek any appropriate relief 
to which its client is entitled, including injunctive relief or a ruling 
on motions for judgment on the pleadings, for summary judgment, or for 
qualified immunity, or on issues of discovery, before proceeding with 
the arbitration process.
    (5) In view of the provisions of the Federal Rules of Evidence with 
respect to settlement negotiations, the Department objects to the 
introduction of the arbitration process or the arbitration award in 
evidence in any proceeding in which the award has been rejected and the 
case is tried de novo.
    (6) The Department's consent for participation in an arbitration 
program is not a waiver of sovereign immunity or other defenses of the 
United States except as expressly stated; nor is it intended to affect 
jursidictional limitations (e.g., the Tucker Act).
    (e) Notification of new or revised arbitration rules. The U.S. 
Attorney in a district which is considering the adoption of or has 
adopted a program of court-annexed arbitration including cases involving 
the United States shall:
    (1) Advise the district court of the provisions of this section and 
the limitations on the delegation of settlement authority to the United 
States Attorney pursuant to the Department's regulations and the 
directives of the litigation divisions; and
    (2) Forward to the Executive Office for United States Attorneys a 
notice that such a program is under consideration or has been adopted, 
or is being revised, together with a copy of the rules or proposed 
rules, if available, and a recommendation as to whether United States 
participation in the program as proposed, adopted, or revised, would be 
advisable, in whole or in part.

[Order No. 1109-85, 50 FR 40524, Oct. 4, 1985]



Sec. 50.21  Procedures governing the destruction of contraband drug evidence in the custody of Federal law enforcement authorities.

    (a) General. The procedures set forth below are intended as a 
statement of policy of the Department of Justice and will be applied by 
the Department in exercising its responsibilities under Federal law 
relating to the destruction of seized contraband drugs.
    (b) Purpose. This policy implements the authority of the Attorney 
General under title I, section 1006(c)(3) of the Anti-Drug Abuse Act of 
1986, Public Law 99-570 which is codified at 21 U.S.C. 881(f)(2), to 
direct the destruction, as necessary, of Schedule I and II contraband 
substances.
    (c) Policy. This regulation is intended to prevent the warehousing 
of large quantities of seized contraband drugs which are unnecessary for 
due process in criminal cases. Such stockpiling of contraband drugs 
presents inordinate security and storage problems which create 
additional economic burdens on

[[Page 74]]

limited law enforcement resources of the United States.
    (d) Definitions. As used in this subpart, the following terms shall 
have the meanings specified:
    (1) The term Contraband drugs are those controlled substances listed 
in Schedules I and II of the Controlled Substances Act seized for 
violation of that Act.
    (2) The term Marijuana is as defined in 21 U.S.C. 801(15) but does 
not include, for the purposes of this regulation, the derivatives 
hashish or hashish oil for purposes of destruction.
    (3) The term Representative sample means the exemplar for testing 
and a sample aggregate portion of the whole amount seized sufficient for 
current criminal evidentiary practice.
    (4) The term Threshold amount means:
    (i) Two kilograms of a mixture or substance containing a detectable 
amount of heroin;
    (ii) Ten kilograms of a mixture or substance containing a detectable 
amount of--
    (A) Coca leaves, except coca leaves and extracts of coca leaves from 
which cocaine, ecgonine, and derivatives of ecognine or their salts have 
been removed;
    (B) Cocaine, its salts, optical and geometric isomers, and salts of 
isomers;
    (C) Ecgonine, its derivatives, their salts, isomers, and salts of 
isomers; or
    (D) Any compound, mixture, or preparation which contains any 
quantity of any of the substances referred to in paragraphs (d)(4)(ii) 
(A) through (C) of this section;
    (iii) Ten kilograms of a mixture or substance described in paragraph 
(d)(4)(ii)(B) of this section which contains cocaine base;
    (iv) Two hundred grams of phencyclidine (PCP) or two kilograms of a 
mixture or substance containing a detectable amount of phencyclidine 
(PCP);
    (v) Twenty grams of a mixture or substance containing a detectable 
amount of Lysergic Acid Diethylamide (LSD);
    (vi) Eight hundred grams of a mixture or substance containing a 
detectable amount of N-phenyl-N[1-(2-phenylethyl)-4-piperidiny] 
propanamide (commonly known as fentanyl) or two hundred grams of a 
mixture or substance containing a detectable amount of any analogue of 
N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl propanamide; or
    (vii) Twenty kilograms of hashish or two kilograms of hashish oil 
(21 U.S.C. 841(b)(1)(D), 960(b)(4)).

In the event of any changes to section 401(b)(1) of the Controlled 
Substances Act (21 U.S.C. 841(b)(1) as amended occurring after the date 
of these regulations, the threshold amount of any substance therein 
listed, except marijuana, shall be twice the minimum amount required for 
the most severe mandatory minimum sentence.
    (e) Procedures. Responsibilities of the Federal Bureau of 
Investigation and Drug Enforcement Administration.

When contraband drug substances in excess of the threshold amount or in 
the case of marijuana a quantity in excess of the representative sample 
are seized pursuant to a criminal investigation and retained in the 
custody of the Federal Bureau of Investigation or Drug Enforcement 
Administration, the Agency having custody shall:
    (1) Immediately notify the appropriate U.S. Attorney, Assistant U.S. 
Attorney, or the responsible state/local prosecutor that the amount of 
seized contraband drug exceeding the threshold amount and its packaging, 
will be destroyed after sixty days from the date notice is provided of 
the seizures, unless the agency providing notice is requested in writing 
by the authority receiving notice not to destroy the excess contraband 
drug; and
    (2) Assure that appropriate tests of samples of the drug are 
conducted to determined the chemical nature of the contraband substance 
and its weight sufficient to serve as evidence before the trial courts 
of that jurisdiction; and
    (3) Photographically depict, and if requested by the appropriate 
prosecutorial authority, videotape, the contraband drugs as originally 
packaged or an appropriate display of the seized contraband drugs so as 
to create evidentiary exhibits for use at trial; and
    (4) Isolate and retain the appropriate threshold amounts of 
contraband drug evidence when an amount greater than

[[Page 75]]

the appropriate threshold amount has been seized, or when less than the 
appropriate threshold amounts of contraband drugs have been seized, the 
entire amount of the seizure, with the exception of marijuana, for which 
a representative sample shall be retained; and
    (5) Maintain the retained portions of the contraband drugs until the 
evidence is no longer required for legal proceedings, at which time it 
may be destroyed, first having obtained consent of the U.S. Attorney, an 
Assistant U.S. Attorney, or the responsible state/local prosecutor;
    (6) Notify the appropriate U.S. Attorney, Assistant U.S. Attorney, 
or the responsible state/local prosecutor to obtain consent to destroy 
the retained amount or representative sample whenever th e related 
suspect(s) has been a fugitive from justice for a period of five years. 
An exemplar sufficent for testing will be retained consistent with this 
section.
    (f) Procedures. Responsibilities of the U.S. Attorney or the 
District Attorney (or equivalent state/local prosecutorial authority). 
When so notified by the Federal Bureau of Investigation or the Drug 
Enforcement Administration of an intent to destroy excess contraband 
drugs, the U.S. Attorney or the District Attorney (or equivalent) may:
    (1) Agree to the destruction of the contraband drug evidence in 
excess of the threshold amount, or for marijuana in excess of the 
representative sample, prior to the normal sixty-day period. The U.S. 
Attorney, or the District Attorney (or equivalent) may delegate to his/
her assistants authority to enter into such agreement; or
    (2) Request an exception to the destruction policy in writing to the 
Special Agent in Charge of the responsible division prior to the end of 
the sixty-day period when retaining only the threshold amount or 
representative sample will significantly affect any legal proceedings; 
and
    (3) In the event of a denial of the request may appeal the denial to 
the Assistant Attorney General, Criminal Division. Such authority may 
not be redelegated. An appeal shall stay the destruction until the 
appeal is complete.
    (g) Supplementary regulations. The Federal Bureau of Investigation 
and the Drug Enforcement Administration are authorized to issue 
regulations and establish procedures consistent with this section.

[Order No. 1256-88, 53 FR 8453, Mar. 15, 1988]



Sec. 50.22  Young American Medals Program.

    (a) Scope. There are hereby established two medals, one to be known 
as the Young American Medal for Bravery and the other to be known as the 
Young American Medal for Service.
    (b) Young American Medal for Bravery. (1)(i) The Young American 
Medal for Bravery may be awarded to a person--
    (A) Who during a given calendar year has exhibited exceptional 
courage, attended by extraordinary decisiveness, presence of mind, and 
unusual swiftness of action, regardless of his or her own personal 
safety, in an effort to save or in saving the life of any person or 
persons in actual imminent danger;
    (B) Who was eighteen years of age or younger at the time of the 
occurrence; and
    (C) Who habitually resides in the United States (including its 
territories and possessions), but need not be a citizen thereof.
    (ii) These conditions must be met at the time of the event.
    (2) The act of bravery must have been public in nature and must have 
been acknowledged by the Governor, Chief Executive Officer of a State, 
county, municipality, or other political subdivision, or by a civic, 
educational, or religious institution, group, or society.
    (3) No more than two such medals may be awarded in any one calendar 
year.
    (c) Young American Medal for Service. (1) The Young American Medal 
for Service may be awarded to any citizen of the United States eighteen 
years of age or younger at the time of the occurrence, who has achieved 
outstanding or unusual recognition for character and service during a 
given calendar year.
    (2) Character attained and service accomplished by a candidate for 
this medal must have been such as to make

[[Page 76]]

his or her achievement worthy of public report. The outstanding and 
unusual recognition of the candidate's character and service must have 
been public in nature and must have been acknowledged by the Governor, 
Chief Executive Officer of a State, county, municipality, or other 
political subdivision, or by a civic, educational, or religious 
institution, group, or society.
    (3) The recognition of the character and service upon which the 
award of the Medal for Service is based must have been accorded 
separately and apart from the Young American Medals program and must not 
have been accorded for the specific and announced purpose of rendering a 
candidate eligible, or of adding to a candidate's qualifications, for 
the award of the Young American Medal for Service.
    (4) No more than two such medals may be awarded in any one calendar 
year.
    (d) Eligibility. (1) The act or acts of bravery and the recognition 
for character and service that make a candidate eligible for the 
respective medals must have occurred during the calendar year for which 
the award is made.
    (2) A candidate may be eligible for both medals in the same year. 
Moreover, the receipt of either medal in any year will not affect a 
candidate's eligibility for the award of either or both of the medals in 
a succeeding year.
    (3) Acts of bravery performed and recognition of character and 
service achieved by persons serving in the Armed Forces, which arise 
from or out of military duties, shall not make a candidate eligible for 
either of the medals, provided, however, that a person serving in the 
Armed Forces shall be eligible to receive either or both of the medals 
if the act of bravery performed or the recognition for character and 
service achieved is on account of acts and service performed or rendered 
outside of and apart from military duties.
    (e) Request for information. (1) A recommendation in favor of a 
candidate for the award of a Young American Medal for Bravery or for 
Service must be accompanied by:
    (i) A full and complete statement of the candidate's act or acts of 
bravery or recognized character and service (including the times and 
places) that supports qualification of the candidate to receive the 
appropriate medal;
    (ii) Statements by witnesses or persons having personal knowledge of 
the facts surrounding the candidate's act or acts of bravery or 
recognized character and service, as required by the respective medals;
    (iii) A certified copy of the candidate's birth certificate, or, if 
no birth certificate is available, other authentic evidence of the date 
and place of the candidate's birth; and
    (iv) A biographical sketch of the candidate, including information 
as to his or her citizenship or habitual residence, as may be required 
by the respective medals.
    (f) Procedure. (1)(i) All recommendations and accompanying documents 
and papers should be submitted to the Governor or Chief Executive 
Officer of the State, territory, or possession of the United States 
where the candidate's act or acts of bravery or recognized character and 
service were demonstrated. In the case of the District of Columbia, the 
recommendations should be submitted to the Mayor of the District of 
Columbia.
    (ii) If the act or acts of bravery or recognized character and 
service did not occur within the boundaries of any State, territory, or 
possession of the United States, the papers should be submitted to the 
Governor or Chief Executive Officer of the territory or other possession 
of the United States wherein the candidate habitually maintains his or 
her residence.
    (2) The Governor or Chief Executive Officer, after considering the 
various recommendations received after the close of the pertinent 
calendar year, may nominate therefrom no more than two candidates for 
the Young American Medal for Bravery and no more than two candidates for 
the Young American Medal for Service. Nominated individuals should have, 
in the opinion of the appropriate official, shown by the facts and 
circumstances to be the most worthy and qualified candidates from the 
jurisdiction to receive consideration for awards of the above-named 
medals.

[[Page 77]]

    (3) Nominations of candidates for either medal must be submitted no 
later than 120 days after notification that the Department of Justice is 
seeking nominations under this program for a specific calendar year. 
Each nomination must contain the necessary documentation establishing 
eligibility, must be submitted by the Governor or Chief Executive 
Officer, together with any comments, and should be submitted to the 
address published in the notice.
    (4) Nominations of candidates for medals will be considered only 
when received from the Governor or Chief Executive Officer of a State, 
territory, or possession of the United States.
    (5) The Young American Medals Committee will select, from 
nominations properly submitted, those candidates who are shown by the 
facts and circumstances to be eligible for the award of the medals. The 
Committee shall make recommendations to the Attorney General based on 
its evaluation of the nominees. Upon consideration of these 
recommendations, the Attorney General may select up to the maximum 
allowable recipients for each medal for the calendar year.
    (g) Presentation. (1) The Young American Medal for Bravery and the 
Young American Medal for Service will be presented personally by the 
President of the United States to the candidates selected. These medals 
will be presented in the name of the President and the Congress of the 
United States. Presentation ceremonies shall be held at such times and 
places selected by the President in consultation with the Attorney 
General.
    (2) The Young American Medals Committee will officially designate 
two adults (preferably the parents of the candidate) to accompany each 
candidate selected to the presentation ceremonies. The candidates and 
persons designated to accompany them will be furnished transportation 
and other appropriate allowances.
    (3) There shall be presented to each recipient an appropriate 
Certificate of Commendation stating the circumstances under which the 
act of bravery was performed or describing the outstanding recognition 
for character and service, as appropriate for the medal awarded. The 
Certificate will bear the signature of the President of the United 
States and the Attorney General of the United States.
    (4) There also shall be presented to each recipient of a medal, a 
miniature replica of the medal awarded in the form of a lapel pin.
    (h) Posthumous awards. In cases where a medal is awarded 
posthumously, the Young American Medals Committee will designate the 
father or mother of the deceased or other suitable person to receive the 
medal on behalf of the deceased. The decision of the Young American 
Medals Committee in designating the person to receive the posthumously 
awarded medal, on behalf of the deceased, shall be final.
    (i) Young American Medals Committee. The Young American Medals 
Committee shall be represented by the following:
    (1) Director of the FBI, Chairman;
    (2) Administrator of the Drug Enforcement Administration, Member;
    (3) Director of the U.S. Marshals Service, Member; and
    (4) Assistant Attorney General, Office of Justice Programs, Member 
and Executive Secretary.

(Authority: The United States Department of Justice is authorized under 
42 U.S.C. 1921 et seq. to promulgate rules and regulations establishing 
medals, one for bravery and one for service. This authority was enacted 
by chapter 520 of Pub. L. 81-638 (August 3, 1950).)

[61 FR 49260, Sept. 19, 1996]



Sec. 50.23  Policy against entering into final settlement agreements or consent decree that are subject to confidentiality provisions and against seeking or 
          concurring in the sealing of such documents.

    (a) It is the policy of the Department of Justice that, in any civil 
matter in which the Department is representing the interests of the 
United States or its agencies, it will not enter into final settlement 
agreements or consent decrees that are subject to confidentiality 
provisions, nor will it seek or concur in the sealing of such documents. 
This policy flows from the principle of openness in government and is

[[Page 78]]

consistent with the Department's policies regarding openness in judicial 
proceedings (see 28 CFR 50.9) and the Freedom of Information Act (see 
Memorandum for Heads of Departments and Agencies from the Attorney 
General Re: The Freedom of Information Act (Oct. 4, 1993)).
    (b) There may be rare circumstances that warrant an exception to 
this general rule. In determining whether an exception is appropriate, 
any such circumstances must be considered in the context of the public's 
strong interest in knowing about the conduct of its Government and 
expenditure of its resources. The existence of such circumstances must 
be documented as part of the approval process, and any confidentiality 
provision must be drawn as narrowly as possible. Non-delegable approval 
authority to determine that an exception justifies use of a 
confidentiality provision in, or seeking or concurring in the sealing 
of, a final settlement or consent decree resides with the relevant 
Assistant Attorney General or United States Attorney, unless authority 
to approve the settlement itself lies with a more senior Department 
official, in which case the more senior official will have such approval 
authority.
    (c) Regardless of whether particular information is subject to a 
confidentiality provision or to seal, statutes and regulations may 
prohibit its disclosure from Department of Justice files. Thus, before 
releasing any information, Department attorneys should consult all 
appropriate statutes and regulations (e.g., 5 U.S.C. 552a (Privacy Act); 
50 U.S.C. 403-3(c)(6) (concerning intelligence sources and methods), and 
Execution Order 12958 (concerning national security information). In 
particular, in matters involving individuals, the Privacy Act regulates 
disclosure of settlement agreements that have not been made part of the 
court record.
    (d) The principles set forth in this section are intended to provide 
guidance to attorneys for the Government and are not intended to create 
or recognize any legally enforceable right in any person.

[Order No. 2270-99, 64 FR 59122, Nov. 2, 1999]



Sec. 50.24  Annuity broker minimum qualifications.

    (a) Minimum standards. The Civil Division, United States Department 
of Justice, shall establish a list of annuity brokers who meet minimum 
qualifications for providing annuity brokerage services in connection 
with structured settlements entered by the United States. Those 
qualifications are as follows:
    (1) The broker must have a current license issued by at least one 
State, the District of Columbia, or a Territory of the United States as 
a life insurance agent, producer, or broker;
    (2) The broker must have a current license or appointment issued by 
at least one life insurance company to sell its structured settlement 
annuity contracts or to act as a structured settlement consultant or 
broker for the company;
    (3) The broker must be currently covered by an Errors and Omissions 
insurance policy, or an equivalent form of insurance;
    (4) The broker must never have had a license to be a life insurance 
agent, producer, or broker revoked, rescinded, or suspended for any 
reason or for any period of time;
    (5) The broker must not have been convicted of a felony; and
    (6) The broker must have had substantial experience in each of the 
past three years in providing structured settlement brokerage services 
to or on behalf of defendants or their counsel.
    (b) Procedures for inclusion on the list. (1) An annuity broker who 
desires to be included on the list must submit a ``Declaration'' that he 
or she has reviewed the list of minimum qualifications set forth in 
paragraph (a) of this section and that he or she meets those minimum 
qualifications. A sample of the Declaration for annuity brokers to 
submit is available from the Civil Division's Web site (http://
www.usdoj.gov/civil/home.html) or by written request to the address in 
this section. These minimum qualifications must be continually met for a 
broker who has been included on the list to remain included when the 
list is updated thereafter. The Declaration must be executed under 
penalty of perjury in a manner specified in 28 U.S.C. 1746.

[[Page 79]]

    (2) Each broker must submit a new Declaration annually to be 
included on updated lists. For a broker to be included on the initial 
list to be established by May 1, 2003, the Torts Branch, Civil Division, 
must receive the broker's Declaration no later than April 24, 2003. If 
the broker wishes to be included on updated lists, the Torts Branch must 
receive a new Declaration from the broker between January 1 and April 10 
of each successive calendar year. After the Declaration is completed and 
signed, the original must be mailed to the United States Department of 
Justice, Civil Division, FTCA Staff, Post Office Box 888, Benjamin 
Franklin Station, Washington, DC 20044. The Department of Justice will 
not accept a photocopy or facsimile of the Declaration.
    (3) A Declaration will not be accepted by the Department of Justice 
unless it is complete and has been signed by the individual annuity 
broker requesting inclusion on the list. A Declaration that is 
incomplete or has been altered, amended, or changed in any respect from 
the Declaration at the Civil Division's Web site will not be accepted by 
the Department of Justice. Such a Declaration will be returned to the 
annuity broker who submitted it, and the Department of Justice will take 
no further action on the request for inclusion on the list until the 
defect in the Declaration has been cured by the annuity broker.
    (4) The Department of Justice will retain a complete Declaration 
signed and filed by an annuity broker requesting to be on the list. 
Because this rule does not require the submission of any additional 
information, the Department retains discretion to dispose of additional 
information or documentation provided by an annuity broker.
    (5) The Department of Justice will not accept a Declaration 
submitted by an annuity company or by someone on behalf of another 
individual or group of individuals. Each individual annuity broker who 
desires to be included on the list must submit his or her own 
Declaration.
    (6) An annuity broker whose name appears on the list incorrectly may 
submit a written request that his or her name be corrected. An annuity 
broker whose name appears on the list may submit a written request that 
his or her name be removed from the list.
    (7) To the extent practicable, a name correction or deletion will 
appear on the next revision of the list immediately after receipt of the 
written request for a name correction or deletion. A written request for 
a name correction or deletion must be mailed to the United States 
Department of Justice, Civil Division, FTCA Staff, Post Office Box 888, 
Benjamin Franklin Station, Washington, DC 20044. Facsimiles will not be 
accepted.
    (8) The list of annuity brokers established pursuant to this section 
will be updated periodically, but not more often than twice every 
calendar year, beginning in calendar year 2004.
    (c) Disclaimers. (1) The inclusion of an annuity broker on the list 
signifies only that the individual declared under penalty of perjury 
that he or she meets the minimum qualifications required by the Attorney 
General for providing annuity brokerage services in connection with 
structured settlements entered into by the United States. Because the 
decision to include an individual annuity broker on the list is based 
solely and exclusively on the Declaration submitted by the annuity 
broker, the appearance of an annuity broker's name on the list does not 
signify that the annuity broker actually meets those minimum 
qualifications or is otherwise competent to provide structured 
settlement brokerage services to the United States. No preferential 
consideration will be given to an annuity broker appearing on the list 
except to the extent that United States Attorneys utilize the list 
pursuant to section 11015(b) of Public Law 107-273.
    (2) By submitting a Declaration to the Department of Justice, the 
individual annuity broker agrees that the Declaration and the list each 
may be made public in its entirety, and the annuity broker expressly 
consents to such release and disclosure of the Declaration and list.

[Order No. 2667-2003, 68 FR 18120, Apr. 15, 2003]

[[Page 80]]



PART 51--PROCEDURES FOR THE ADMINISTRATION OF SECTION 5 OF THE VOTING RIGHTS ACT OF 1965, AS AMENDED--Table of Contents




                      Subpart A--General Provisions

Sec.
51.1  Purpose.
51.2  Definitions.
51.3  Delegation of authority.
51.4  Date used to determine coverage; list of covered jurisdictions.
51.5  Termination of coverage (bailout).
51.6  Political subunits.
51.7  Political parties.
51.8  Section 3 coverage.
51.9  Computation of time.
51.10  Requirement of action for declaratory judgment or submission to 
          the Attorney General.
51.11  Right to bring suit.
51.12  Scope of requirement.
51.13  Examples of changes.
51.14  Recurrent practices.
51.15  Enabling legislation and contingent or nonuniform requirements.
51.16  Distinction between changes in procedure and changes in 
          substance.
51.17  Special elections.
51.18  Court-ordered changes.
51.19  Request for notification concerning voting litigation.

      Subpart B--Procedures for Submission to the Attorney General

51.20  Form of submissions.
51.21  Time of submissions.
51.22  Premature submissions.
51.23  Party and jurisdiction responsible for making submissions.
51.24  Address for submissions.
51.25  Withdrawal of submissions.

                   Subpart C--Contents of Submissions

51.26  General.
51.27  Required contents.
51.28  Supplemental contents.

          Subpart D--Communications From Individuals and Groups

51.29  Communications concerning voting changes.
51.30  Action on communications from individuals or groups.
51.31   Communications concerning voting suits.
51.32  Establishment and maintenance of registry of interested 
          individuals and groups.

                  Subpart E--Processing of Submissions

51.33  Notice to registrants concerning submissions.
51.34  Expedited consideration.
51.35  Disposition of inappropriate submissions.
51.36  Release of information concerning submissions.
51.37  Obtaining information from the submitting authority.
51.38  Obtaining information from others.
51.39  Supplementary submissions.
51.40  Failure to complete submissions.
51.41  Notification of decision not to object.
51.42  Failure of the Attorney General to respond.
51.43  Reexamination of decision not to object.
51.44  Notification of decision to object.
51.45  Request for reconsideration.
51.46  Reconsideration of objection at the instance of the Attorney 
          General.
51.47  Conference.
51.48  Decision after reconsideration.
51.49  Absence of judicial review.
51.50  Records concerning submissions.

            Subpart F--Determinations by the Attorney General

51.51  Purpose of the subpart.
51.52  Basic standard.
51.53  Information considered.
51.54  Discriminatory effect.
51.55  Consistency with constitutional and statutory requirements.
51.56  Guidance from the courts.
51.57  Relevant factors.
51.58  Representation.
51.59  Redistrictings.
51.60  Changes in electoral systems.
51.61  Annexations.

                          Subpart G--Sanctions

51.62  Enforcement by the Attorney General.
51.63  Enforcement by private parties.
51.64  Bar to termination of coverage (bailout).

                Subpart H--Petition To Change Procedures

51.65  Who may petition.
51.66  Form of petition.
51.67  Disposition of petition.

Appendix to Part 51--Jurisdictions Covered Under Section 4(b) of the 
          Voting Rights Act, as Amended

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1973c.

    Source: 52 FR 490, Jan. 6, 1987, unless otherwise noted.

[[Page 81]]



                      Subpart A--General Provisions



Sec. 51.1  Purpose.

    (a) Section 5 of the Voting Rights Act of 1965, as amended, 42 
U.S.C. 1973c, prohibits the enforcement in any jurisdiction covered by 
section 4(b) of the Act, 42 U.S.C. 1973b(b), of any voting qualification 
or prerequisite to voting, or standard, practice, or procedure with 
respect to voting different from that in force or effect on the date 
used to determine coverage, until either:
    (1) A declaratory judgment is obtained from the U.S. District Court 
for the District of Columbia that such qualification, prerequisite, 
standard, practice, or procedure does not have the purpose and will not 
have the effect of denying or abridging the right to vote on account of 
race, color, or membership in a language minority group, or
    (2) It has been submitted to the Attorney General and the Attorney 
General has interposed no objection within a 60-day period following 
submission.
    (b) In order to make clear the responsibilities of the Attorney 
General under section 5 and the interpretation of the Attorney General 
of the responsibility imposed on others under this section, the 
procedures in this part have been established to govern the 
administration of section 5.



Sec. 51.2  Definitions.

    As used in this part--
    Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended by 
the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act 
Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act, 
84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400, 
and the Voting Rights Act Amendments of 1982, 96 Stat. 131, 42 U.S.C. 
1973 et seq. Section numbers, such as ``section 14(c)(3),'' refer to 
sections of the Act.
    Attorney General means the Attorney General of the United States or 
the delegate of the Attorney General.
    Change affecting voting means any voting qualification, prerequisite 
to voting, or standard, practice, or procedure with respect to voting 
different from that in force or effect on the date used to determine 
coverage under section 4(b) and includes, inter alia, the examples given 
in Sec. 51.13.
    Covered jurisdiction is used to refer to a State, where the 
determination referred to in Sec. 51.4 has been made on a statewide 
basis, and to a political subdivision, where the determination has not 
been made on a statewide basis.
    Language minorities or language minority group is used, as defined 
in the Act, to refer to persons who are American Indian, Asian American, 
Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and 203(e)). 
See 28 CFR part 55, Interpretative Guidelines: Implementation of the 
Provisions of the Voting Rights Act Regarding Language Minority Groups.
    Political subdivision is used, as defined in the Act, to refer to 
``any county or parish, except that where registration for voting is not 
conducted under the supervision of a county or parish, the term shall 
include any other subdivision of a State which conducts registration for 
voting.'' (Section 14(c)(2)).
    Preclearance is used to refer to the obtaining of the declaratory 
judgment described in section 5, to the failure of the Attorney General 
to interpose an objection pursuant to section 5, or to the withdrawal of 
an objection by the Attorney General pursuant to Sec. 51.48(b).
    Submission is used to refer to the written presentation to the 
Attorney General by an appropriate official of any change affecting 
voting.
    Submitting authority means the jurisdiction on whose behalf a 
submission is made.
    Vote and voting are used, as defined in the Act, to include ``all 
action necessary to make a vote effective in any primary, special, or 
general election, including, but not limited to, registration, listing 
pursuant to this Act, or other action required by law prerequisite to 
voting, casting a ballot, and having such ballot counted properly and 
included in the appropriate totals of votes cast with respect to 
candidates for public or party office and propositions for which votes 
are received in an election.'' (Section 14(c)(1)).



Sec. 51.3  Delegation of authority.

    The responsibility and authority for determinations under section 5 
have

[[Page 82]]

been delegated by the Attorney General to the Assistant Attorney 
General, Civil Rights Division. With the exception of objections and 
decisions following the reconsideration of objections, the Chief of the 
Voting Section is authorized to act on behalf of the Assistant Attorney 
General.



Sec. 51.4  Date used to determine coverage; list of covered jurisdictions.

    (a) The requirement of section 5 takes effect upon publication in 
the Federal Register of the requisite determinations of the Director of 
the Census and the Attorney General under section 4(b). These 
determinations are not reviewable in any court. (Section 4(b)).
    (b) Section 5 requires the preclearance of changes affecting voting 
made since the date used for the determination of coverage. For each 
covered jurisdiction that date is one of the following: November 1, 
1964; November 1, 1968; or November 1, 1972.
    (c) The appendix to this part contains a list of covered 
jurisdictions, together with the applicable date used to determine 
coverage and the Federal Register citation for the determination of 
coverage.



Sec. 51.5  Termination of coverage (bailout).

    A covered jurisdiction or a political subdivision of a covered State 
may terminate the application of section 5 (or bail out) by obtaining 
the declaratory judgment described in section 4(a) of the Act.



Sec. 51.6  Political subunits.

    All political subunits within a covered jurisdiction (e.g., 
counties, cities, school districts) are subject to the requirement of 
section 5.



Sec. 51.7  Political parties.

    Certain activities of political parties are subject to the 
preclearance requirement of section 5. A change affecting voting 
effected by a political party is subject to the preclearance 
requirement:
    (a) If the change relates to a public electoral function of the 
party and
    (b) If the party is acting under authority explicitly or implicitly 
granted by a covered jurisdiction or political subunit subject to the 
preclearance requirement of section 5.

For example, changes with respect to the recruitment of party members, 
the conduct of political campaigns, and the drafting of party platforms 
are not subject to the preclearance requirement. Changes with respect to 
the conduct of primary elections at which party nominees, delegates to 
party conventions, or party officials are chosen are subject to the 
preclearance requirement of section 5. Where appropriate the term 
``jurisdiction'' (but not ``covered jurisdiction'') includes political 
parties.



Sec. 51.8  Section 3 coverage.

    Under section 3(c) of the Act, a court in voting rights litigation 
can order as relief that a jurisdiction not subject to the preclearance 
requirement of section 5 preclear its voting changes by submitting them 
either to the court or to the Attorney General. Where a jurisdiction is 
required under section 3(c) to preclear its voting changes, and it 
elects to submit the proposed changes to the Attorney General for 
preclearance, the procedures in this part will apply.



Sec. 51.9  Computation of time.

    (a) The Attorney General shall have 60 days in which to interpose an 
objection to a submitted change affecting voting.
    (b) Except as specified in Secs. 51.37, 51.39, and 51.42 the 60-day 
period shall commence upon receipt by the Department of Justice of a 
submission.
    (c) The 60-day period shall mean 60 calendar days, with the day of 
receipt of the submission not counted. If the final day of the period 
should fall on a Saturday, Sunday, any day designated as a holiday by 
the President or Congress of the United States, or any other day that is 
not a day of regular business for the Department of Justice, the 
Attorney General shall have until the close of the next full business 
day in which to interpose an objection. The date of the Attorney 
General's response shall be the date on which it is mailed to the 
submitting authority.

[[Page 83]]



Sec. 51.10  Requirement of action for declaratory judgment or submission to the Attorney General.

    Section 5 requires that, prior to enforcement of any change 
affecting voting, the jurisdiction that has enacted or seeks to 
administer the change must either:
    (a) Obtain a judicial determination from the U.S. District Court for 
the District of Columbia that denial or abridgment of the right to vote 
on account of race, color, or membership in a language minority group is 
not the purpose and will not be the effect of the change or
    (b) Make to the Attorney General a proper submission of the change 
to which no objection is interposed.

It is unlawful to enforce a change affecting voting without obtaining 
preclearance under section 5. The obligation to obtain such preclearance 
is not relieved by unlawful enforcement.

[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987]



Sec. 51.11  Right to bring suit.

    Submission to the Attorney General does not affect the right of the 
submitting authority to bring an action in the U.S. District Court for 
the District of Columbia for a declaratory judgment that the change 
affecting voting does not have the prohibited discriminatory purpose or 
effect.



Sec. 51.12  Scope of requirement.

    Any change affecting voting, even though it appears to be minor or 
indirect, returns to a prior practice or procedure, ostensibly expands 
voting rights, or is designed to remove the elements that caused 
objection by the Attorney General to a prior submitted change, must meet 
the section 5 preclearance requirement.



Sec. 51.13  Examples of changes.

    Changes affecting voting include, but are not limited to, the 
following examples:
    (a) Any change in qualifications or eligibility for voting.
    (b) Any change concerning registration, balloting, and the counting 
of votes and any change concerning publicity for or assistance in 
registration or voting.
    (c) Any change with respect to the use of a language other than 
English in any aspect of the electoral process.
    (d) Any change in the boundaries of voting precincts or in the 
location of polling places.
    (e) Any change in the constituency of an official or the boundaries 
of a voting unit (e.g., through redistricting, annexation, deannexation, 
incorporation, reapportionment, changing to at-large elections from 
district elections, or changing to district elections from at-large 
elections).
    (f) Any change in the method of determining the outcome of an 
election (e.g., by requiring a majority vote for election or the use of 
a designated post or place system).
    (g) Any change affecting the eligibility of persons to become or 
remain candidates, to obtain a position on the ballot in primary or 
general elections, or to become or remain holders of elective offices.
    (h) Any change in the eligibility and qualification procedures for 
independent candidates.
    (i) Any change in the term of an elective office or an elected 
official or in the offices that are elective (e.g., by shortening the 
term of an office, changing from election to appointment or staggering 
the terms of offices).
    (j) Any change affecting the necessity of or methods for offering 
issues and propositions for approval by referendum.
    (k) Any change affecting the right or ability of persons to 
participate in political campaigns which is effected by a jurisdiction 
subject to the requirement of section 5.



Sec. 51.14  Recurrent practices.

    Where a jurisdiction implements a practice or procedure periodically 
or upon certain established contingencies, a change occurs:
    (a) The first time such a practice or procedure is implemented by 
the jurisdiction,
    (b) When the manner in which such a practice or procedure is 
implemented by the jurisdiction is changed, or

[[Page 84]]

    (c) When the rules for determining when such a practice or procedure 
will be implemented are changed.

The failure of the Attorney General to object to a recurrent practice or 
procedure constitutes preclearance of the future use of the practice or 
procedure if its recurrent nature is clearly stated or described in the 
submission or is expressly recognized in the final response of the 
Attorney General on the merits of the submission.



Sec. 51.15  Enabling legislation and contingent or nonuniform requirements.

    (a) With respect to legislation (1) that enables or permits the 
State or its political subunits to institute a voting change or (2) that 
requires or enables the State or its political sub-units to institute a 
voting change upon some future event or if they satisfy certain 
criteria, the failure of the Attorney General to interpose an objection 
does not exempt from the preclearance requirement the implementation of 
the particular voting change that is enabled, permitted, or required, 
unless that implementation is explicitly included and described in the 
submission of such parent legislation.
    (b) For example, such legislation includes--
    (1) Legislation authorizing counties, cities, school districts, or 
agencies or officials of the State to institute any of the changes 
described in Sec. 51.13,
    (2) Legislation requiring a political subunit that chooses a certain 
form of government to follow specified election procedures,
    (3) Legislation requiring or authorizing political subunits of a 
certain size or a certain location to institute specified changes,
    (4) Legislation requiring a political subunit to follow certain 
practices or procedures unless the subunit's charter or ordinances 
specify to the contrary.



Sec. 51.16  Distinction between changes in procedure and changes in substance.

    The failure of the Attorney General to interpose an objection to a 
procedure for instituting a change affecting voting does not exempt the 
substantive change from the preclearance requirement. For example, if 
the procedure for the approval of an annexation is changed from city 
council approval to approval in a referendum, the preclearance of the 
new procedure does not exempt an annexation accomplished under the new 
procedure from the preclearance requirement.



Sec. 51.17  Special elections.

    (a) The conduct of a special election (e.g., an election to fill a 
vacancy; an initiative, referendum, or recall election; or a bond issue 
election) is subject to the preclearance requirement to the extent that 
the jurisdiction makes changes in the practices or procedures to be 
followed.
    (b) Any discretionary setting of the date for a special election or 
scheduling of events leading up to or following a special election is 
subject to the preclearance requirement.
    (c) A jurisdiction conducting a referendum election to ratify a 
change in a practice or procedure that affects voting may submit the 
change to be voted on at the same time that it submits any changes 
involved in the conduct of the referendum election. A jurisdiction 
wishing to receive preclearance for the change to be ratified should 
state clearly that such preclearance is being requested. See Sec. 51.22 
of this part.



Sec. 51.18  Court-ordered changes.

    (a) In general. Changes affecting voting that are ordered by a 
Federal court are subject to the preclearance requirement of section 5 
to the extent that they reflect the policy choices of the submitting 
authority.
    (b) Subsequent changes. Where a court-ordered change is not itself 
subject to the preclearance requirement, subsequent changes necessitated 
by the court order but decided upon by the jurisdiction remain subject 
to preclearance. For example, voting precinct and polling place changes 
made necessary by a court-ordered redistricting plan are subject to 
section 5 review.
    (c) In emergencies. A Federal court's authorization of the emergency 
interim use without preclearance of a voting change does not exempt from

[[Page 85]]

section 5 review any use of the practice not explicitly authorized by 
the court.



Sec. 51.19  Request for notification concerning voting litigation.

    A jurisdiction subject to the preclearance requirement of section 5 
that becomes involved in any litigation concerning voting is requested 
promptly to notify the Chief, Voting Section, Civil Rights Division, 
Department of Justice, P.O. Box 66128, Washington, DC 20035-6128. Such 
notification will not be considered a submission under section 5.

[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409, 
Sept. 3, 1987]



      Subpart B--Procedures for Submission to the Attorney General



Sec. 51.20  Form of submissions.

    (a) Submissions may be made in letter or any other written form.
    (b) The Attorney General will accept certain machine readable data 
in the following forms of magnetic media: 3\1/2\ 1.4 megabyte 
MS-DOS formatted diskettes; 5 \1/4\ 1.2 megabyte MS-DOS 
formatted floppy disks; nine-track tape (1600/6250 BPI). Unless 
requested by the Attorney General, data provided on magnetic media need 
not be provided in hard copy.
    (c) All magnetic media shall be clearly labelled with the following 
information:
    (1) Submitting authority.
    (2) Name, address, title, and telephone number of contact person.
    (3) Date of submission cover letter.
    (4) Statement identifying the voting change(s) involved in the 
submission.

The label shall be affixed to each magnetic medium, and the information 
included on the label shall also be contained in a documentation file on 
the magnetic medium. If the information identified above is provided as 
a disk operating system (DOS) file, it shall be formatted in a standard 
American Standard Code for Information Interchange (ASCII) character 
code, with a line feed or carriage return control character starting in 
position 80. If the information identified above is provided other than 
as DOS files, it shall be formatted as ASCII text (or Extended Binary 
Coded Decimal Interchange Code (EBCDIC) if IBM standard labels are 
used), 80 byte fixed record length, blocked in a multiple of 80 with a 
blocksize no larger than 32 kilobytes, and with no carriage return or 
line feed.
    (d) Each magnetic medium (floppy disk or tape) provided must be 
accompanied by a printed description of its contents, including an 
identification by name and/or location of each data file that is 
contained on the medium, a detailed record layout for each such file, a 
record count for each such file, and a full description of the magnetic 
medium format.
    (e) All data files shall be provided in a fixed record-length format 
using alphanumeric ASCII values. The first 50 records of each such file 
shall be printed on hard copy and shall be attached to the printed 
description of the file. Proprietary and/or commercial software system 
data files (e.g. SAS, SPSS, dBase, Lotus 1-2-3) and data files 
containing compressed data or binary data fields will not be accepted. 
Nine-track tapes shall be clearly marked with printed labels to indicate 
their density, and manner of labelling (ANSI, IBM, or unlabelled). The 
printed label shall also include the record count, the record length, 
the blocksize, the dataset name (DSN) if it is a labelled tape, and the 
file number of each file on the tape.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR 51836, 
Oct. 16, 1991]



Sec. 51.21  Time of submissions.

    Changes affecting voting should be submitted as soon as possible 
after they become final.



Sec. 51.22  Premature submissions.

    The Attorney General will not consider on the merits:
    (a) Any proposal for a change affecting voting submitted prior to 
final enactment or administrative decision or
    (b) Any proposed change which has a direct bearing on another change 
affecting voting which has not received section 5 preclearance.

However, with respect to a change for which approval by referendum, a 
State

[[Page 86]]

or Federal court or a Federal agency is required, the Attorney General 
may make a determination concerning the change prior to such approval if 
the change is not subject to alteration in the final approving action 
and if all other action necessary for approval has been taken.



Sec. 51.23  Party and jurisdiction responsible for making submissions.

    (a) Changes affecting voting shall be submitted by the chief legal 
officer or other appropriate official of the submitting authority or by 
any other authorized person on behalf of the submitting authority. When 
one or more counties or other political subunits within a State will be 
affected, the State may make a submission on their behalf. Where a State 
is covered as a whole, State legislation (except legislation of local 
applicability) or other changes undertaken or required by the State 
shall be submitted by the State.
    (b) A change effected by a political party (see Sec. 51.7) may be 
submitted by an appropriate official of the political party.



Sec. 51.24  Address for submissions.

    (a) Delivery by U.S. Postal Service. Submissions sent to the 
Attorney General via the U.S. Postal Service shall be addressed to the 
Chief, Voting Section, Civil Rights Division, Department of Justice, 
P.O. Box 66128, Washington, DC 20035-6128.
    (b) Delivery by other means. Submissions sent to the Attorney 
General by carriers other than the U.S. Postal Service should be 
addressed or may be delivered to the Chief, Voting Section, Civil Rights 
Division, Department of Justice, 320 First Street, NW., room 818A, 
Washington, DC 20001.
    (c) Special marking. The envelope and first page of the submission 
shall be clearly marked: Submission under section 5 of the Voting Rights 
Act.

[Order 1214-87, 52 FR 33409, Sept. 3, 1987, as amended by Order No. 
1793-93, 58 FR 51225, Oct. 1, 1993]



Sec. 51.25  Withdrawal of submissions.

    (a) A jurisdiction may withdraw a submission at any time prior to a 
final decision by the Attorney General. Notice of the withdrawal of a 
submission must be made in writing, addressed to the Chief, Voting 
Section, as specified in Sec. 51.24 of this part. The submission shall 
be deemed withdrawn upon receipt of the notice.
    (b) Notice of withdrawals will be given to interested parties 
registered under Sec. 51.32.

[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409, 
Sept. 3, 1987]



                   Subpart C--Contents of Submissions



Sec. 51.26  General.

    (a) The source of any information contained in a submission should 
be identified.
    (b) Where an estimate is provided in lieu of more reliable 
statistics, the submission should identify the name, position, and 
qualifications of the person responsible for the estimate and should 
briefly describe the basis for the estimate.
    (c) Submissions should be no longer than is necessary for the 
presentation of the appropriate information and materials.
    (d) The Attorney General will not accept for review any submission 
that fails to describe the subject change in sufficient particularity to 
satisfy the minimum requirements of Sec. 51.27(c).
    (e) A submitting authority that desires the Attorney General to 
consider any information supplied as part of an earlier submission may 
incorporate such information by reference by stating the date and 
subject matter of the earlier submission and identifying the relevant 
information.
    (f) Where information requested by this subpart is relevant but not 
known or available, or is not applicable, the submission should so 
state.
    (g) The following Office of Management and Budget control number 
under the Paperwork Reduction Act applies to the collection of 
information requirements contained in these Procedures: OMB No. 1190-
0001 (expires February 28, 1994). See 5 CFR 1320.13.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 1284-88, 53 FR 25327, 
July 6, 1988; Order No. 1498-91, 56 FR 26032, June 6, 1991]

[[Page 87]]



Sec. 51.27  Required contents.

    Each submission should contain the following information or 
documents to enable the Attorney General to make the required 
determination pursuant to section 5 with respect to the submitted change 
affecting voting:
    (a) A copy of any ordinance, enactment, order, or regulation 
embodying a change affecting voting.
    (b) A copy of any ordinance, enactment, order, or regulation 
embodying the voting practice that is proposed to be repealed, amended, 
or otherwise changed.
    (c) If the change affecting voting either is not readily apparent on 
the face of the documents provided under paragraphs (a) and (b) of this 
section or is not embodied in a document, a clear statement of the 
change explaining the difference between the submitted change and the 
prior law or practice, or explanatory materials adequate to disclose to 
the Attorney General the difference between the prior and proposed 
situation with respect to voting.
    (d) The name, title, address, and telephone number of the person 
making the submission.
    (e) The name of the submitting authority and the name of the 
jurisdiction responsible for the change, if different.
    (f) If the submission is not from a State or county, the name of the 
county and State in which the submitting authority is located.
    (g) Identification of the person or body responsible for making the 
change and the mode of decision (e.g., act of State legislature, 
ordinance of city council, administrative decision by registrar).
    (h) A statement identifying the statutory or other authority under 
which the jurisdiction undertakes the change and a description of the 
procedures the jurisdiction was required to follow in deciding to 
undertake the change.
    (i) The date of adoption of the change affecting voting.
    (j) The date on which the change is to take effect.
    (k) A statement that the change has not yet been enforced or 
administered, or an explanation of why such a statement cannot be made.
    (l) Where the change will affect less than the entire jurisdiction, 
an explanation of the scope of the change.
    (m) A statement of the reasons for the change.
    (n) A statement of the anticipated effect of the change on members 
of racial or language minority groups.
    (o) A statement identifying any past or pending litigation 
concerning the change or related voting practices.
    (p) A statement that the prior practice has been precleared (with 
the date) or is not subject to the preclearance requirement and a 
statement that the procedure for the adoption of the change has been 
precleared (with the date) or is not subject to the preclearance 
requirement, or an explanation of why such statements cannot be made.
    (q) For redistrictings and annexations: the items listed under 
Sec. 51.28 (a)(1) and (b)(1); for annexations only: the items listed 
under Sec. 51.28(c)(3).
    (r) Other information that the Attorney General determines is 
required for an evaluation of the purpose or effect of the change. Such 
information may include items listed in Sec. 51.28 and is most likely to 
be needed with respect to redistrictings, annexations, and other complex 
changes. In the interest of time such information should be furnished 
with the initial submission relating to voting changes of this type. 
When such information is required, but not provided, the Attorney 
General shall notify the submitting authority in the manner provided in 
Sec. 51.37.



Sec. 51.28  Supplemental contents.

    Review by the Attorney General will be facilitated if the following 
information, where pertinent, is provided in addition to that required 
by Sec. 51.27.
    (a) Demographic information. (1) Total and voting age population of 
the affected area before and after the change, by race and language 
group. If such information is contained in publications of the U.S. 
Bureau of the Census, reference to the appropriate volume and table is 
sufficient.
    (2) The number of registered voters for the affected area by voting 
precinct before and after the change, by race and language group.

[[Page 88]]

    (3) Any estimates of population, by race and language group, made in 
connection with the adoption of the change.
    (4) Demographic data provided on magnetic media shall be based upon 
the Bureau of the Census Public Law 94-171 file unique block identity 
code of state, county, tract, and block.
    (5) Demographic data on magnetic media that are provided in 
conjunction with a redistricting shall be contained in a table of 
equivalencies giving the census block to district assignments in the 
following format:
    (i) Each census block record (including those with zero population) 
will be followed by one or more additional fields indicating the 
district assignment for the census block in one or more plans.
    (ii) All district assignments in the plan fields shall be right 
justified and blank filled if the assignment is less than four 
characters.
    (iii) The file structure shall be as follows:

------------------------------------------------------------------------
                                   PL 94-171
             Field               reference name   Length     Data type
------------------------------------------------------------------------
State.........................  STATEFP........         2  Numeric.
County........................  CNTY...........         3  Numeric.
Tract.........................  TRACT/BNA......         6  Alpha/
                                                            Numeric.
Block.........................  BLCK...........         4  Alpha/
                                                            Numeric.
Plan 1 District...............  User supplied..         4  Alpha/
                                                            Numeric.
Plan 2 District...............  User supplied..         4  Alpha/
                                                            Numeric.
Plan 3 District, etc..........  ...............  ........  .............
Plan n District...............  User supplied..         4  Alpha/
                                                            Numeric.
------------------------------------------------------------------------

    (iv) State and county shall be identified using the Federal 
Information Processing Standards (FIPS-55) code.
    (v) Census tracts shall be left justified, and census blocks shall 
be left justified and blank filled if less than four characters.
    (vi) Unused plan fields shall be blank filled.
    (vii) In addition to the information identified in Sec. 51.20 (c) 
through (e), the documentation file accompanying the block level 
equivalency file shall contain the following information:
    (A) The file structure.
    (B) The total number of plans.
    (C) For each plan field, an identification of the plan (e.g., state 
senate, congressional, county board, city council, school board) and its 
status or nature (e.g., plan currently in effect, adopted plan, 
alternative plan and sponsors).
    (D) The number of districts in each plan field.
    (E) Whether the plan field contains a complete or partial plan.
    (F) Any additional information the jurisdiction deems relevant such 
as bill number, date of adoption, etc., and a listing of any 
modifications the submitting authority has made that alter the structure 
of the TIGER/line geographic file.
    (b) Maps. Where any change is made that revises the constituency 
that elects any office or affects the boundaries of any geographic unit 
or units defined or employed for voting purposes (e.g., redistricting, 
annexation, change from district to at-large elections) or that changes 
voting precinct boundaries, polling place locations, or voter 
registration sites, maps in duplicate of the area to be affected, 
containing the following information:
    (1) The prior and new boundaries of the voting unit or units.
    (2) The prior and new boundaries of voting precincts.
    (3) The location of racial and language minority groups.
    (4) Any natural boundaries or geographical features that influenced 
the selection of boundaries of the prior or new units.
    (5) The location of prior and new polling places.
    (6) The location of prior and new voter registration sites.
    (c) Annexations. For annexations, in addition to that information 
specified elsewhere, the following information:
    (1) The present and expected future use of the annexed land (e.g., 
garden apartments, industrial park).
    (2) An estimate of the expected population, by race and language 
group, when anticipated development, if any, is completed.
    (3) A statement that all prior annexations subject to the 
preclearance requirement have been submitted for review, or a statement 
that identifies all annexations subject to the preclearance requirement 
that have not been submitted for review. See Sec. 51.61(b).

[[Page 89]]

    (d) Election returns. Where a change may affect the electoral 
influence of a racial or language minority group, returns of primary and 
general elections conducted by or in the jurisdiction, containing the 
following information:
    (1) The name of each candidate.
    (2) The race or language group of each candidate, if known.
    (3) The position sought by each candidate.
    (4) The number of votes received by each candidate, by voting 
precinct.
    (5) The outcome of each contest.
    (6) The number of registered voters, by race and language group, for 
each voting precinct for which election returns are furnished. 
Information with respect to elections held during the last ten years 
will normally be sufficient.
    (7) Election related data containing any of the information 
described above that are provided on magnetic media shall conform to the 
requirements of Sec. 51.20 (b) through (e). Election related data that 
cannot be accurately presented in terms of census blocks may be 
identified by county and by precinct.
    (e) Language usage. Where a change is made affecting the use of the 
language of a language minority group in the electoral process, 
information that will enable the Attorney General to determine whether 
the change is consistent with the minority language requirements of the 
Act. The Attorney General's interpretation of the minority language 
requirements of the Act is contained in Interpretative Guidelines: 
Implementation of the Provisions of the Voting Rights Act Regarding 
Language Minority Groups, 28 CFR part 55.
    (f) Publicity and participation. For submissions involving 
controversial or potentially controversial changes, evidence of public 
notice, of the opportunity for the public to be heard, and of the 
opportunity for interested parties to participate in the decision to 
adopt the proposed change and an account of the extent to which such 
participation, especially by minority group members, in fact took place. 
Examples of materials demonstrating public notice or participation 
include:
    (1) Copies of newspaper articles discussing the proposed change.
    (2) Copies of public notices that describe the proposed change and 
invite public comment or participation in hearings and statements 
regarding where such public notices appeared (e.g., newspaper, radio, or 
television, posted in public buildings, sent to identified individuals 
or groups).
    (3) Minutes or accounts of public hearings concerning the proposed 
change.
    (4) Statements, speeches, and other public communications concerning 
the proposed change.
    (5) Copies of comments from the general public.
    (6) Excerpts from legislative journals containing discussion of a 
submitted enactment, or other materials revealing its legislative 
purpose.
    (g) Availability of the submission. (1) Copies of public notices 
that announce the submission to the Attorney General, inform the public 
that a complete duplicate copy of the submission is available for public 
inspection (e.g., at the county courthouse) and invite comments for the 
consideration of the Attorney General and statements regarding where 
such public notices appeared.
    (2) Information demonstrating that the submitting authority, where a 
submission contains magnetic media, made the magnetic media available to 
be copied or, if so requested, made a hard copy of the data contained on 
the magnetic media available to be copied.
    (h) Minority group contacts. For submissions from jurisdictions 
having a significant minority population, the names, addresses, 
telephone numbers, and organizational affiliation (if any) of racial or 
language minority group members residing in the jurisdiction who can be 
expected to be familiar with the proposed change or who have been active 
in the political process.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR 51836, 
Oct. 16, 1991]



          Subpart D--Communications From Individuals and Groups



Sec. 51.29  Communications concerning voting changes.

    Any individual or group may send to the Attorney General information 
concerning a change affecting voting in a jurisdiction to which section 
5 applies.

[[Page 90]]

    (a) Communications may be in the form of a letter stating the name, 
address, and telephone number of the individual or group, describing the 
alleged change affecting voting and setting forth evidence regarding 
whether the change has or does not have a discriminatory purpose or 
effect, or simply bringing to the attention of the Attorney General the 
fact that a voting change has occurred.
    (b) The communications should be mailed to the Chief, Voting 
Section, Civil Rights Division, Department of Justice, P.O. Box 66128, 
Washington, DC 20035-6128. The envelope and first page should be marked: 
Comment under section 5 of the Voting Rights Act.
    (c) Comments by individuals or groups concerning any change 
affecting voting may be sent at any time; however, individuals and 
groups are encouraged to comment as soon as they learn of the change.
    (d) Department of Justice officials and employees shall comply with 
the request of any individual that his or her identity not be disclosed 
to any person outside the Department, to the extent permitted by the 
Freedom of Information Act, 5 U.S.C. 552. In addition, whenever it 
appears to the Attorney General that disclosure of the identity of an 
individual who provided information regarding a change affecting voting 
``would constitute a clearly unwarranted invasion of personal privacy'' 
under 5 U.S.C. 552(b)(6), the identity of the individual shall not be 
disclosed to any person outside the Department.
    (e) When an individual or group desires the Attorney General to 
consider information that was supplied in connection with an earlier 
submission, it is not necessary to resubmit the information but merely 
to identify the earlier submission and the relevant information.

[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409, 
Sept. 3, 1987]



Sec. 51.30  Action on communications from individuals or groups.

    (a) If there has already been a submission received of the change 
affecting voting brought to the attention of the Attorney General by an 
individual or group, any evidence from the individual or group shall be 
considered along with the materials submitted and materials resulting 
from any investigation.
    (b) If such a submission has not been received, the Attorney General 
shall advise the appropriate jurisdiction of the requirement of section 
5 with respect to the change in question.



Sec. 51.31  Communications concerning voting suits.

    Individuals and groups are urged to notify the Chief, Voting 
Section, Civil Rights Division, of litigation concerning voting in 
jurisdictions subject to the requirement of section 5.



Sec. 51.32  Establishment and maintenance of registry of interested individuals and groups.

    The Attorney General shall establish and maintain a Registry of 
Interested Individuals and Groups, which shall contain the name and 
address of any individual or group that wishes to receive notice of 
section 5 submissions. Information relating to this registry and to the 
requirements of the Privacy Act of 1974, 5 U.S.C. 552a et seq., is 
contained in JUSTICE/CRT-004. 48 FR 5334 (Feb. 4, 1983).



                  Subpart E--Processing of Submissions



Sec. 51.33  Notice to registrants concerning submissions.

    Weekly notice of submissions that have been received will be given 
to the individuals and groups who have registered for this purpose under 
Sec. 51.32. Such notice will also be given when section 5 declaratory 
judgment actions are filed or decided.



Sec. 51.34  Expedited consideration.

    (a) When a submitting authority is required under State law or local 
ordinance or otherwise finds it necessary to implement a change within 
the 60-day period following submission, it may request that the 
submission be given expedited consideration. The submission should 
explain why such consideration is needed and provide the date by which a 
determination is required.

[[Page 91]]

    (b) Jurisdictions should endeavor to plan for changes in advance so 
that expedited consideration will not be required and should not 
routinely request such consideration. When a submitting authority 
demonstrates good cause for expedited consideration the Attorney General 
will attempt to make a decision by the date requested. However, the 
Attorney General cannot guarantee that such consideration can be given.
    (c) Notice of the request for expedited consideration will be given 
to interested parties registered under Sec. 51.32.



Sec. 51.35  Disposition of inappropriate submissions.

    The Attorney General will make no response on the merits with 
respect to an inappropriate submission but will notify the submitting 
authority of the inappropriateness of the submission. Such notification 
will be made as promptly as possible and no later than the 60th day 
following receipt and will include an explanation of the 
inappropriateness of the submission. Inappropriate submissions include 
the submission of changes that do not affect voting (see, e.g., 
Sec. 51.13), the submission of standards, practices, or procedures that 
have not been changed (see, e.g., Secs. 51.4, 51.14), the submission of 
changes that affect voting but are not subject to the requirement of 
section 5 (see, e.g., Sec. 51.18), premature submissions (see 
Secs. 51.22, 51.61(b)), submissions by jurisdictions not subject to the 
preclearance requirement (see Secs. 51.4, 51.5), and deficient 
submissions (see Sec. 51.26(d)).



Sec. 51.36  Release of information concerning submissions.

    The Attorney General shall have the discretion to call to the 
attention of the submitting authority or any interested individual or 
group information or comments related to a submission.



Sec. 51.37  Obtaining information from the submitting authority.

    (a) If a submission does not satisfy the requirements of Sec. 51.27, 
the Attorney General may request from the submitting authority any 
omitted information considered necessary for the evaluation of the 
submission. The request shall be made by letter and shall be made within 
the 60-day period and as promptly as possible after receipt of the 
original submission. See also Sec. 51.26(d).
    (b) A copy of the request shall be sent to any party who has 
commented on the submission or has requested notice of the Attorney 
General's action thereon.
    (c) The Attorney General shall notify the submitting authority that 
a new 60-day period in which the Attorney General may interpose an 
objection shall commence upon the receipt of a response from the 
submitting authority that provides the information requested or states 
that the information is unavailable. The Attorney General can request 
further information within the new 60-day period, but such a further 
request shall not suspend the running of the 60-day period, nor shall 
the receipt of a response to such a request operate to begin a new 60-
day period.
    (d) The receipt of a response from the submitting authority that 
neither provides the information requested nor states that such 
information is unavailable shall not commence a new 60-day period. It is 
the practice of the Attorney General to notify the submitting authority 
that its response is inadequate and to provide such notification as soon 
as possible after the receipt of the inadequate response.
    (e) If, after a request for further information is made pursuant to 
this section, the information requested becomes available to the 
Attorney General from a source other than the submitting authority, the 
Attorney General shall promptly notify the submitting authority by 
letter, and the 60-day period will commence upon the date of such 
notification.
    (f) Notice of the request for and receipt of further information 
will be given to interested parties registered under Sec. 51.32.



Sec. 51.38  Obtaining information from others.

    (a) The Attorney General may at any time request relevant 
information from governmental jurisdictions and from interested groups 
and individuals and may conduct any investigation or

[[Page 92]]

other inquiry that is deemed appropriate in making a determination.
    (b) If a submission does not contain evidence of adequate notice to 
the public, and the Attorney General believes that such notice is 
essential to a determination, steps will be taken by the Attorney 
General to provide public notice sufficent to invite interested or 
affected persons to provide evidence as to the presence or absence of a 
discriminatory purpose or effect. The submitting authority shall be 
advised when any such steps are taken.



Sec. 51.39  Supplementary submissions.

    (a) When a submitting authority provides documents and written 
information materially supplementing a submission (or a request for 
reconsideration of an objection) for evaluation as if part of its 
original submission, or, before the expiration of the 60-day period, 
makes a second submission such that the two submissions cannot be 
independently considered, the 60-day period for the original submission 
will be calculated from the receipt of the supplementary information or 
from the second submission.
    (b) The Attorney General will notify the submitting authority when 
the 60-day period for a submission is recalculated from the receipt of 
supplementary information or from the receipt of a second related 
submission.
    (c) Notice of the receipt of supplementary information will be given 
to interested parties registered under Sec. 51.32.



Sec. 51.40  Failure to complete submissions.

    If after 60 days the submitting authority has not provided further 
information in response to a request made pursuant to Sec. 51.37(a), the 
Attorney General, absent extenuating circumstances and consistent with 
the burden of proof under section 5 described in Sec. 51.52 (a) and (c), 
may object to the change, giving notice as specified in Sec. 51.44.



Sec. 51.41  Notification of decision not to object.

    (a) The Attorney General shall within the 60-day period allowed 
notify the submitting authority of a decision to interpose no objection 
to a submitted change affecting voting.
    (b) The notification shall state that the failure of the Attorney 
General to object does not bar subsequent litigation to enjoin the 
enforcement of the change.
    (c) A copy of the notification shall be sent to any party who has 
commented on the submission or has requested notice of the Attorney 
General's action thereon.



Sec. 51.42  Failure of the Attorney General to respond.

    It is the practice and intention of the Attorney General to respond 
to each submission within the 60-day period. However, the failure of the 
Attorney General to make a written response within the 60-day period 
constitutes preclearance of the submitted change, provided the 
submission is addressed as specified in Sec. 51.24 and is appropriate 
for a response on the merits as described in Sec. 51.35.



Sec. 51.43  Reexamination of decision not to object.

    After notification to the submitting authority of a decision to 
interpose no objection to a submitted change affecting voting has been 
given, the Attorney General may reexamine the submission if, prior to 
the expiration of the 60-day period, information indicating the 
possibility of the prohibited discriminatory purpose or effect is 
received. In this event, the Attorney General may interpose an objection 
provisionally and advise the submitting authority that examination of 
the change in light of the newly raised issues will continue and that a 
final decision will be rendered as soon as possible.



Sec. 51.44  Notification of decision to object.

    (a) The Attorney General shall within the 60-day period allowed 
notify the submitting authority of a decision to interpose an objection. 
The reasons for the decision shall be stated.
    (b) The submitting authority shall be advised that the Attorney 
General will reconsider an objection upon a request by the submitting 
authority.

[[Page 93]]

    (c) The submitting authority shall be advised further that 
notwithstanding the objecton it may institute an action in the U.S. 
District Court for the District of Columbia for a declaratory judgment 
that the change objected to by the Attorney General does not have the 
prohibited discriminatory purpose or effect.
    (d) A copy of the notification shall be sent to any party who has 
commented on the submission or has requested notice of the Attorney 
General's action thereon.
    (e) Notice of the decision to interpose an objection will be given 
to interested parties registered under Sec. 51.32.



Sec. 51.45  Request for reconsideration.

    (a) The submitting authority may at any time request the Attorney 
General to reconsider an objection.
    (b) Requests may be in letter or any other written form and should 
contain relevant information or legal argument.
    (c) Notice of the request will be given to any party who commented 
on the submission or requested notice of the Attorney General's action 
thereon and to interested parties registered under Sec. 51.32. In 
appropriate cases the Attorney General may request the submitting 
authority to give local public notice of the request.



Sec. 51.46  Reconsideration of objection at the instance of the Attorney General.

    (a) Where there appears to have been a substantial change in 
operative fact or relevant law, an objection may be reconsidered, if it 
is deemed appropriate, at the instance of the Attorney General.
    (b) Notice of such a decision to reconsider shall be given to the 
submitting authority, to any party who commented on the submission or 
requested notice of the Attorney General's action thereon, and to 
interested parties registered under Sec. 51.32, and the Attorney General 
shall decide whether to withdraw or to continue the objection only after 
such persons have had a reasonable opportunity to comment.



Sec. 51.47  Conference.

    (a) A submitting authority that has requested reconsideration of an 
objection pursuant to Sec. 51.45 may request a conference to produce 
information or legal argument in support of reconsideration.
    (b) Such a conference shall be held at a location determined by the 
Attorney General and shall be conducted in an informal manner.
    (c) When a submitting authority requests such a conference, 
individuals or groups that commented on the change prior to the Attorney 
General's objection or that seek to participate in response to any 
notice of a request for reconsideration shall be notified and given the 
opportunity to confer.
    (d) The Attorney General shall have the discretion to hold separate 
meetings to confer with the submitting authority and other interested 
groups or individuals.
    (e) Such conferences will be open to the public or to the press only 
at the discretion of the Attorney General and with the agreement of the 
participating parties.



Sec. 51.48  Decision after reconsideration.

    (a) The Attorney General shall within the 60-day period following 
the receipt of a reconsideration request or following notice given under 
Sec. 51.46(b) notify the submitting authority of the decision to 
continue or withdraw the objection, provided that the Attorney General 
shall have at least 15 days following any conference that is held in 
which to decide. (See also Sec. 51.39(a).) The reasons for the decision 
shall be stated.
    (b) The objection shall be withdrawn if the Attorney General is 
satisfied that the change does not have the purpose and will not have 
the effect of discriminating on account of race, color, or membership in 
a language minority group.
    (c) If the objection is not withdrawn, the submitting authority 
shall be advised that notwithstanding the objection it may institute an 
action in the U.S. District Court for the District of Columbia for a 
declaratory judgment that the change objected to by the Attorney General 
does not have the prohibited purpose or effect.

[[Page 94]]

    (d) An objection remains in effect until either it is withdrawn by 
the Attorney General or a declaratory judgment with respect to the 
change in question is entered by the U.S. District Court for the 
District of Columbia.
    (e) A copy of the notification shall be sent to any party who has 
commented on the submission or reconsideration or has requested notice 
of the Attorney General's action thereon.
    (f) Notice of the decision after reconsideration will be given to 
interested parties registered under Sec. 51.32.



Sec. 51.49  Absence of judicial review.

    The decision of the Attorney General not to object to a submitted 
change or to withdraw an objection is not reviewable. The preclearance 
by the Attorney General of a voting change does not constitute the 
certification that the voting change satisfies any other requirement of 
the law beyond that of section 5, and, as stated in section 5, 
``(n)either an affirmative indication by the Attorney General that no 
objection will be made, nor the Attorney General's failure to object, 
nor a declaratory judgment entered under this section shall bar a 
subsequent action to enjoin enforcement of such qualification, 
prerequisite, standard, practice, or procedure.''



Sec. 51.50  Records concerning submissions.

    (a) Section 5 files: The Attorney General shall maintain a section 5 
file for each submission, containing the submission, related written 
materials, correspondence, memoranda, investigative reports, data 
provided on magnetic media, notations concerning conferences with the 
submitting authority or any interested individual or group, and copies 
of letters from the Attorney General concerning the submission.
    (b) Objection files: Brief summaries regarding each submission and 
the general findings of the Department of Justice investigation and 
decision concerning it will be prepared when a decision to interpose, 
continue, or withdraw an objection is made. Files of these summaries, 
arranged by jurisdiction and by the date upon which such decision is 
made, will be maintained.
    (c) Computer file: Records of all submissions and of their 
dispositions by the Attorney General shall be electronically stored and 
periodically retrieved in the form of computer printouts.
    (d) The contents of the files in paper or microfiche form described 
in paragraphs (a) through (c) of this section shall be available for 
inspection and copying by the public during normal business hours at the 
Voting Section, Civil Rights Division, Department of Justice, 
Washington, DC. Those who desire to inspect information that has been 
provided on magnetic media will be provided a copy of that information 
in the same form as it was received. Materials that are exempt from 
inspection under the Freedom of Information Act, 5 U.S.C. 552(b), may be 
withheld at the discretion of the Attorney Gereral. Communications from 
individuals who have requested confidentiality or with respect to whom 
the Attorney General has determined that confidentiality is appropriate 
under Sec. 51.29(d) shall be available only as provided by 
Sec. 51.29(d). Applicable fees, if any, for the copying of the contents 
of these files are contained in the Department of Justice regulations 
implementing the Freedom of Information Act, 28 CFR 16.10.

[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987, as amended by Order 
No. 1536-91, 56 FR 51837, Oct. 16, 1991]



            Subpart F--Determinations by the Attorney General



Sec. 51.51  Purpose of the subpart.

    The purpose of this subpart is to inform submitting authorities and 
other interested parties of the factors that the Attorney General 
considers relevant and of the standards by which the Attorney General 
will be guided in making substantive determinations under section 5 and 
in defending section 5 declaratory judgment actions.



Sec. 51.52  Basic standard.

    (a) Surrogate for the court. Section 5 provides for submission of a 
voting change to the Attorney General as an alternative to the seeking 
of a declaratory judgment from the U.S. District Court for the District 
of Columbia.

[[Page 95]]

Therefore, the Attorney General shall make the same determination that 
would be made by the court in an action for a declaratory judgment under 
section 5: Whether the submitted change has the purpose or will have the 
effect of denying or abridging the right to vote on account of race, 
color, or membership in a language minority group. The burden of proof 
is on a submitting authority when it submits a change to the Attorney 
General for preclearance, as it would be if the proposed change were the 
subject of a declaratory judgment action in the U.S. District Court for 
the District of Columbia. See South Carolina v. Katzenbach, 383 U.S. 
301, 328, 335 (1966).
    (b) No objection. If the Attorney General determines that the 
submitted change does not have the prohibited purpose or effect, no 
objection shall be interposed to the change.
    (c) Objection. An objection shall be interposed to a submitted 
change if the Attorney General is unable to determine that the change is 
free of discriminatory purpose and effect. This includes those 
situations where the evidence as to the purpose or effect of the change 
is conflicting and the Attorney General is unable to determine that the 
change is free of discriminatory purpose and effect.



Sec. 51.53  Information considered.

    The Attorney General shall base a determination on a review of 
material presented by the submitting authority, relevant information 
provided by individuals or groups, and the results of any investigation 
conducted by the Department of Justice.



Sec. 51.54  Discriminatory effect.

    (a) Retrogression. A change affecting voting is considered to have a 
discriminatory effect under section 5 if it will lead to a retrogression 
in the position of members of a racial or language minority group (i.e., 
will make members of such a group worse off than they had been before 
the change) with respect to their opportunity to exercise the electoral 
franchise effectively. See Beer v. United States, 425 U.S. 130, 140-42 
(1976).
    (b) Benchmark. (1) In determining whether a submitted change is 
retrogressive the Attorney General will normally compare the submitted 
change to the voting practice or procedure in effect at the time of the 
submission. If the existing practice or procedure upon submission was 
not in effect on the jurisdiction's applicable date for coverage 
(specified in the appendix) and is not otherwise legally enforceable 
under section 5, it cannot serve as a benchmark, and, except as provided 
in paragraph (b)(4) of this section, the comparison shall be with the 
last legally enforceable practice or procedure used by the jurisdiction.
    (2) The Attorney General will make the comparison based on the 
conditions existing at the time of the submission.
    (3) The implementation and use of an unprecleared voting change 
subject to section 5 review under Sec. 51.18(a) does not operate to make 
that unprecleared change a benchmark for any subsequent change submitted 
by the jurisdiction. See Sec. 51.18(c).
    (4) Where at the time of submission of a change for section 5 review 
there exists no other lawful practice or procedure for use as a 
benchmark (e.g., where a newly incorporated college district selects a 
method of election) the Attorney General's preclearance determination 
will necessarily center on whether the submitted change was designed or 
adopted for the purpose of discriminating against members of racial or 
language minority groups.



Sec. 51.55  Consistency with constitutional and statutory requirements.

    (a) Consideration in general. In making a determination the Attorney 
General will consider whether the change is free of discriminatory 
purpose and retrogressive effect in light of, and with particular 
attention being given to, the requirements of the 14th, 15th, and 24th 
amendments to the Constitution, 42 U.S.C. 1971(a) and (b), sections 2, 
4(a), 4(f)(2), 4(f)(4), 201, 203(c), and 208 of the Act, and other 
constitutional and statutory provisions designed to safeguard the right 
to vote from denial or abridgment on account of race, color, or 
membership in a language minority group.
    (b) Section 2. Preclearance under section 5 of a voting change will 
not preclude any legal action under section 2

[[Page 96]]

by the Attorney General if implementation of the change demonstrates 
that such action is appropriate.

[52 FR 490, Jan. 6, 1987, as amended at 63 FR 24109, May 1, 1998]



Sec. 51.56  Guidance from the courts.

    In making determinations the Attorney General will be guided by the 
relevant decisions of the Supreme Court of the United States and of 
other Federal courts.



Sec. 51.57  Relevant factors.

    Among the factors the Attorney General will consider in making 
determinations with respect to the submitted changes affecting voting 
are the following:
    (a) The extent to which a reasonable and legitimate justification 
for the change exists.
    (b) The extent to which the jurisdiction followed objective 
guidelines and fair and conventional procedures in adopting the change.
    (c) The extent to which the jurisdiction afforded members of racial 
and language minority groups an opportunity to participate in the 
decision to make the change.
    (d) The extent to which the jurisdiction took the concerns of 
members of racial and language minority groups into account in making 
the change.



Sec. 51.58  Representation.

    (a) Introduction. This section and the sections that follow set 
forth factors--in addition to those set forth above--that the Attorney 
General considers in reviewing redistrictings (see Sec. 51.59), changes 
in electoral systems (see Sec. 51.60), and annexations (see Sec. 51.61).
    (b) Background factors. In making determinations with respect to 
these changes involving voting practices and procedures, the Attorney 
General will consider as important background information the following 
factors:
    (1) The extent to which minorities have been denied an equal 
opportunity to participate meaningfully in the political process in the 
jurisdiction.
    (2) The extent to which minorities have been denied an equal 
opportunity to influence elections and the decisionmaking of elected 
officials in the jurisdiction.
    (3) The extent to which voting in the jurisdiction is racially 
polarized and political activities are racially segregated.
    (4) The extent to which the voter registration and election 
participation of minority voters have been adversely affected by present 
or past discrimination.



Sec. 51.59  Redistrictings.

    In determining whether a submitted redistricting plan has the 
prohibited purpose or effect the Attorney General, in addition to the 
factors described above, will consider the following factors (among 
others):
    (a) The extent to which malapportioned districts deny or abridge the 
right to vote of minority citizens.
    (b) The extent to which minority voting strength is reduced by the 
proposed redistricting.
    (c) The extent to which minority concentrations are fragmented among 
different districts.
    (d) The extent to which minorities are overconcentrated in one or 
more districts.
    (e) The extent to which available alternative plans satisfying the 
jurisdiction's legitimate governmental interests were considered.
    (f) The extent to which the plan departs from objective 
redistricting criteria set by the submitting jurisdiction, ignores other 
relevant factors such as compactness and contiguity, or displays a 
configuration that inexplicably disregards available natural or 
artificial boundaries.
    (g) The extent to which the plan is inconsistent with the 
jurisdiction's stated redistricting standards.



Sec. 51.60  Changes in electoral systems.

    In making determinations with respect to changes in electoral 
systems (e.g., changes to or from the use of at-large elections, changes 
in the size of elected bodies) the Attorney General, in addition to the 
factors described above, will consider the following factors (among 
others):
    (a) The extent to which minority voting strength is reduced by the 
proposed change.

[[Page 97]]

    (b) The extent to which minority concentrations are submerged into 
larger electoral units.
    (c) The extent to which available alternative systems satisfying the 
jurisdiction's legitimate governmental interests were considered.



Sec. 51.61  Annexations.

    (a) Coverage. Annexations, even of uninhabited land, are subject to 
section 5 preclearance to the extent that they alter or are calculated 
to alter the composition of a jurisdiction's electorate. In analyzing 
annexations under section 5, the Attorney General only considers the 
purpose and effect of the annexation as it pertains to voting.
    (b) Section 5 review. It is the practice of the Attorney General to 
review all of a jurisdiction's unprecleared annexations together. See 
City of Pleasant Grove v. United States, C.A. No. 80-2589 (D.D.C. Oct. 
7, 1981).
    (c) Relevant factors. In making determinations with respect to 
annexations, the Attorney General, in addition to the factors described 
above, will consider the following factors (among others):
    (1) The extent to which a jurisdiction's annexations reflect the 
purpose or have the effect of excluding minorities while including other 
similarly situated persons.
    (2) The extent to which the annexations reduce a jurisdiction's 
minority population percentage, either at the time of the submission or, 
in view of the intended use, for the reasonably foreseeable future.
    (3) Whether the electoral system to be used in the jurisdiction 
fails fairly to reflect minority voting strength as it exists in the 
post-annexation jurisdiction. See City of Richmond v. United States, 422 
U.S. 358, 367-72 (1975).

[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987]



                          Subpart G--Sanctions



Sec. 51.62  Enforcement by the Attorney General.

    (a) The Attorney General is authorized to bring civil actions for 
appropriate relief against violations of the Act's provisions, including 
section 5. See section 12(d).
    (b) Certain violations of section 5 may be subject to criminal 
sanctions. See section 12(a) and (c).



Sec. 51.63  Enforcement by private parties.

    Private parties have standing to enforce section 5.



Sec. 51.64  Bar to termination of coverage (bailout).

    (a) Section 4(a) of the Act sets out the requirements for the 
termination of coverage (bailout) under section 5. See Sec. 51.5. Among 
the requirements for bailout is compliance with section 5, as described 
in section 4(a), during the ten years preceding the filing of the 
bailout action and during its pendency.
    (b) In defending bailout actions, the Attorney General will not 
consider as a bar to bailout under section 4(a)(1)(E) a section 5 
objection to a submitted voting standard, practice, or procedure if the 
objection was subsequently withdrawn on the basis of a determination by 
the Attorney General that it had originally been interposed as a result 
of the Attorney General's misinterpretation of fact or mistake in the 
law, or if the unmodified voting standard, practice, or procedure that 
was the subject of the objection received section 5 preclearance by 
means of a declaratory judgment from the U.S. District Court for the 
District of Columbia.
    (c) Notice will be given to interested parties registered under 
Sec. 51.32 when bailout actions are filed or decided.



                Subpart H--Petition To Change Procedures



Sec. 51.65  Who may petition.

    Any jurisdiction or interested individual or group may petition to 
have these procedural guidelines amended.



Sec. 51.66  Form of petition.

    A petition under this subpart may be made by informal letter and 
shall state the name, address, and telephone number of the petitioner, 
the change requested, and the reasons for the change.

[[Page 98]]



Sec. 51.67  Disposition of petition.

    The Attorney General shall promptly consider and dispose of a 
petition under this subpart and give notice of the disposition, 
accompanied by a simple statement of the reasons, to the petitioner.

  Appendix to Part 51--Jurisdictions Covered Under Section 4(b) of the 
                      Voting Rights Act, as Amended

    The preclearance requirement of section 5 of the Voting Rights Act, 
as amended, applies in the following jurisdictions. The applicable date 
is the date that was used to determine coverage and the date after which 
changes affecting voting are subject to the preclearance requirement.
    Some jurisdictions, for example, Yuba County, California, are 
included more than once because they have been determined on more than 
one occasion to be covered under section 4(b).

----------------------------------------------------------------------------------------------------------------
                                                                            Federal Register citation
             Jurisdiction                  Applicable Date     -------------------------------------------------
                                                                    Volume and page                Date
----------------------------------------------------------------------------------------------------------------
Alabama..............................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
Alaska...............................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
Arizona..............................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
California:
  Kings County.......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23. 1975.
  Merced County......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  Monterey County....................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Yuba County........................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Yuba County........................  Nov. 1, 1972...........  41 FR 784..............  Jan. 5, 1976.
Florida:
  Collier County.....................  Nov. 1, 1972...........  41 FR 34329............  Aug. 13, 1976.
  Hardee County......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  Hendry County......................  Nov. 1, 1972...........  41 FR 34329............  Aug. 13, 1976.
  Hillsborough County................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  Monroe County......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
Georgia..............................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
Louisiana............................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
Michigan:
  Allegan County:
    Clyde Township...................  Nov. 1, 1972...........  41 FR 34329............  Aug. 13, 1976.
  Saginaw County:
    Buena Vista Township.............  Nov. 1, 1972...........  41 FR 34329............  Aug. 13, 1976.
Mississippi..........................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
New Hampshire:
  Cheshire County:
    Rindge Town......................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Coos County:
    Millsfield Township..............  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
    Pinkhams Grant...................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
    Stewartstown Town................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
    Stratford Town...................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Grafton County:
    Benton Town......................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Hillsborough County:
    Antrim Town......................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Merrimack County:
    Boscawen Town....................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Rockingham County:
    Newington Town...................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
  Sullivan County:
    Unity Town.......................  Nov. 1, 1968...........  39 FR 16912............  May 10, 1974.
New York:
  Bronx County.......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Bronx County.......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  Kings County.......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Kings County.......................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
  New York County....................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
North Carolina:
  Anson County.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Beaufort County....................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Bertie County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Bladen County......................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Camden County......................  Nov. 1, 1964...........  31 FR 3317.............  Mar. 2, 1966.

[[Page 99]]

 
  Caswell County.....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Chowan County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Cleveland County...................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Craven County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Cumberland County..................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Edgecombe County...................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Franklin County....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Gaston County......................  Nov. 1, 1964...........  31 FR 5081.............  Mar, 29, 1966.
  Gates County.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Granville County...................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Greene County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Guilford County....................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Halifax County.....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Harnett County.....................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Hertford County....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Hoke County........................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Jackson County.....................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
  Lee County.........................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Lenoir County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Martin County......................  Nov. 1, 1964...........  31 FR 19...............  Jan. 4, 1966.
  Nash County........................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Northampton County.................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Onslow County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Pasquotank County..................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Perquimans County..................  Nov. 1, 1964...........  31 FR 3317.............  Mar. 2, 1966.
  Person County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Pitt County........................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Robeson County.....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Rockingham County..................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Scotland County....................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Union County.......................  Nov. 1, 1964...........  31 FR 5081.............  Mar. 29, 1966.
  Vance County.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Washington County..................  Nov. 1, 1964...........  31 FR 19...............  Jan. 4, 1966.
  Wayne County.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
  Wilson County......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
South Carolina.......................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
South Dakota:
  Shannon County.....................  Nov. 1, 1972...........  41 FR 784..............  Jan. 5, 1976.
  Todd County........................  Nov. 1, 1972...........  41 FR 784..............  Jan. 5, 1976.
Texas................................  Nov. 1, 1972...........  40 FR 43746............  Sept. 23, 1975.
Virginia.............................  Nov. 1, 1964...........  30 FR 9897.............  Aug. 7, 1965.
----------------------------------------------------------------------------------------------------------------

    The following political subdivisions in States subject to statewide 
coverage are also covered individually:

----------------------------------------------------------------------------------------------------------------
                                                                            Federal Register citation
             Jurisdiction                  Applicable date     -------------------------------------------------
                                                                    Volume and page                Date
----------------------------------------------------------------------------------------------------------------
Arizona:
  Apache County......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Apache County......................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975
  Cochise County.....................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Coconino County....................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Coconino County....................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
  Mohave County......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Navajo County......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Navajo County......................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
  Pima County........................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Pinal County.......................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Pinal County.......................  Nov. 1, 1972...........  40 FR 49422............  Oct. 22, 1975.
  Santa Cruz County..................  Nov. 1, 1968...........  36 FR 5809.............  Mar. 27, 1971.
  Yuma County........................  Nov. 1, 1964...........  31 FR 982..............  Jan. 25, 1966.
----------------------------------------------------------------------------------------------------------------


[[Page 100]]



PART 52--PROCEEDINGS BEFORE U.S. MAGISTRATE JUDGES--Table of Contents




Sec.
52.01  Civil proceedings: Special master, pretrial, trial, appeal.
52.02  Criminal proceedings: Pretrial, trial.



Sec. 52.01  Civil proceedings: Special master, pretrial, trial, appeal.

    (a) Sections 636 (b) and (c) of title 28 of the United States Code 
govern pretrial and case-dispositive civil jurisdiction of magistrate 
judges, as well as service by magistrate judges as special masters.
    (b) It is the policy of the Department of Justice to encourage the 
use of magistrate judges, as set forth in this paragraph, to assist the 
district courts in resolving civil disputes. In conformity with this 
policy, the attorney for the government is encouraged to accede to a 
referral of an entire civil action for disposition by a magistrate 
judge, or to consent to designation of a magistrate judge as special 
master, if the attorney, with the concurrence of his or her supervisor, 
determines that such a referral or designation is in the interest of the 
United States. In making this determination, the attorney shall consider 
all relevant factors, including--
    (1) The complexity of the matter, including involvement of 
significant rights of large numbers of persons;
    (2) The relief sought;
    (3) The amount in controversy;
    (4) The novelty, importance, and nature of the issues raised;
    (5) The likelihood that referral to or designation of the magistrate 
judge will expedite resolution of the litigation;
    (6) The experience and qualifications of the magistrate judge; and
    (7) The possibility of the magistrate judge's actual or apparent 
bias or conflict of interest.
    (c)(1) In determining whether to consent to having an appeal taken 
to the district court rather than to the court of appeals, the attorney 
for the government should consider all relevant factors including--
    (i) The amount in controversy;
    (ii) The importance of the questions of law involved;
    (iii) The desirability of expeditious review of the magistrate 
judge's judgment.
    (2) In making a determination under paragraph (c)(1) of this section 
the attorney shall, except in those cases in which delegation authority 
has been exercised under 28 CFR 0.168, consult with the Assistant 
Attorney General having supervisory authority over the subject matter.

[Order No. 2012-96, 61 FR 8473, Mar. 5, 1996]



Sec. 52.02  Criminal proceedings: Pretrial, trial.

    (a) A judge of the district court, without the parties' consent, may 
designate a magistrate judge to hear and determine criminal pretrial 
matters pending before the court, except for two named classes of 
motions; as to the latter, the magistrate judge may conduct a hearing 
and recommend a decision to the judge. 28 U.S.C. 636(b)(1) (A), (B).
    (b) When specially designated by the court to exercise such 
jurisdiction, a magistrate judge may try, and impose sentence for, any 
misdemeanor if he has properly and fully advised the defendant that he 
has a right to elect ``trial, judgment, and sentencing by a judge of the 
district court and * * * may have a right to trial by jury before a 
district judge or magistrate judge,'' and has obtained the defendant's 
written consent to be tried by the magistrate judge. 18 U.S.C. 3401 (a), 
(b). The court may order that proceedings be conducted before a district 
judge rather than a magistrate judge upon its own motion or, for good 
cause shown upon petition by the attorney for the government. The 
petition should note ``the novelty, importance, or complexity of the 
case, or other pertinent factors * * * ''. 18 U.S.C. 3401(f).
    (1) If the attorney for the government determines that the public 
interest is better served by trial before a district judge, the attorney 
may petition the district court for such an order after consulting with 
the appropriate Assistant Attorney General as provided in paragraph 
(b)(2) of this section. In making this determination, the attorney shall 
consider all relevant factors including--

[[Page 101]]

    (i) The novelty of the case with respect to the facts, the statute 
being enforced, and the application of the statute to the facts;
    (ii) The importance of the case in light of the nature and 
seriousness of the offense charged;
    (iii) The defendant's history of criminal activity, the potential 
penalty upon conviction, and the purposes to be served by prosecution, 
including punishment, deterrence, rehabilitation, and incapacitation;
    (iv) The factual and legal complexity of the case and the amount and 
nature of the evidence to be presented;
    (v) The desirability of prompt disposition of the case; and
    (vi) The experience and qualifications of the magistrate judge, and 
the possibility of the magistrate judge's actual or apparent bias or 
conflict of interest.
    (2) The attorney for the government shall consult with the Assistant 
Attorney General having supervisory authority over the subject matter in 
determining whether to petition for trial before a district judge in a 
case involving a violation of 2 U.S.C. 192, 441j(a); 18 U.S.C. 210, 211, 
242, 245, 594, 597, 599, 600, 601, 1304, 1504, 1508, 1509, 2234, 2235, 
2236; or 42 U.S.C. 3631.
    (3) In a case in which the government petitions for trial before a 
district judge, the attorney for the government shall forward a copy of 
the petition to the Assistant Attorney General having supervisory 
authority over the subject matter and, if the petition is denied, shall 
promptly notify the Assistant Attorney General.

(5 U.S.C. 301, 18 U.S.C. 3401(f))

[Order No. 903-80, 45 FR 50564, July 30, 1980, as amended by Order No. 
2012-96, 61 FR 8473, Mar. 5, 1996]



PART 54--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A--Introduction

Sec.
54.100  Purpose and effective date.
54.105  Definitions.
54.110  Remedial and affirmative action and self-evaluation.
54.115  Assurance required.
54.120  Transfers of property.
54.125  Effect of other requirements.
54.130  Effect of employment opportunities.
54.135  Designation of responsible employee and adoption of grievance 
          procedures.
54.140  Dissemination of policy.

                           Subpart B--Coverage

54.200  Application.
54.205  Educational institutions and other entities controlled by 
          religious organizations.
54.210  Military and merchant marine educational institutions.
54.215  Membership practices of certain organizations.
54.220  Admissions.
54.225  Educational institutions eligible to submit transition plans.
54.230  Transition plans.
54.235  Statutory amendments.

     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

54.300  Admission.
54.305  Preference in admission.
54.310  Recruitment.

 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

54.400  Education programs or activities.
54.405  Housing.
54.410  Comparable facilities.
54.415  Access to course offerings.
54.420  Access to schools operated by LEAs.
54.425  Counseling and use of appraisal and counseling materials.
54.430  Financial assistance.
54.435  Employment assistance to students.
54.440  Health and insurance benefits and services.
54.445  Marital or parental status.
54.450  Athletics.
54.455  Textbooks and curricular material.

Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

54.500  Employment.
54.505  Employment criteria.
54.510  Recruitment.
54.515  Compensation.
54.520  Job classification and structure.
54.525  Fringe benefits.
54.530  Marital or parental status.
54.535  Effect of state or local law or other requirements.
54.540  Advertising.
54.545  Pre-employment inquiries.

[[Page 102]]

54.550  Sex as a bona fide occupational qualification.

                          Subpart F--Procedures

54.600  Notice of covered programs.
54.605  Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: Order No. 2320-2000, 65 FR 52865, 52880, Aug. 30, 2000, 
unless otherwise noted.



                         Subpart A--Introduction



Sec. 54.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 54.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means the Assistant Attorney General, 
Civil Rights Division.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;

[[Page 103]]

    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Secs. 54.100 
through 54.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec. 54.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive

[[Page 104]]

Order 12086, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 54.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec. 54.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 54.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Secs. 54.205 through 54.235(a).

[[Page 105]]



Sec. 54.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec. 54.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 54.135  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 54.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Secs. 54.300 through 54.310 do not apply to the recipient, and 
that inquiries concerning the application of Title IX and

[[Page 106]]

these Title IX regulations to such recipient may be referred to the 
employee designated pursuant to Sec. 54.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B--Coverage



Sec. 54.200  Application.

    Except as provided in Secs. 54.205 through 54.235(a), these Title IX 
regulations apply to every recipient and to each education program or 
activity operated by such recipient that receives Federal financial 
assistance.



Sec. 54.205  Educational institutions and other entities controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 54.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 54.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the

[[Page 107]]

membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 54.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Secs. 54.225 and 54.230, and Secs. 54.300 through 54.310, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Secs. 54.300 through .310. Except as provided in 
paragraphs (d) and (e) of this section, Secs. 54.300 through 54.310 
apply to each recipient. A recipient to which Secs. 54.300 through 
54.310 apply shall not discriminate on the basis of sex in admission or 
recruitment in violation of Secs. 54.300 through 54.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Secs. 54.300 through 54.310 apply only to institutions of vocational 
education, professional education, graduate higher education, and public 
institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Secs. 54.300 through 54.310 do not apply to any public institution of 
undergraduate higher education that traditionally and continually from 
its establishment has had a policy of admitting students of only one 
sex.



Sec. 54.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Secs. 54.300 through 54.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Secs. 54.300 through 54.310.



Sec. 54.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 54.225 applies 
and that is composed of more than one administratively separate unit may 
submit either a single transition plan applicable to all such units, or 
a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 54.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Secs. 54.300 through 54.310 
unless such treatment is necessitated by an obstacle identified in 
paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle

[[Page 108]]

has been provided as required by paragraph (b)(4) of this section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 54.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 54.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or 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 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) 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
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational

[[Page 109]]

operations, faculty and student housing, campus shuttle bus service, 
campus restaurants, the bookstore, and other commercial activities are 
part of a ``program or activity'' subject to these Title IX regulations 
if the college, university, or other institution receives Federal 
financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 54.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Secs. 54.300 through Secs. 54.310 apply, except as 
provided in Secs. 54.225 and Secs. 54.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Secs. 54.300 through 54.310 apply 
shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Secs. 54.300 through 54.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 54.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 54.305  Preference in admission.

    A recipient to which Secs. 54.300 through 54.310 apply shall not 
give preference to

[[Page 110]]

applicants for admission, on the basis of attendance at any educational 
institution or other school or entity that admits as students only or 
predominantly members of one sex, if the giving of such preference has 
the effect of discriminating on the basis of sex in violation of 
Secs. 54.300 through 54.310.



Sec. 54.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Secs. 54.300 
through 54.310 apply shall not discriminate on the basis of sex in the 
recruitment and admission of students. A recipient may be required to 
undertake additional recruitment efforts for one sex as remedial action 
pursuant to Sec. 54.110(a), and may choose to undertake such efforts as 
affirmative action pursuant to Sec. 54.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Secs. 54.300 through 54.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Secs. 54.300 through 54.310.



 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 54.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
54.400 through 54.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Secs. 54.300 through 54.310 do not 
apply, or an entity, not a recipient, to which Secs. 54.300 through 
54.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Secs. 54.400 
through 54.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires

[[Page 111]]

participation by any applicant, student, or employee in any education 
program or activity not operated wholly by such recipient, or that 
facilitates, permits, or considers such participation as part of or 
equivalent to an education program or activity operated by such 
recipient, including participation in educational consortia and 
cooperative employment and student-teaching assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 54.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec. 54.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 54.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.

[[Page 112]]

    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 54.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 54.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 54.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.

[[Page 113]]

    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 54.450.



Sec. 54.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates 
Secs. 54.500 through 54.550.



Sec. 54.440  Health and insurance benefits and services.

    Subject to Sec. 54.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Secs. 54.500 through 54.550 if it were provided to employees of 
the recipient. This section shall not prohibit a recipient from 
providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec. 54.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 54.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy

[[Page 114]]

and recovery therefrom in the same manner and under the same policies as 
any other temporary disability with respect to any medical or hospital 
benefit, service, plan, or policy that such recipient administers, 
operates, offers, or participates in with respect to students admitted 
to the recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 54.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.

[[Page 115]]



Sec. 54.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 54.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Secs. 54.500 
through 54.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Secs. 54.500 through 54.550 apply 
to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 54.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 54.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex

[[Page 116]]

in the recruitment or hiring of employees, or has been found to have so 
discriminated in the past, the recipient shall recruit members of the 
sex so discriminated against so as to overcome the effects of such past 
or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Secs. 54.500 through 54.550.



Sec. 54.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 54.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 54.550.



Sec. 54.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 54.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 54.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 54235(d), a 
recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a

[[Page 117]]

leave policy for its employees, or in the case of an employee with 
insufficient leave or accrued employment time to qualify for leave under 
such a policy, a recipient shall treat pregnancy, childbirth, false 
pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 54.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Secs. 54.500 through 54.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 54.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 54.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 54.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Secs. 54.500 
through 54.550 provided it is shown that sex is a bona fide occupational 
qualification for that action, such that consideration of sex with 
regard to such action is essential to successful operation of the 
employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F--Procedures



Sec. 54.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec. 54.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 28 CFR 42.106 through 42.111.

[Order No. 2320-2000, 65 FR 52881, Aug. 30, 2000]

[[Page 118]]



PART 55--IMPLEMENTATION OF THE PROVISIONS OF THE VOTING RIGHTS ACT REGARDING LANGUAGE MINORITY GROUPS--Table of Contents




                      Subpart A--General Provisions

Sec.
55.1  Definitions.
55.2  Purpose; standards for measuring compliance.
55.3  Statutory requirements.

                      Subpart B--Nature of Coverage

55.4  Effective date; list of covered jurisdictions.
55.5  Coverage under section 4(f)(4).
55.6  Coverage under section 203(c).
55.7  Termination of coverage.
55.8  Relationship between section 4(f)(4) and section 203(c).
55.9  Coverage of political units within a county.
55.10  Types of elections covered.

                Subpart C--Determining the Exact Language

55.11  General.
55.12  Language used for written material.
55.13  Language used for oral assistance and publicity.

          Subpart D--Minority Language Materials and Assistance

55.14  General.
55.15  Affected activities.
55.16  Standards and proof of compliance.
55.17  Targeting.
55.18  Provision of minority language materials and assistance.
55.19  Written materials.
55.20  Oral assistance and publicity.
55.21  Record keeping.

                         Subpart E--Preclearance

55.22  Requirements of section 5 of the Act.

                          Subpart F--Sanctions

55.23  Enforcement by the Attorney General.

                     Subpart G--Comment on This Part

55.24  Procedure.

Appendix to Part 55--Jurisdictions Covered Under Sections 4(f)(4) and 
          203(c) of the Voting Rights Act of 1965, as Amended

    Authority 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 1973b, 
1973j(d), 1973aa-la, 1973aa-2.

    Source: Order No. 655-76, 41 FR 29998, July 20, 1976, unless 
otherwise noted.



                      Subpart A--General Provisions



Sec. 55.1  Definitions.

    As used in this part--
    Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended by 
the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act 
Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act, 
84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400, 
the Voting Rights Act Amendments of 1982, 96 Stat. 131, and the Voting 
Rights Language Assistance Act of 1992, Public Law 102-344, 106 Stat. 
921, 42 U.S.C. 1973 et seq. Section numbers, such as ``section 
14(c)(3),'' refer to sections of the Act.
    Attorney General means the Attorney General of the United States.
    Language minorities or language minority group is used, as defined 
in the Act, to refer to persons who are American Indian, Asian American, 
Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and 203(e)).
    Political subdivision is used, as defined in the Act, to refer to 
``any county or parish, except that where registration for voting is not 
conducted under the supervision of a county or parish, the term shall 
include any other subdivision of a State which conducts registration for 
voting.'' (Section 14(c)(2)).

[Order 1246-87, 53 FR 735, Jan. 12, 1988, as amended by Order No. 1752-
93, 58 FR 35372, July 1, 1993]



Sec. 55.2  Purpose; standards for measuring compliance.

    (a) The purpose of this part is to set forth the Attorney General's 
interpretation of the provisions of the Voting Rights Act which require 
certain States and political subdivisions to conduct elections in the 
language of certain ``language minority groups'' in addition to English.
    (b) In the Attorney General's view the objective of the Act's 
provisions is to enable members of applicable language minority groups 
to participate effectively in the electoral process. This part 
establishes two basic standards by which the Attorney General will 
measure compliance:
    (1) That materials and assistance should be provided in a way 
designed to allow members of applicable language

[[Page 119]]

minority groups to be effectively informed of and participate 
effectively in voting-connected activities; and
    (2) That an affected jurisdiction should take all reasonable steps 
to achieve that goal.
    (c) The determination of what is required for compliance with 
section 4(f)(4) and section 203(c) is the responsibility of the affected 
jurisdiction. These guidelines should not be used as a substitute for 
analysis and decision by the affected jurisdiction.
    (d) Jurisdictions covered under section 4(f)(4) of the Act are 
subject to the preclearance requirements of section 5. See part 51 of 
this chapter. Such jurisdictions have the burden of establishing to the 
satisfaction of the Attorney General or to the U.S. District Court for 
the District of Columbia that changes made in their election laws and 
procedures in order to comply with the requirements of section 4(f)(4) 
are not discriminatory under the terms of section 5. However, section 5 
expressly provides that the failure of the Attorney General to object 
does not bar any subsequent judicial action to enjoin the enforcement of 
the changes.
    (e) Jurisdictions covered solely under section 203(c) of the Act are 
not subject to the preclearance requirements of section 5, nor is there 
a Federal apparatus available for preclearance of section 203(c) 
compliance activities. The Attorney General will not preclear 
jurisdictions' proposals for compliance with section 203(c).
    (f) Consideration by the Attorney General of a jurisdiction's 
compliance with the requirements of section 4(f)(4) occurs in the review 
pursuant to section 5 of the Act of changes with respect to voting, in 
the consideration of the need for litigation to enforce the requirements 
of section 4(f)(4), and in the defense of suits for termination of 
coverage under section 4(f)(4). Consideration by the Attorney General of 
a jurisdiction's compliance with the requirements of section 203(c) 
occurs in the consideration of the need for litigation to enforce the 
requirements of section 203(c).
    (g) In enforcing the Act--through the section 5 preclearance review 
process, through litigation, and through defense of suits for 
termination of coverage under section 4(f)(4)--the Attorney General will 
follow the general policies set forth in this part.
    (h) This part is not intended to preclude affected jurisdictions 
from taking additional steps to further the policy of the Act. By virtue 
of the Supremacy Clause of Art. VI of the Constitution, the provisions 
of the Act override any inconsistent State law.

[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87, 
53 FR 736, Jan. 12, 1988]



Sec. 55.3  Statutory requirements.

    The Act's requirements concerning the conduct of elections in 
languages in addition to English are contained in section 4(f)(4) and 
section 203(c). These sections state that whenever a jurisdiction 
subject to their terms ``provides any registration or voting notices, 
forms, instructions, assistance, or other materials or information 
relating to the electoral process, including ballots, it shall provide 
them in the language of the applicable language minority group as well 
as in * * * English. * * *''



                      Subpart B--Nature of Coverage



Sec. 55.4  Effective date; list of covered jurisdictions.

    (a) The minority language provisions of the Voting Rights Act were 
added by the Voting Rights Act Amendments of 1975.
    (1) The requirements of section 4(f)(4) take effect upon publication 
in the Federal Register of the requisite determinations of the Director 
of the Census and the Attorney General. Such determinations are not 
reviewable in any court.
    (2) The requirements of section 203(c) take effect upon publication 
in the Federal Register of the requisite determinations of the Director 
of the Census. Such determinations are not reviewable in any court.
    (b) Jurisdictions determined to be covered under section 4(f)(4) or 
section 203(c) are listed, together with the language minority group 
with respect to which coverage was determined, in the appendix to this 
part. Any additional

[[Page 120]]

determinations of coverage under either section 4(f)(4) or section 
203(c) will be published in the Federal Register.

[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87, 
53 FR 736, Jan. 12, 1988]



Sec. 55.5  Coverage under section 4(f)(4).

    (a) Coverage formula. Section 4(f)(4) applies to any State or 
political subdivision in which
    (1) Over five percent of the voting-age citizens were, on November 
1, 1972, members of a single language minority group,
    (2) Registration and election materials were provided only in 
English on November 1, 1972, and
    (3) Fewer than 50 percent of the voting-age citizens were registered 
to vote or voted in the 1972 Presidential election.

All three conditions must be satisfied before coverage exists under 
section 4(f)(4). \1\
---------------------------------------------------------------------------

     \1\Coverage is based on sections 4(b) (third sentence), 4(c), and 
4(f)(3).
---------------------------------------------------------------------------

    (b) Coverage may be determined with regard to section 4(f)(4) on a 
statewide or political subdivision basis.
    (1) Whenever the determination is made that the bilingual 
requirements of section 4(f)(4) are applicable to an entire State, these 
requirements apply to each of the State's political subdivisions as well 
as to the State. In other words, each political subdivision within a 
covered State is subject to the same requirements as the State.
    (2) Where an entire State is not covered under section 4(f)(4), 
individual political subdivisions may be covered.



Sec. 55.6  Coverage under section 203(c).

    (a) Coverage formula. There are four ways in which a political 
subdivision can become subject to section 203(c).\2\
---------------------------------------------------------------------------

    \2\ The criteria for coverage are contained in section 203(b).
---------------------------------------------------------------------------

    (1) Political subdivision approach. A political subdivision is 
covered if--
    (i) More than 5 percent of its voting age citizens are members of a 
single language minority group and are limited-English proficient; and
    (ii) The illiteracy rate of such language minority citizens in the 
political subdivision is higher than the national illiteracy rate.
    (2) State approach. A political subdivision is covered if--
    (i) It is located in a state in which more than 5 percent of the 
voting age citizens are members of a single language minority and are 
limited-English proficient;
    (ii) The illiteracy rate of such language minority citizens in the 
state is higher than the national illiteracy rate; and
    (iii) Five percent or more of the voting age citizens of the 
political subdivision are members of such language minority group and 
are limited-English proficient.
    (3) Numerical approach. A political subdivision is covered if--
    (i) More than 10,000 of its voting age citizens are members of a 
single language minority group and are limited-English proficient; and
    (ii) The illiteracy rate of such language minority citizens in the 
political subdivision is higher than the national illiteracy rate.
    (4) Indian reservation approach. A political subdivision is covered 
if there is located within its borders all or any part of an Indian 
reservation--
    (i) In which more than 5 percent of the voting age American Indian 
or Alaska Native citizens are members of a single language minority 
group and are limited-English proficient; and
    (ii) The illiteracy rate of such language minority citizens is 
higher than the national illiteracy rate.
    (b) Definitions. For the purpose of determinations of coverage under 
section 203(c), limited-English proficient means unable to speak or 
understand English adequately enough to participate in the electoral 
process; Indian reservation means any area that is an American Indian or 
Alaska Native area, as defined by the Census Bureau for the purposes of 
the 1990 decennial census; and illiteracy means the failure to complete 
the fifth primary grade.
    (c) Determinations. Determinations of coverage under section 203(c) 
are made with regard to specific language groups of the language 
minorities listed in section 203(e).

[Order No. 1752-93, 58 FR 35372, July 1, 1993]

[[Page 121]]



Sec. 55.7  Termination of coverage.

    (a) Section 4(f)(4). A covered State, a political subdivision of a 
covered State, or a separately covered political subdivision may 
terminate the application of section 4(f)(4) by obtaining the 
declaratory judgment described in section 4(a) of the Act.
    (b) Section 203(c). The requirements of section 203(c) apply until 
August 6, 2007. A covered jurisdiction may terminate such coverage 
earlier if it can prove in a declaratory judgment action in a United 
States district court, that the illiteracy rate of the applicable 
language minority group is equal to or less than the national illiteracy 
rate.

[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87, 
53 FR 736, Jan. 12, 1988; Order No. 1752-93, 58 FR 35373, July 1, 1993]



Sec. 55.8  Relationship between section 4(f)(4) and section 203(c).

    (a) The statutory requirements of section 4(f)(4) and section 203(c) 
regarding minority language material and assistance are essentially 
identical.
    (b) Jurisdictions subject to the requirements of section 4(f)(4)--
but not jurisdictions subject only to the requirements of section 
203(c)--are also subject to the Act's special provisions, such as 
section 5 (regarding preclearance of changes in voting laws) and section 
6 (regarding Federal examiners). \3\ See part 51 of this chapter.
---------------------------------------------------------------------------

    \3\ In addition, a jurisdiction covered under section 203(c) but not 
under section 4(f)(4) is subject to the Act's special provisions if it 
was covered under section 4(b) prior to the 1975 Amendments to the Act.
---------------------------------------------------------------------------

    (c) Although the coverage formulas applicable to section 4(f)(4) and 
section 203(c) are different, a political subdivision may be included 
within both of the coverage formulas. Under these circumstances, a 
judgment terminating coverage of the jurisdiction under one provision 
would not have the effect of terminating coverage under the other 
provision.



Sec. 55.9  Coverage of political units within a county.

    Where a political subdivision (e.g., a county) is determined to be 
subject to section 4(f)(4) or section 203(c), all political units that 
hold elections within that political subdivision (e.g., cities, school 
districts) are subject to the same requirements as the political 
subdivision.



Sec. 55.10  Types of elections covered.

    (a) General. The language provisions of the Act apply to 
registration for and voting in any type of election, whether it is a 
primary, general or special election. Section 14(c)(1). This includes 
elections of officers as well as elections regarding such matters as 
bond issues, constitutional amendments and referendums. Federal, State 
and local elections are covered as are elections of special districts, 
such as school districts and water districts.
    (b) Elections for statewide office. If an election conducted by a 
county relates to Federal or State offices or issues as well as county 
offices or issues, a county subject to the bilingual requirements must 
insure compliance with those requirements with respect to all aspects of 
the election, i.e., the minority language material and assistance must 
deal with the Federal and State offices or issues as well as county 
offices or issues.
    (c) Multi-county districts. Regarding elections for an office 
representing more than one county, e.g., State legislative districts and 
special districts that include portions of two or more counties, the 
bilingual requirements are applicable on a county-by-county basis. Thus, 
minority language material and assistance need not be provided by the 
government in counties not subject to the bilingual requirements of the 
Act.



                Subpart C--Determining the Exact Language



Sec. 55.11  General.

    The requirements of section 4(f)(4) or section 203(c) apply with 
respect to the languages of language minority groups. The applicable 
groups are indicated in the determinations of the Attorney General or 
the Director of the Census. This subpart relates to the view of the 
Attorney General concerning the determination by covered jurisdictions 
of precisely the language to be employed. In enforcing the Act, the 
Attorney

[[Page 122]]

General will consider whether the languages, forms of languages, or 
dialects chosen by covered jurisdictions for use in the electoral 
process enable members of applicable language minority groups to 
participate effectively in the electoral process. It is the 
responsibility of covered jurisdictions to determine what languages, 
forms of languages, or dialects will be effective. For those 
jurisdictions covered under section 203(c), the coverage determination 
(indicated in the appendix) specifies the particular language for which 
the jurisdiction was covered and which thus, under section 203(c), is 
required to be used.

[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87, 
53 FR 736, Jan. 12, 1988]



Sec. 55.12  Language used for written material.

    (a) Language minority groups having more than one language. Some 
language minority groups, for example, Filipino Americans, have more 
than one language other than English. A jurisdiction required to provide 
election materials in the language of such a group need not provide 
materials in more than one language other than English. The Attorney 
General will consider whether the language that is used for election 
materials is the one most widely used by the jurisdiction's voting-age 
citizens who are members of the language minority group.
    (b) Languages with more than one written form. Some languages, for 
example, Japanese, have more than one written form. A jurisdiction 
required to provide election materials in such a language need not 
provide more than one version. The Attorney General will consider 
whether the particular version of the language that is used for election 
materials is the one most widely used by the jurisdiction's voting-age 
citizens who are members of the language minority group.
    (c) Unwritten languages. Many of the languages used by language 
minority groups, for example, by some American Indians and Alaskan 
Natives, are unwritten. With respect to any such language, only oral 
assistance and publicity are required. Even though a written form for a 
language may exist, a language may be considered unwritten if it is not 
commonly used in a written form. It is the responsibility of the covered 
jurisdiction to determine whether a language should be considered 
written or unwritten.



Sec. 55.13  Language used for oral assistance and publicity.

    (a) Languages with more than one dialect. Some languages, for 
example, Chinese, have several dialects. Where a jurisdiction is 
obligated to provide oral assistance in such a language, the 
jurisdiction's obligation is to ascertain the dialects that are commonly 
used by members of the applicable language minority group in the 
jurisdiction and to provide oral assistance in such dialects. (See 
Sec. 55.20.)
    (b) Language minority groups having more than one language. In some 
jurisdictions members of an applicable language minority group speak 
more than one language other than English. Where a jurisdiction is 
obligated to provide oral assistance in the language of such a group, 
the jurisdiction's obligation is to ascertain the languages that are 
commonly used by members of that group in the jurisdiction and to 
provide oral assistance in such languages. (See Sec. 55.20)

[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87, 
53 FR 736, Jan. 12, 1988; Order No. 1752-93, 58 FR 35373, July 1, 1993]



          Subpart D--Minority Language Materials and Assistance



Sec. 55.14  General.

    (a) This subpart sets forth the views of the Attorney General with 
respect to the requirements of section 4(f)(4) and section 203(c) 
concerning the provision of minority language materials and assistance 
and some of the factors that the Attorney General will consider in 
carrying out his responsibilities to enforce section 4(f)(4) and section 
203(c). Through the use of his authority under section 5 and his 
authority to bring suits to enforce section 4(f)(4) and section 203(c), 
the Attorney General will seek to prevent or remedy discrimination 
against members of language minority groups based on the failure to use 
the applicable minority

[[Page 123]]

language in the electoral process. The Attorney General also has the 
responsibility to defend against suits brought for the termination of 
coverage under section 4(f)(4) and section 203(c).
    (b) In discharging these responsibilities the Attorney General will 
respond to complaints received, conduct on his own initiative inquiries 
and surveys concerning compliance, and undertake other enforcement 
activities.
    (c) It is the responsibility of the jurisdiction to determine what 
actions by it are required for compliance with the requirements of 
section 4(f)(4) and section 203(c) and to carry out these actions.



Sec. 55.15  Affected activities.

    The requirements of sections 4(f)(4) and 203(c) apply with regard to 
the provision of ``any registration or voting notices, forms, 
instructions, assistance, or other materials or information relating to 
the electoral process, including ballots.'' The basic purpose of these 
requirements is to allow members of applicable language minority groups 
to be effectively informed of and participate effectively in voting-
connected activities. Accordingly, the quoted language should be broadly 
construed to apply to all stages of the electoral process, from voter 
registration through activities related to conducting elections, 
including, for example the issuance, at any time during the year, of 
notifications, announcements, or other informational materials 
concerning the opportunity to register, the deadline for voter 
registration, the time, places and subject matters of elections, and the 
absentee voting process.



Sec. 55.16  Standards and proof of compliance.

    Compliance with the requirements of section 4(f)(4) and section 
203(c) is best measured by results. A jurisdiction is more likely to 
achieve compliance with these requirements if it has worked with the 
cooperation of and to the satisfaction of organizations representing 
members of the applicable language minority group. In planning its 
compliance with section 4(f)(4) or section 203(c), a jurisdiction may, 
where alternative methods of compliance are available, use less costly 
methods if they are equivalent to more costly methods in their 
effectiveness.



Sec. 55.17  Targeting.

    The term ``targeting'' is commonly used in discussions of the 
requirements of section 4(f)(4) and section 203(c). ``Targeting'' refers 
to a system in which the minority language materials or assistance 
required by the Act are provided to fewer than all persons or registered 
voters. It is the view of the Attorney General that a targeting system 
will normally fulfill the Act's minority language requirements if it is 
designed and implemented in such a way that language minority group 
members who need minority language materials and assistance receive 
them.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
1752-93, 58 FR 35373, July 1, 1993]



Sec. 55.18  Provision of minority language materials and assistance.

    (a) Materials provided by mail. If materials provided by mail (or by 
some comparable form of distribution) generally to residents or 
registered voters are not all provided in the applicable minority 
language, the Attorney General will consider whether an effective 
targeting system has been developed. For example, a separate mailing of 
materials in the minority language to persons who are likely to need 
them or to residents of neighborhoods in which such a need is likely to 
exist, supplemented by a notice of the availability of minority language 
materials in the general mailing (in English and in the applicable 
minority language) and by other publicity regarding the availability of 
such materials may be sufficient.
    (b) Public notices. The Attorney General will consider whether 
public notices and announcements of electoral activities are handled in 
a manner that provides members of the applicable language minority group 
an effective opportunity to be informed about electoral activities.
    (c) Registration. The Attorney General will consider whether the 
registration system is conducted in such a way that members of the 
applicable language minority group have an effective

[[Page 124]]

opportunity to register. One method of accomplishing this is to provide, 
in the applicable minority language, all notices, forms and other 
materials provided to potential registrants and to have only bilingual 
persons as registrars. Effective results may also be obtained, for 
example, through the use of deputy registrars who are members of the 
applicable language minority group and the use of decentralized places 
of registration, with minority language materials available at places 
where persons who need them are most likely to come to register.
    (d) Polling place activities. The Attorney General will consider 
whether polling place activities are conducted in such a way that 
members of the applicable language minority group have an effective 
opportunity to vote. One method of accomplishing this is to provide all 
notices, instructions, ballots, and other pertinent materials and oral 
assistance in the applicable minority language. If very few of the 
registered voters scheduled to vote at a particular polling place need 
minority language materials or assistance, the Attorney General will 
consider whether an alternative system enabling those few to cast 
effective ballots is available.
    (e) Publicity. The Attorney General will consider whether a covered 
jurisdiction has taken appropriate steps to publicize the availability 
of materials and assistance in the minority language. Such steps may 
include the display of appropriate notices, in the minority language, at 
voter registration offices, polling places, etc., the making of 
announcements over minority language radio or television stations, the 
publication of notices in minority language newspapers, and direct 
contact with language minority group organizations.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
733-77, 42 FR 35970, July 13, 1977]



Sec. 55.19  Written materials.

    (a) Types of materials. It is the obligation of the jurisdiction to 
decide what materials must be provided in a minority language. A 
jurisdiction required to provide minority language materials is only 
required to publish in the language of the applicable language minority 
group materials distributed to or provided for the use of the electorate 
generally. Such materials include, for example, ballots, sample ballots, 
informational materials, and petitions.
    (b) Accuracy, completeness. It is essential that material provided 
in the language of a language minority group be clear, complete and 
accurate. In examining whether a jurisdiction has achieved compliance 
with this requirement, the Attorney General will consider whether the 
jurisdiction has consulted with members of the applicable language 
minority group with respect to the translation of materials.
    (c) Ballots. The Attorney General will consider whether a 
jurisdiction provides the English and minority language versions on the 
same document. Lack of such bilingual preparation of ballots may give 
rise to the possibility, or to the appearance, that the secrecy of the 
ballot will be lost if a separate minority language ballot or voting 
machine is used.
    (d) Voting machines. Where voting machines that cannot mechanically 
accommodate a ballot in English and in the applicable minority language 
are used, the Attorney General will consider whether the jurisdiction 
provides sample ballots for use in the polling booths. Where such sample 
ballots are used the Attorney General will consider whether they contain 
a complete and accurate translation of the English ballots, and whether 
they contain or are accompanied by instructions in the minority language 
explaining the operation of the voting machine. The Attorney General 
will also consider whether the sample ballots are displayed so that they 
are clearly visible and at the same level as the machine ballot on the 
inside of the polling booth, whether the sample ballots are identical in 
layout to the machine ballots, and whether their size and typeface are 
the same as that appearing on the machine ballots. Where space 
limitations preclude affixing the translated sample ballots to the 
inside of polling booths, the Attorney General will consider whether 
language minority group voters are allowed to take the sample ballots 
into the voting booths.

[[Page 125]]



Sec. 55.20  Oral assistance and publicity.

    (a) General. Announcements, publicity, and assistance should be 
given in oral form to the extent needed to enable members of the 
applicable language minority group to participate effectively in the 
electoral process.
    (b) Assistance. The Attorney General will consider whether a 
jurisdiction has given sufficient attention to the needs of language 
minority group members who cannot effectively read either English or the 
applicable minority language and to the needs of members of language 
minority groups whose languages are unwritten.
    (c) Helpers. With respect to the conduct of elections, the 
jurisdiction will need to determine the number of helpers (i.e., persons 
to provide oral assistance in the minority language) that must be 
provided. In evaluating the provision of assistance, the Attorney 
General will consider such facts as the number of a precinct's 
registered voters who are members of the applicable language minority 
group, the number of such persons who are not proficient in English, and 
the ability of a voter to be assisted by a person of his or her own 
choice. The basic standard is one of effectiveness.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
1752-93, 58 FR 35373, July 1, 1993]



Sec. 55.21  Record keeping.

    The Attorney General's implementation of the Act's provisions 
concernng language minority groups would be facilitated if each covered 
jurisdiction would maintain such records and data as will document its 
actions under those provisions, including, for example, records on such 
matters as alternatives considered prior to taking such actions, and the 
reasons for choosing the actions finally taken.



                         Subpart E--Preclearance



Sec. 55.22  Requirements of section 5 of the Act.

    For many jurisdictions, changes in voting laws and practices will be 
necessary in order to comply with section 4(f)(4) or section 203(c). If 
a jurisdiction is subject to the preclearance requirements of section 5 
(see Sec. 55.8(b)), such changes must either be submitted to the 
Attorney General or be made the subject of a declaratory judgment action 
in the U.S. District Court for the District of Columbia. Procedures for 
the administration of section 5 are set forth in part 51 of this 
chapter.



                          Subpart F--Sanctions



Sec. 55.23  Enforcement by the Attorney General.

    (a) The Attorney General is authorized to bring civil actions for 
appropriate relief against violations of the Act's provisions, including 
section 4 and section 203. See sections 12(d) and 204.
    (b) Also, certain violations may be subject to criminal sanctions. 
See sections 11(a)-(c) and 205.



                     Subpart G--Comment on This Part



Sec. 55.24  Procedure.

    These guidelines may be modified from time to time on the basis of 
experience under the Act and comments received from interested parties. 
The Attorney General therefore invites public comments and suggestions 
on these guidelines. Any party who wishes to make such suggestions or 
comments may do so by sending them to: Assistant Attorney General, Civil 
Rights Division, Department of Justice, Washington, DC 20530.

 Appendix to Part 55--Jurisdictions Covered Under Sections 4(f)(4) and 
           203(c) of the Voting Rights Act of 1965, as Amended

                 [Applicable language minority group(s)]
------------------------------------------------------------------------
                               Coverage under sec.   Coverage under sec.
        Jurisdiction               4(f)(4) \1\           203(c) \2\
------------------------------------------------------------------------
Alaska:                       Alaskan Natives       ....................
                               (statewide).
    Aleutians East Borough..  ....................  Alaskan Natives
                                                     (Eskimo).
    Aleutians West Census     ....................  Alaskan Natives
     Area.                                           (Aleut).

[[Page 126]]

 
    Bethel Census Area......  ....................  American Indian
                                                     (Athapascan,
                                                     Tanaina), Alaskan
                                                     Natives (Eskimo).
    Bristol Bay Borough.....  ....................  Alaskan Natives
                                                     (Eskimo).
    Dillingham Census Area..  ....................  Alaskan Natives
                                                     (Eskimo).
    Kenai Peninsula Borough.  ....................  Alaskan Natives
                                                     (Eskimo).
    Kodiak Island Borough...  ....................  Alaskan Natives
                                                     (Aleut, Eskimo).
    Lake and Peninsula        ....................  American Indian
     Borough.                                        (Athapascan),
                                                     Alaskan Natives
                                                     (Aleut, Eskimo).
    Nome Census Area........  ....................  Alaskan Natives
                                                     (Eskimo).
    North Slope Borough.....  ....................  Alaskan Natives
                                                     (Eskimo).
    Northwest Arctic Borough  ....................  Alaskan Natives
                                                     (Eskimo).
    Skagway-Yakutat-Angoon    ....................  American Indian
     Census Area.                                    (Tlinglit).
    Southeast Fairbanks       ....................  American Indian
     Census Area.                                    (Athapascan).
    Valdez-Cordova Census     ....................  American Indian
     Area.                                           (Athapascan).
    Wade Hampton Census Area  ....................  Alaskan Natives
                                                     (Eskimo).
    Yukon-Koyukuk Census      ....................  American Indian
     Area.                                           (Athapascan,
                                                     Kuchin), Alaskan
                                                     Natives (Eskimo).
Arizona:                      Spanish heritage      ....................
                               (statewide).
    Apache County...........  American Indian.....  American Indian
                                                     (Apache, Navajo,
                                                     Zuni).
    Coconino County.........  American Indian.....  American Indian
                                                     (Havasupai, Hopi,
                                                     Navajo).
    Gila County.............  ....................  American Indian
                                                     (Apache).
    Graham County...........  ....................  American Indian
                                                     (Apache).
    Greenlee County.........  ....................  Spanish heritage.
    Maricopa County.........  ....................  American Indian
                                                     (Pima, Yavapai),
                                                     Spanish heritage.
    Navajo County...........  American Indian.....  American Indian
                                                     (Apache, Hopi,
                                                     Navajo).
    Pima County.............  ....................  American Indian
                                                     (Pima), Spanish
                                                     heritage.
    Pinal County............  American Indian.....  American Indian
                                                     (Apache, Pima).
    Santa Cruz County.......  ....................  Spanish heritage.
    Yuma County.............  ....................  American Indian
                                                     (Delta River Yuma,
                                                     Yuma), Spanish
                                                     heritage.
California:                                         ....................
    Alameda County..........  ....................  Asian American
                                                     (Chinese), Spanish
                                                     heritage.
    Colusa County...........  ....................  American Indian
                                                     (Wintun).
    Fresno County...........  ....................  Spanish heritage.
    Imperial County.........  ....................  Spanish heritage.
    Inyo County.............  ....................  American Indian
                                                     (Spanish).
    Kern County.............  ....................  Spanish heritage.
    Kings County............  Spanish heritage....  Spanish heritage.
    Lake County.............  ....................  American Indian
                                                     (Spanish).
    Los Angeles County......  ....................  Asian American
                                                     (Chinese, Filipino,
                                                     Japanese,
                                                     Vietnamese),
                                                     Spanish heritage.
    Merced County...........  Spanish heritage....  ....................
    Monterey County.........  ....................  Spanish heritage.
    Orange County...........  ....................  Asian American
                                                     (Vietnamese),
                                                     Spanish heritage.
    Riverside County........  ....................  Spanish heritage.
    San Benito County.......  ....................  Spanish heritage
    San Bernardino County...  ....................  Spanish heritage.
    San Diego County........  ....................  Spanish heritage.
    San Francisco County....  ....................  Asian American
                                                     (Chinese).
    Santa Clara County......  ....................  Spanish heritage.
    Tulare County...........  ....................  Spanish heritage.
    Ventura County..........  ....................  Spanish heritage.
    Yuba County.............  Spanish heritage....  ....................
Colorado:
    Alamosa County..........  ....................  Spanish heritage.
    Archuleta County........  ....................  Spanish heritage.
    Bent County.............  ....................  Spanish heritage.
    Conejos County..........  ....................  Spanish heritage.
    Costilla County.........  ....................  Spanish heritage.
    La Plata County.........  ....................  American Indian
                                                     (Ute).
    Las Animas County.......  ....................  Spanish heritage.
    Montezuma County........  ....................  American Indian
                                                     (Ute).
    Otero County............  ....................  Spanish heritage.
    Rio Grande County.......  ....................  Spanish heritage.
    Saguache County.........  ....................  Spanish heritage.
Connecticut:
    Fairfield County:         ....................  Spanish heritage.
     Bridgeport Town.

[[Page 127]]

 
    Hartford County:
      Hartford Town.........  ....................  Spanish heritage.
      New Britain Town......  ....................  Spanish heritage.
    Windham County: Windham   ....................  Spanish heritage.
     Town.
Florida:
    Broward County..........  ....................  American Indian
                                                     (Mikasuki,
                                                     Muskogee), Spanish
                                                     heritage.
    Collier County..........  Spanish heritage....  American Indian
                                                     (Mikasuki).
    Dade County.............  ....................  American Indian
                                                     (Mikasuki), Spanish
                                                     heritage.
    Glades County...........  ....................  American Indian
                                                     (Muskogee).
    Hardee County...........  Spanish heritage....  Spanish heritage.
    Hendry County...........  Spanish heritage....  American Indian
                                                     (Mikasuki,
                                                     Muskogee).
    Hillsborough County.....  Spanish heritage....  Spanish heritage.
    Orange County...........  ....................  Spanish heritage.
    Monroe County...........  Spanish heritage....  ....................
Hawaii:
    Honolulu County.........  ....................  Asian American
                                                     (Filipino,
                                                     Japanese).
    Kauai County............  ....................  Asian American
                                                     (Filipino).
    Maui County.............  ....................  Asian American
                                                     (Filipino).
Idaho:
    Bannock County..........  ....................  American Indian
                                                     (Shoshoni).
    Bingham County..........  ....................  American Indian
                                                     (Shoshoni).
    Owyhee County...........  ....................  American Indian
                                                     (Shoshoni).
    Power County............  ....................  American Indian
                                                     (Shoshoni).
Illinois: Cook County.......  ....................  Spanish heritage.
Iowa: Tama County...........  ....................  American Indian
                                                     (Fox).
Louisiana: Avoyelles Parish.  ....................  American Indian
                                                     (French).
Massachusetts:
    Essex County: Lawrence    ....................  Spanish heritage.
     City.
    Hampden County:
      Holyoke City..........  ....................  Spanish heritage.
      Springfield City......  ....................  Spanish heritage.
    Suffolk County:
      Boston City...........  ....................  Spanish heritage.
      Chelsea City..........  ....................  Spanish heritage.
Michigan:
    Allegan County: Clyde     Spanish heritage....  Spanish heritage.
     Township.
    Oceana County: Colfax     ....................  Spanish heritage.
     Township.
    Saginaw County:
      Buena Vista Township..  Spanish heritage....  ....................
      Zilwaukee Township....  ....................  Spanish heritage.
Mississippi:
    Jones County............  ....................  American Indian
                                                     (Choctaw).
    Kemper County...........  ....................  American Indian
                                                     (Choctaw).
    Leake County............  ....................  American Indian
                                                     (Choctaw).
    Neshoba County..........  ....................  American Indian
                                                     (Choctaw).
    Newton County...........  ....................  American Indian
                                                     (Choctaw).
    Winston County..........  ....................  American Indian
                                                     (Choctaw).
Nevada:
    Elko County.............  ....................  American Indian
                                                     (Shoshoni).
    Humboldt County.........  ....................  American Indian
                                                     (Paiute).
New Jersey:
    Essex County............  ....................  Spanish heritage.
    Hudson County...........  ....................  Spanish heritage.
    Middlesex County........  ....................  Spanish heritage.
    Passaic County..........  ....................  Spanish heritage.
    Union County............  ....................  Spanish heritage.
New Mexico:
    Bernalillo County.......  ....................  American Indian
                                                     (Keres, Navajo,
                                                     Tiwa), Spanish
                                                     heritage.
    Chaves County...........  ....................  Spanish heritage.
    Cibola County...........  ....................  American Indian
                                                     (Keres, Navajo,
                                                     Zuni), Spanish
                                                     heritage.
    Colfax County...........  ....................  Spanish heritage.
    Dona Anna County........  ....................  Spanish heritage.
    Eddy County.............  ....................  Spanish heritage.
    Grant County............  ....................  Spanish heritage.
    Guadalupe County........  ....................  Spanish heritage.
    Harding County..........  ....................  Spanish heritage.
    Hidalgo County..........  ....................  Spanish heritage.
    Lea County..............  ....................  Spanish heritage.

[[Page 128]]

 
    Luna County.............  ....................  Spanish heritage.
    McKinley County.........  ....................  American Indian
                                                     (Navajo, Zuni).
    Mora County.............  ....................  Spanish heritage.
    Quay County.............  ....................  Spanish heritage.
    Rio Arriba County.......  ....................  American Indian
                                                     (Jicarilla,
                                                     Navajo), Spanish
                                                     heritage.
    Roosevelt County........  ....................  Spanish heritage.
    San Juan County.........  ....................  American Indian
                                                     (Navajo).
    San Miguel County.......  ....................  Spanish heritage.
    Sandoval County.........  ....................  American Indian
                                                     (Jicarilla, Keres,
                                                     Navajo, Towa).
    Santa Fe County.........  ....................  Spanish heritage.
    Socorro County..........  ....................  American Indian
                                                     (Navajo), Spanish
                                                     heritage.
    Taos County.............  ....................  American Indian
                                                     (Tiwa), Spanish
                                                     heritage.
    Torrance County.........  ....................  Spanish heritage.
    Union County............  ....................  Spanish heritage.
    Valencia County.........  ....................  American Indian
                                                     (Keres, Tiwa),
                                                     Spanish heritage.
New York:
    Bronx County............  Spanish heritage....  Spanish heritage.
    Franklin County.........  ....................  American Indian
                                                     (Mohawk).
    Kings County............  Spanish heritage....  Asian American
                                                     (Chinese), Spanish
                                                     heritage.
    New York County.........  ....................  Asian American
                                                     (Chinese), Spanish
                                                     heritage.
    Queens County...........  ....................  Asian American
                                                     (Chinese), Spanish
                                                     heritage.
    Suffolk County..........  ....................  Spanish heritage.
    Westchester County......  ....................  Spanish heritage.
North Carolina: Jackson       American Indian.....  ....................
 County.
North Dakota:
    Benson County...........  ....................  American Indian
                                                     (Dakota).
    Eddy County.............  ....................  American Indian
                                                     (Dakota).
    Ramsey County...........  ....................  American Indian
                                                     (Dakota).
Oklahoma: Adair County......  ....................  American Indian
                                                     (Cherokee).
Oregon: Malheur County......  ....................  American Indian
                                                     (Paiute).
Pennsylvania: Philadelphia    ....................  Spanish heritage.
 County.
Rhode Island:
    Providence County:        ....................  Spanish heritage.
     Central Falls City.
South Dakota:
    Dewey County............  ....................  American Indian
                                                     (Dakota).
    Gregory County..........  ....................  American Indian
                                                     (Dakota).
    Lyman County............  ....................  American Indian
                                                     (Dakota).
    Mellette County.........  ....................  American Indian
                                                     (Dakota).
    Shannon County..........  American Indian.....  ....................
    Todd County.............   American Indian....  American Indian
                                                     (Dakota).
    Tripp County............  ....................  American Indian
                                                     (Dakota).
    Ziebach County..........  ....................  American Indian
                                                     (Dakota).
Texas.......................  Spanish heritage      ....................
                               (statewide).
    Andrews County..........  ....................  Spanish heritage.
    Atascosa County.........  ....................  Spanish heritage.
    Bailey County...........  ....................  Spanish heritage.
    Bee County..............  ....................  Spanish heritage.
    Bexar County............  ....................  Spanish heritage.
    Brewster County.........  ....................  Spanish heritage.
    Brooks County...........  ....................  Spanish heritage.
    Caldwell County.........  ....................  Spanish heritage.
    Calhoun County..........  ....................  Spanish heritage.
    Cameron County..........  ....................  Spanish heritage.
    Castro County...........  ....................  Spanish heritage.
    Cochran County..........  ....................  Spanish heritage.
    Comal County............  ....................  Spanish heritage.
    Concho County...........  ....................  Spanish heritage.
    Crockett County.........  ....................  Spanish heritage.
    Crosby County...........  ....................  Spanish heritage.
    Culberson County........  ....................  Spanish heritage.
    Dallas County...........  ....................  Spanish heritage.
    Dawson County...........  ....................  Spanish heritage.
    Deaf Smith County.......  ....................  Spanish heritage.
    Dewitt County...........  ....................  Spanish heritage.

[[Page 129]]

 
    Dickens County..........  ....................  Spanish heritage.
    Dimmit County...........  ....................  Spanish heritage.
    Duval County............  ....................  Spanish heritage.
    Ector County............  ....................  Spanish heritage.
    Edwards County..........  ....................  Spanish heritage.
    El Paso County..........  ....................  American Indian
                                                     (Spanish), Spanish
                                                     heritage.
    Floyd County............  ....................  Spanish heritage.
    Frio County.............  ....................  Spanish heritage.
    Gaines County...........  ....................  Spanish heritage.
    Garza County............  ....................  Spanish heritage.
    Glasscock County........  ....................  Spanish heritage.
    Goliad County...........  ....................  Spanish heritage.
    Gonzales County.........  ....................  Spanish heritage.
    Guadalupe County........  ....................  Spanish heritage.
    Hale County.............  ....................  Spanish heritage.
    Harris County...........  ....................  Spanish heritage.
    Hays County.............  ....................  Spanish heritage.
    Hidalgo County..........  ....................  Spanish heritage.
    Hockley County..........  ....................  Spanish heritage.
    Howard County...........  ....................  Spanish heritage.
    Hudspeth County.........  ....................  Spanish heritage.
    Irion County............  ....................  Spanish heritage.
    Jeff Davis County.......  ....................  Spanish heritage.
    Jim Hogg County.........  ....................  Spanish heritage.
    Jim Wells County........  ....................  Spanish heritage.
    Karnes County...........  ....................  Spanish heritage.
    Kenedy County...........  ....................  Spanish heritage.
    Kent County.............  ....................  Spanish heritage.
    Kinney County...........  ....................  Spanish heritage.
    Kleberg County..........  ....................  Spanish heritage.
    La Salle County.........  ....................  Spanish heritage.
    Lamb County.............  ....................  Spanish heritage.
    Live Oak County.........  ....................  Spanish heritage.
    Lubbock County..........  ....................  Spanish heritage.
    Lynn County.............  ....................  Spanish heritage.
    Martin County...........  ....................  Spanish heritage.
    Maverick County.........  ....................  Spanish heritage.
    McCulloch County........  ....................  Spanish heritage.
    McMullen County.........  ....................  Spanish heritage.
    Medina County...........  ....................  Spanish heritage.
    Menard County...........  ....................  Spanish heritage.
    Midland County..........  ....................  Spanish heritage.
    Mitchell County.........  ....................  Spanish heritage.
    Moore County............  ....................  Spanish heritage.
    Nolan County............  ....................  Spanish heritage.
    Nueces County...........  ....................  Spanish heritage.
    Parmer County...........  ....................  Spanish heritage.
    Pecos County............  ....................  Spanish heritage.
    Polk County.............  ....................  American Indian
                                                     (Alabama).
    Presidio County.........  ....................  Spanish heritage.
    Reagan County...........  ....................  Spanish heritage.
    Reeves County...........  ....................  Spanish heritage.
    Refugio County..........  ....................  Spanish heritage.
    Runnels County..........  ....................  Spanish heritage.
    San Patricio County.....  ....................  Spanish heritage.
    Schleicher County.......  ....................  Spanish heritage.
    Scurry County...........  ....................  Spanish heritage.
    Starr County............  ....................  Spanish heritage.
    Sutton County...........  ....................  Spanish heritage.
    Swisher County..........  ....................  Spanish heritage.
    Tarrant County..........  ....................  Spanish heritage.
    Terrell County..........  ....................  Spanish heritage.
    Terry County............  ....................  Spanish heritage.
    Tom Green County........  ....................  Spanish heritage.
    Travis County...........  ....................  Spanish heritage.
    Upton County............  ....................  Spanish heritage.
    Uvalde County...........  ....................  Spanish heritage.
    Val Verde County........  ....................  Spanish heritage.
    Victoria County.........  ....................  Spanish heritage.
    Ward County.............  ....................  Spanish heritage.
    Webb County.............  ....................  Spanish heritage.

[[Page 130]]

 
    Wharton County..........  ....................  Spanish heritage.
    Willacy County..........  ....................  Spanish heritage.
    Wilson County...........  ....................  Spanish heritage.
    Winkler County..........  ....................  Spanish heritage.
    Yoakum County...........  ....................  Spanish heritage.
    Zapata County...........  ....................  Spanish heritage.
    Zavala County...........  ....................  Spanish heritage.
Utah: San Juan County.......  ....................  American Indian
                                                     (Navajo, Ute).
Wisconsin:
    Clark County: Curtiss     ....................  Spanish heritage.
     Village.
------------------------------------------------------------------------
\1\ Coverage determinations were published at 40 FR 43746 (Sept. 23,
  1975), 40 FR 49422 (Oct. 22, 1975), 41 FR 784 (Jan. 5, 1976)
  (corrected at 41 FR 1503 (Jan. 8, 1976)), and 41 FR 34329 (Aug. 13,
  1976). Covered counties in Colorado, New Mexico, and Oklahoma have
  bailed out pursuant to section 4(a). See Sec.  55.7(a) of this part.
\2\ Coverage determinations were published at 57 FR 43213 (Sept. 18,
  1992).


[Order No. 1752-93, 58 FR 35373, July 1, 1993; 58 FR 36516, July 7, 
1993]



PART 56--INTERNATIONAL ENERGY PROGRAM--Table of Contents




Sec.
56.1  Purpose and scope.
56.2  Maintenance of records with respect to meetings held to develop 
          voluntary agreements or plans of action pursuant to the 
          Agreement on an International Energy Program.
56.3  Maintenance of records with respect to meetings held to develop 
          and carry out voluntary agreements or plans of action pursuant 
          to the Agreement on an International Energy Program.

    Authority: Energy Policy and Conservation Act, Pub. L. 94-163, 89 
Stat. 871 (42 U.S.C. 6201).

    Source: 49 FR 33998, Aug. 28, 1984, unless otherwise noted.



Sec. 56.1  Purpose and scope.

    These regulations are promulgated pursuant to section 252(e)(2) of 
the Energy Policy and Conservation Act (EPCA), 42 U.S.C. 6272(e)(2). 
They are being issued by the Assistant Attorney General in charge of the 
Antitrust Division to whom the Attorney General has delegated his 
authority under this section of EPCA. The requirements of this part do 
not apply to activities other than those for which section 252 of EPCA 
makes available a defense to actions brought under the Federal antitrust 
laws.



Sec. 56.2  Maintenance of records with respect to meetings held to develop voluntary agreements or plans of action pursuant to the Agreement on an International 
          Energy Program.

    (a) The Administrator of the Department of Energy shall keep a 
verbatim transcript of any meeting held pursuant to this subpart.
    (b)(1) Except as provided in paragraphs (b) (2) through (4) of this 
section, potential participants shall keep a full and complete record of 
any communications (other than in a meeting held pursuant to this 
subpart) between or among themselves for the purpose of developing a 
voluntary agreement under this part. When two or more potential 
participants are involved in such a communication, they may agree among 
themselves who shall keep such record. Such record shall include the 
names of the parties to the communication and the organizations, if any, 
which they represent; the date of the communication; the means of 
communication; and a description of the communication in sufficient 
detail to convey adequately its substance.
    (2) Where any communication is written (including, but not limited 
to, telex, telegraphic, telecopied, microfilmed and computer printout 
material), and where such communication demonstrates on its face that 
the originator or some other source furnished a copy of the 
communication to the Office of International Affairs, Department of 
Energy with the notation ``Voluntary Agreement'' marked on the

[[Page 131]]

first page of the document, no participant need record such a 
communication or send a further copy to the Department of Energy. The 
Department of Energy may, upon written notice to potential participants, 
from time to time, or with reference to particular types of documents, 
require deposit with other offices or officials of the Department of 
Energy. Where such communication demonstrates that it was sent to the 
Office of International Affairs, Department of Energy with the notation 
``Voluntary Agreement'' marked on the first page of the document, or 
such other offices or officials in the Department of Energy has 
designated pursuant to this section it shall satisfy paragraph (c) of 
this section, for the purpose of deposit with the Department of Energy.
    (3) To the extent that any communication is procedural, 
administrative or ministerial (for example, if it involves the location 
of a record, the place of a meeting, travel arrangements, or similar 
matters,) only a brief notation of the date, time, persons involved and 
description of the communication need be recorded.
    (4) To the extent that any communication involves matters which 
recapitulate matters already contained in a full and complete record, 
the substance of such matters shall be identified, but need not be 
recorded in detail, provided that reference is made to the record and 
the portion thereof in which the substance is fully set out.
    (c) Except where the Department of Energy otherwise provides, all 
records and transcripts prepared pursuant to paragraphs (a) and (b) of 
this section, shall be deposited within fifteen (15) days after the 
close of the month of their preparation together with any agreement 
resulting therefrom, with the Department of Energy, and shall be 
available to the Department of Justice, the Federal Trade Commission, 
and the Department of State. Such records and transcripts shall be 
available for public inspection and copying at the Department of Energy. 
Any person depositing material with the Department of Energy pursuant to 
this section shall indicate with particularity what portions, if any, 
the person believes are subject to disclosure to the public pursuant to 
5 U.S.C. 552 and the reasons for such belief.

(Approved by the Office of Management and Budget under control number 
1105-0029)



Sec. 56.3  Maintenance of records with respect to meetings held to develop and carry out voluntary agreements or plans of action pursuant to the Agreement on an 
          International Energy Program.

    (a) The Administrator of the Department of Energy or his delegate 
shall keep a verbatim transcript of any meeting held pursuant to this 
subpart except where:
    (1) Due to considerations of time or other overriding circumstances, 
the keeping of a verbatim transcript is not practicable, or
    (2) Principal participants in the meeting are representatives of 
foreign governments.

If any such record other than a verbatim transcript, is kept by a 
designee who is not a full-time Federal employee, that record shall be 
submitted to the full-time Federal employee in attendance at the meeting 
who shall review the record, promptly make any changes he deems 
necessary to make the record full and complete, and shall notify the 
designee of such changes.
    (b)(1) Except as provided in paragraphs (b) (2) through (4) of this 
section, participants shall keep a full and complete record of any 
communication (other than in a meeting held pursuant to this subpart) 
between or among themselves or with any other member of a petroleum 
industry group created by the International Energy Agency (IEA), or 
subgroup thereof for the purpose of carrying out a voluntary agreement 
or developing or carrying out a plan of action under this subpart, 
except that where there are several communications within the same day 
involving the same participants, they may keep a cumulative record for 
the day. The parties to a communication may agree among themselves who 
shall keep such record. Such record shall include the names of the 
parties to the communication and the organizations, if any, which they 
represent; the date of communication; the means of communication, and a 
description of the

[[Page 132]]

communication in sufficient detail to convey adequately its substance.
    (2) Where any communication is written (including, but not limited 
to, telex, telegraphic, telecopied, microfilmed and computer printout 
material), and where such communication demonstrates on its face that 
the originator or some other source furnished a copy of the 
communication to the Office of International Affairs, Department of 
Energy with the notation ``Voluntary Agreement'' on the first page of 
the document, no participants need record such a communication or send a 
further copy to the Department of Energy. The Department of Energy may, 
upon written notice to participants, from time to time, or with 
reference to particular types of documents, require deposit with other 
offices or officials of the Department of Energy. Where such 
communication demonstrates that it was sent to the Office of 
International Affairs, Department of Energy with the notation 
``Voluntary Agreement'' on the first page of the document, or such other 
offices or officials as the Department of Energy has designated pursuant 
to this section, it shall satisfy paragraph (c) of this section, for the 
purpose of deposit with the Department of Energy.
    (3) To the extent that any communication is procedural, 
administrative or ministerial (for example, if it involves the location 
of a record, the place of a meeting, travel arrangements, or similar 
matters) only a brief notation of the date, time, persons involved and 
description of the communication need be recorded; except that during an 
IEA emergency allocation exercise or an allocation systems test such a 
non-substantive communication between members of the Industry Supply 
Advisory Group which occur within IEA headquarters need not be recorded.
    (4) To the extent that any communication involves matters which 
recapitulate matters already contained in a full and complete record, 
the substance of such matters shall be identified, but need not be 
recorded in detail, provided that reference is made to the record and 
the portion thereof in which the substance is fully set out.
    (c) Except where the Department of Energy otherwise provides, all 
records and transcripts prepared pursuant to paragraphs (a) and (b) of 
this section, shall be deposited within seven (7) days after the close 
of the week (ending Saturday) of their preparation during an 
international energy supply emergency or a test of the IEA emergency 
allocation system, and within fifteen (15) days after the close of the 
month of their preparation during periods of non-emergency, together 
with any agreement resulting therefrom, with the Department of Energy 
and shall be available to the Department of Justice, the Federal Trade 
Commission, and the Department of State. Such records and transcripts 
shall be available for public inspection and copying to the extent set 
forth in 5 U.S.C. 552. Any person depositing materials pursuant to this 
section shall indicate with particularity what portions, if any, the 
person believes are not subject to disclosure to the public pursuant to 
5 U.S.C. 552 and the reasons for such belief.
    (d) During international oil allocation under chapter III and IV of 
the IEP or during an IEA allocation systems test, the Department of 
Justice may issue such additional guidelines amplifying the requirements 
of these regulations as the Department of Justice determines to be 
necessary and appropriate.

(Approved by the Office of Management and Budget under control number 
1105-0029)



PART 57--INVESTIGATION OF DISCRIMINATION IN THE SUPPLY OF PETROLEUM TO THE ARMED FORCES--Table of Contents




Sec.
57.1  Responsibility for the conduct of litigation.
57.2  Responsibility for the conduct of investigations.
57.3  Scope and purpose of investigation; other sources of information.
57.4  Expiration date.

    Authority: Sec. 816(b)(2), Pub. L. 94-106; 89 Stat. 531.

    Source: Order No. 644-76, 41 FR 12302, Mar. 25, 1976, unless 
otherwise noted.

[[Page 133]]



Sec. 57.1  Responsibility for the conduct of litigation.

    (a) In accord with 28 CFR 0.45(h), civil litigation under sec. 816 
of the Department of Defense Appropriation Authorization Act, 1976, 10 
U.S.C.A. 2304 note (hereafter the ``Act''), shall be conducted under the 
supervision of the Assistant Attorney General in charge of the Civil 
Division.
    (b) In accord with 28 CFR 0.55(a), prosecution, under section 816(f) 
of the Act, of criminal violations shall be conducted under the 
supervision of the Assistant Attorney General in charge of the Criminal 
Division.



Sec. 57.2  Responsibility for the conduct of investigations.

    (a) When an instance of alleged ``discrimination'' in violation of 
section 816(b)(1) of the Act is referred to the Department of Justice by 
the Department of Defense, the matter shall be assigned initially to the 
Civil Division.
    (b)(1) If the information provided by the Department of Defense 
indicates that a non-criminal violation may have occurred and further 
investigation is warranted, such investigation shall be conducted under 
the supervision of the Assistant Attorney General in charge of the Civil 
Division.
    (2) If the information provided by the Department of Defense 
indicates that a criminal violation under section 816(f) of the Act may 
have occurred, the Civil Division shall refer the matter to the Criminal 
Division. If it is determined that further investigation of a possible 
criminal violation is warranted, such investigation shall be conducted 
under the supervision of the Assistant Attorney General in charge of the 
Criminal Division.
    (3) If a referral from the Department of Defense is such that both 
civil and criminal proceedings may be warranted, responsibility for any 
further investigation may be determined by the Deputy Attorney General.



Sec. 57.3  Scope and purpose of investigation; other sources of information.

    (a) The authority granted the Attorney General by section 816(d)(1) 
of the Act (e.g., authority to inspect books and records) shall not be 
utilized until an appropriate official has defined, in an appropriate 
internal memorandum, the scope and purpose of the particular 
investigation.
    (b) There shall be no use, with respect to particular information, 
of the authority granted by section 816(d)(1) of the Act until an 
appropriate official has determined that the information in question is 
not available to the Department of Justice from any other Federal agency 
or other responsible agency (e.g., a State agency).
    (c) For purposes of this section, ``appropriate official'' means the 
Assistant Attorney General in charge of the division conducting the 
investigation, or his delegate.



Sec. 57.4  Expiration date.

    This part shall remain in effect until expiration, pursuant to 
section 816(h) of the Act, of the Attorney General's authority under 
section 816 of the Act.



PART 58--REGULATIONS RELATING TO THE BANKRUPTCY REFORM ACTS OF 1978 AND 1994--Table of Contents




Sec.
58.1  Authorization to establish panels of private trustees.
58.2  Authorization to appoint standing trustees.
58.3  Qualification for membership on panels of private trustees.
58.4  Qualifications for appointment as standing trustee and fiduciary 
          standards.
58.5  Non-discrimination in appointment.
58.6  Procedures for suspension and removal of panel trustees and 
          standing trustees.

Appendix A to Part 58--Guidelines for Reviewing Applications for 
          Compensation and Reimbursement of Expenses Filed Under 11 
          U.S.C. 330

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 586.

    Source: Order No. 921-80, 45 FR 82631, Dec. 16, 1980, unless 
otherwise noted.



Sec. 58.1  Authorization to establish panels of private trustees.

    (a) Each U.S. Trustee is authorized to establish a panel of private 
trustees (the ``panel'') pursuant to 28 U.S.C. 586(a)(1).
    (b) Each U.S. Trustee is authorized, with the approval of the 
Director, Executive Office for United States Trustees (the ``Director'') 
to increase or decrease the total membership of the

[[Page 134]]

panel. In addition, each U.S. Trustee, with the approval of the 
Director, is authorized to institute a system of rotation of membership 
or the like to achieve diversity of experience, geographical 
distribution or other characteristics among the persons on the panel.

[Order No. 921-80, 45 FR 82631, Dec. 16, 1980, as amended at 62 FR 
30183, June 2, 1997]



Sec. 58.2  Authorization to appoint standing trustees.

    Each U.S. Trustee is authorized, subject to the approval of the 
Deputy Attorney General, or his delegate, to appoint and remove one or 
more standing trustees to serve in cases under chapters 12 and 13 of 
title 11, U.S. Code.

[Order No. 51 FR 44288, Dec. 9, 1986]



Sec. 58.3  Qualification for membership on panels of private trustees.

    (a) To be eligible for appointment to the panel and to retain 
eligibility therefor, an individual must possess the qualifications 
described in paragraph (b) of this section in addition to any other 
statutory qualifications. A corporation or partnership may qualify as an 
entity for appointment to the private panel. However, each person who, 
in the opinion of the U.S. Trustee or of the Director, performs duties 
as trustee on behalf of a corporation or partnership must individually 
meet the standards described in paragraph (b) of this section, except 
that each U.S. Trustee, with the approval of the Director, shall have 
the discretion to waive the applicability of paragraph (b)(6) of this 
section as to any individual in a non-supervisory position. No 
professional corporation, partnership, or similar entity organized for 
the practice of law or accounting shall be eligible to serve on the 
panel.
    (b) The qualifications for membership on the panel are as follows:
    (1) Possess integrity and good moral character.
    (2) Be physically and mentally able to satisfactorily perform a 
trustee's duties.
    (3) Be courteous and accessible to all parties with reasonable 
inquiries or comments about a case for which such individual is serving 
as private trustee.
    (4) Be free of prejudices against any individual, entity, or group 
of individuals or entities which would interfere with unbiased 
performance of a trustee's duties.
    (5) Not be related by affinity or consanguinity within the degree of 
first cousin to any employee of the Executive Office for United States 
Trustees of the Department of Justice, or to any employee of the office 
of the U.S. Trustee for the district in which he or she is applying.
    (6)(i) Be a member in good standing of the bar of the highest court 
of a state or of the District of Columbia; or
    (ii) Be a certified public accountant; or
    (iii) Hold a bachelor's degree from a full four-year course of study 
(or the equivalent) of an accredited college or university (accredited 
as described in part II, section III of Handbook X118 promulgated by the 
U.S. Office of Personnel Management) with a major in a business-related 
field of study or at least 20 semester-hours of business-related 
courses; or hold a master's or doctoral degree in a business-related 
field of study from a college or university of the type described above; 
or
    (iv) Be a senior law student or candidate for a master's degree in 
business administration recommended by the relevant law school or 
business school dean and working under the direct supervision of:
    (A) A member of a law school faculty; or
    (B) A member of the panel of private trustees; or
    (C) A member of a program established by the local bar association 
to provide clinical experience to students; or
    (v) Have equivalent experience as deemed acceptable by the U.S. 
Trustee.
    (7) Be willing to provide reports as required by the U.S. Trustee.
    (8) Have submitted an application under oath, in the form prescribed 
by the Director, to the U.S. Trustee for the District in which 
appointment is sought: Provided, That this provision may be waived by 
the U.S. Trustee on approval of the Director.

[[Page 135]]



Sec. 58.4  Qualifications for appointment as standing trustee and fiduciary standards.

    (a) As used in this section--
    (1) The term standing trustee means an individual appointed pursuant 
to 28 U.S.C. 586(b).
    (2) The term relative means an individual who is related to the 
standing trustee as father, mother, son, daughter, brother, sister, 
uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, 
mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-
law, stepfather, stepmother, stepson, stepdaughter, stepbrother, 
stepsister, half brother, half sister, or an individual whose close 
association to the standing trustee is the equivalent of a spousal 
relationship.
    (3) The term financial or ownership interest excludes ownership of 
stock in a publicly-traded company if the ownership interest in not 
controlling.
    (4) The word region means the geographical area defined in 28 U.S.C. 
581.
    (b) To be eligible for appointment as a standing trustee, an 
individual must have the qualifications for membership on a private 
panel of trustees set forth in Secs. 58.3 (b)(1)-(4), (6)-(8). An 
individual need not be an attorney to be eligible for appointment as a 
standing trustee. A corporation or partnership may be appointed as 
standing trustee only with the approval of the Director.
    (c) The United States Trustee shall not appoint as a standing 
trustee any individuals who, at the time of appointment, is:
    (1) A relative of another standing trustee in the region in which 
the standing trustee is to be appointed;
    (2) A relative of a standing trustee (in the region in which the 
standing trustee is to be appointed), who, within the preceding one-year 
period, died, resigned, or was removed as a standing trustee from a 
case;
    (3) A relative of a bankruptcy judge or a clerk of the bankruptcy 
court in the region in which the standing trustee is to be appointed;
    (4) An employee of the Department of Justice within the preceding 
one-year period; or
    (5) A relative of a United States Trustee or an Assistant United 
States Trustee, a relative of an employee in any of the offices of the 
United States Trustee in the region in which the standing trustee is to 
be appointed, or a relative of an employee in the Executive Office for 
United States Trustees.
    (d) A standing trustee must, at a minimum, adhere to the following 
fiduciary standards:
    (1) Employment of relatives. (i) A standing trustee shall not employ 
a relative of the standing trustee.
    (ii) A standing trustee shall also not employ a relative of the 
United States Trustee or of an Assistant United States Trustee in the 
region in which the trustee has been appointed or a relative of a 
bankruptcy court judge or of the clerk of the bankruptcy court in the 
judicial district in which the trustee has been appointed.
    (iii)(A) Paragraphs (d)(1) (i) and (ii) of this section shall not 
apply to a spouse of a standing trustee who was employed by the standing 
trustee as of August 1, 1995.
    (B) For all other relatives employed by a standing trustee as of 
August 1, 1995, paragraphs (d)(1) (i) and (ii) of this section shall be 
fully implemented by October 1, 1998, unless specifically provided 
below:
    (1) The United States Trustee shall have the discretion to grant a 
written waiver for a period of time not to exceed 2 years upon a written 
showing by the standing trustee of compelling circumstances that make 
the continued employment of a relative necessary for a standing 
trustee's performance of his or her duties and written evidence that the 
salary to be paid is at or below market rate.
    (2) Additional waivers, not to exceed a period of two years each, 
may be granted under paragraph (d)(1)(iii)(B)(1) of this section 
provided the standing trustee makes a similar written showing within 90 
days prior to the expiration of a present waiver and the United States 
Trustee determines that the circumstances for waiver are met.
    (3) No waivers will be granted for a relative of the United States 
Trustee or of an Assistant United States Trustee.
    (2) Related party transactions. (i) A standing trustee shall not 
direct debtors or creditors of a bankruptcy case administered by the 
standing trustee

[[Page 136]]

to an individual or entity that provides products or services, such as 
insurance or financial counseling, if a standing trustee is a relative 
of that individual or if the standing trustee or relative has a 
financial or ownership interest in the entity.
    (ii) A standing trustee shall not, on behalf of the trust, contract 
or allocate expenses with himself or herself, with a relative, or with 
any entity in which the standing trustee or a relative of the standing 
trustee has a financial or ownership interest if the costs are to be 
paid as an expense out of the fiduciary expense fund.
    (iii)(A) The United States Trustee may grant a waiver from 
compliance with paragraph (d)(2)(ii) of this section for up to three 
years following the appointment of a standing trustee if the newly-
appointed standing trustee can demonstrate in writing that a waiver is 
necessary and the cost is at or below market.
    (B) The United States Trustee may grant a provisional waiver from 
compliance with the allocation prohibition contained in paragraph 
(d)(2)(ii) of this section if one of the following conditions is 
present:
    (1) A standing trustee has insufficient receipts to earn maximum 
annual compensation as determined by the Director during any one of the 
last three fiscal years and provides the United States Trustee with an 
appraisal or other written evidence that the allocation is necessary and 
the allocated cost is at or below market rate for that good or service, 
or
    (2) A chapter 13 standing trustee also serves as a trustee in 
chapter 12 cases and provides the United States Trustee with an 
appraisal or other written evidence that the allocation is necessary and 
the allocated cost is at or below market rate for that good or service.
    (C) Except as otherwise provided in this paragraph, a standing 
trustee may seek a reasonable extension of time from the United States 
Trustee to comply with paragraph (d)(2)(ii) of this section. To obtain 
an extension, a standing trustee must demonstrate by an appraisal or 
other written evidence, satisfactory to the United States Trustee, that 
the expense is necessary and at or below market rate. In no event shall 
an extension be granted for the use and occupation of real estate beyond 
October 1, 2005. For personal property and personal service contracts, 
no extension shall be granted beyond October 1, 1998.
    (3) Employment of other standing trustees. A standing trustee shall 
not employ or contract with another standing trustee to provide personal 
services for compensation payable from the fiduciary expense fund. This 
section does not prohibit the standing trustee from reimbursing the 
actual, necessary expenses incurred by another standing trustee who 
provides necessary assistance to the standing trustee provided that the 
reimbursement has been pre-approved by the United States Trustee.
    (e) Paragraph (d) of this section is effective July 2, 1997. As to 
those standing trustees who are appointed as of July 2, 1997, paragraph 
(d) will be applicable on the first day of their next fiscal year (i.e., 
October 1, 1997, for chapter 13 trustees and January 1, 1998, for 
chapter 12 trustees).

[62 FR 30183, June 2, 1997]



Sec. 58.5  Non-discrimination in appointment.

    The U.S. Trustees shall not discriminate on the basis of race, 
color, religion, sex, national origin or age in appointments to the 
private panel of trustees or of standing trustees and in this regard 
shall assure equal opportunity for all appointees and applicants for 
appointment to the private panel of trustees or as standing trustee. 
Each U.S. Trustee shall be guided by the policies and requirements of 
Executive Order 11478 of August 8, 1969, relating to equal employment 
opportunity in the Federal Government, section 717 of the Civil Rights 
Act of 1964, as amended (42 U.S.C. 2000e-16), section 15 of the Age 
Discrimination in Employment Act of 1967, as amended (29 U.S.C. 633a), 
and the regulations of the Office of Personnel Management relating to 
equal employment opportunity (5 CFR part 713).

[Order No. 921-80, 45 FR 82631, Dec. 16, 1980, as amended by Order No. 
960-81, 46 FR 52360, Oct. 27, 1981]

[[Page 137]]



Sec. 58.6  Procedures for suspension and removal of panel trustees and standing trustees.

    (a) A United States Trustee shall notify a panel trustee or a 
standing trustee in writing of any decision to suspend or terminate the 
assignment of cases to the trustee including, where applicable, any 
decision not to renew the trustee's term appointment. The notice shall 
state the reason(s) for the decision and should refer to, or be 
accompanied by copies of, pertinent materials upon which the United 
States Trustee has relied and any prior communications in which the 
United States Trustee has advised the trustee of the potential action. 
The notice shall be sent to the office of the trustee by overnight 
courier, for delivery the next business day. The reasons may include, 
but are in no way limited to:
    (1) Failure to safeguard or to account for estate funds and assets;
    (2) Failure to perform duties in a timely and consistently 
satisfactory manner;
    (3) Failure to comply with the provisions of the Code, the 
Bankruptcy Rules, and local rules of court;
    (4) Failure to cooperate and to comply with orders, instructions and 
policies of the court, the bankruptcy clerk or the United States 
Trustee;
    (5) Substandard performance of general duties and case management in 
comparison to other members of the chapter 7 panel or other standing 
trustees;
    (6) Failure to display proper temperament in dealing with judges, 
clerks, attorneys, creditors, debtors, the United States Trustee and the 
general public;
    (7) Failure to adequately monitor the work of professionals or 
others employed by the trustee to assist in the administration of cases;
    (8) Failure to file timely, accurate reports, including interim 
reports, final reports, and final accounts;
    (9) Failure to meet the eligibility requirements of 11 U.S.C. 321 or 
the qualifications set forth in 28 CFR 58.3 and 58.4 and in 11 U.S.C. 
322;
    (10) Failure to attend in person or appropriately conduct the 11 
U.S.C. 341(a) meeting of creditors;
    (11) Action by or pending before a court or state licensing agency 
which calls the trustee's competence, financial responsibility or 
trustworthiness into question;
    (12) Routine inability to accept assigned cases due to conflicts of 
interest or to the trustee's unwillingness or incapacity to serve;
    (13) Change in the composition of the chapter 7 panel pursuant to a 
system established by the United States Trustee under 28 CFR 58.1;
    (14) A determination by the United States Trustee that the interests 
of efficient case administration or a decline in the number of cases 
warrant a reduction in the number of panel trustees or standing 
trustees.
    (b) The notice shall advise the trustee that the decision is final 
and unreviewable unless the trustee requests in writing a review by the 
Director, Executive Office for United States Trustees, no later than 20 
calendar days from the date of issuance of the United States Trustee's 
notice (``request for review''). In order to be timely, a request for 
review must be received by the Office of the Director no later than 20 
calendar days from the date of the United States Trustee's notice to the 
trustee.
    (c) A decision by a United States Trustee to suspend or terminate 
the assignment of cases to a trustee shall take effect upon the 
expiration of a trustee's time to seek review from the Director or, if 
the trustee timely seeks such review, upon the issuance of a final 
written decision by the Director.
    (d) Notwithstanding paragraph (c) of this section, a United States 
Trustee's decision to suspend or terminate the assignment of cases to a 
trustee may include, or may later by supplemented by an interim 
directive, by which the United States trustee may immediately 
discontinue assigning cases to a trustee during the review period. A 
United States Trustee may issue such an interim directive if the United 
States Trustee specifically finds that:
    (1) A continued assignment of cases to the trustee places the safety 
of estate assets at risk ;
    (2) The trustee appears to be ineligible to serve under applicable 
law, rule, or regulation;

[[Page 138]]

    (3) The trustee has engaged in conduct that appears to be dishonest, 
deceitful, fraudulent, or criminal in nature; or
    (4) The trustee appears to have engaged in other gross misconduct 
that is unbefitting his or her position as trustee or violates the 
trustee's duties.
    (e) If the United States Trustee issues an interim directive, the 
trustee may seek a stay of the interim directive from the Director if 
the trustee has timely filed a request for review under paragraph (b) of 
this section.
    (f) The trustee's written request for review shall fully describe 
why the trustee disagrees with the United States Trustee's decision, and 
shall be accompanied by all documents and materials that the trustee 
wants the Director to consider in reviewing the decision. The trustee 
shall send a copy of the request for review, and the accompanying 
documents and materials, to the United States Trustee by overnight 
courier, for delivery the next business day. The trustee may request 
that specific documents in the possession of the United States Trustee 
be transmitted to the Director for inclusion in the record.
    (g) The United States Trustee shall have 15 calendar days from the 
date of the trustee's request for review to submit to the Director a 
written response regarding the matters raised in the trustee's request 
for review. The United States Trustee shall provide a copy of this 
response to the trustee. Both copes shall be sent by overnight courier, 
for delivery the next business day.
    (h) The Director may seek additional information from any party in 
the manner and to the extent the Director deems appropriate.
    (i) Unless the trustee and the United States Trustee agree to a 
longer period of time, the Director shall issue a written decision no 
later than 30 calendar days from the receipt of the United States 
Trustee's response to the trustee's request for review. That decision 
shall determine whether the United States Trustee's decision is 
supported by the record and the action is an appropriate exercise of the 
United States Trustee's discretion, and shall adopt, modify or reject 
the United States Trustee's decision to suspend or terminate the 
assignment of future cases to the trustee. The Director's decision shall 
constitute final agency action.
    (j) In reaching a determination, the Director may specify a person 
to act as a reviewing official. The reviewing official shall not be a 
person who was involved in the United States Trustee's decision or a 
Program employee who is located within the region of the United States 
Trustee who made the decision. The reviewing official's duties shall be 
specified by the Director on a case by case basis, and may include 
reviewing the record, obtaining additional information from the 
participants, providing the Director with written recommendations, or 
such other duties as the Director shall prescribe in a particular case.
    (k) This rule does not authorize a trustee to seek review of any 
decision to increase the size of the chapter 7 panel or to appoint 
additional standing trustees in the district or region.
    (l) A trustee who files a request for review shall bear his or her 
own costs and expenses, including counsel fees.

[62 FR 51750, Oct. 2, 1997]

    Appendix A to Part 58--Guidelines for Reviewing Applications for 
  Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. 330

    (a) General Information. (1) The Bankruptcy Reform Act of 1994 
amended the responsibilities of the United States Trustees under 28 
U.S.C. 586(a)(3)(A) to provide that, whenever they deem appropriate, 
United States Trustees will review applications for compensation and 
reimbursement of expenses under section 330 of the Bankruptcy Code, 11 
U.S.C. 101, et seq. (``Code''), in accordance with procedural guidelines 
(``Guidelines'') adopted by the Executive Office for United States 
Trustees (``Executive Office''). The following Guidelines have been 
adopted by the Executive Office and are to be uniformly applied by the 
United States Trustees except when circumstances warrant different 
treatment.
    (2) The United States Trustees shall use these Guidelines in all 
cases commenced on or after October 22, 1994.
    (3) The Guidelines are not intended to supersede local rules of 
court, but should be read as complementing the procedures set forth in 
local rules.
    (4) Nothing in the Guidelines should be construed:

[[Page 139]]

    (i) To limit the United States Trustee's discretion to request 
additional information necessary for the review of a particular 
application or type of application or to refer any information provided 
to the United States Trustee to any investigatory or prosecutorial 
authority of the United States or a state;
    (ii) To limit the United States Trustee's discretion to determine 
whether to file comments or objections to applications; or
    (iii) To create any private right of action on the part of any 
person enforceable in litigation with the United States Trustee or the 
United States.
    (5) Recognizing that the final authority to award compensation and 
reimbursement under section 330 of the Code is vested in the Court, the 
Guidelines focus on the disclosure of information relevant to a proper 
award under the law. In evaluating fees for professional services, it is 
relevant to consider various factors including the following: the time 
spent; the rates charged; whether the services were necessary to the 
administration of, or beneficial towards the completion of, the case at 
the time they were rendered; whether services were performed within a 
reasonable time commensurate with the complexity, importance, and nature 
of the problem, issue, or task addressed; and whether compensation is 
reasonable based on the customary compensation charged by comparably 
skilled practitioners in non-bankruptcy cases. The Guidelines thus 
reflect standards and procedures articulated in section 330 of the Code 
and Rule 2016 of the Federal Rules of Bankruptcy Procedure for awarding 
compensation to trustees and to professionals employed under section 327 
or 1103. Applications that contain the information requested in these 
Guidelines will facilitate review by the Court, the parties, and the 
United States Trustee.
    (6) Fee applications submitted by trustees are subject to the same 
standard of review as are applications of other professionals and will 
be evaluated according to the principles articulated in these 
Guidelines. Each United States Trustee should establish whether and to 
what extent trustees can deviate from the format specified in these 
Guidelines without substantially affecting the ability of the United 
States Trustee to review and comment on their fee applications in a 
manner consistent with the requirements of the law.
    (b) Contents of Applications for Compensation and Reimbursement of 
Expenses. All applications should include sufficient detail to 
demonstrate compliance with the standards set forth in 11 U.S.C. 
Sec. 330. The fee application should also contain sufficient information 
about the case and the applicant so that the Court, the creditors, and 
the United States Trustee can review it without searching for relevant 
information in other documents. The following will facilitate review of 
the application.
    (1) Information about the Applicant and the Application. The 
following information should be provided in every fee application:
    (i) Date the bankruptcy petition was filed, date of the order 
approving employment, identity of the party represented, date services 
commenced, and whether the applicant is seeking compensation under a 
provision of the Bankruptcy Code other than section 330.
    (ii) Terms and conditions of employment and compensation, source of 
compensation, existence and terms controlling use of a retainer, and any 
budgetary or other limitations on fees.
    (iii) Names and hourly rates of all applicant's professionals and 
paraprofessionals who billed time, explanation of any changes in hourly 
rates from those previously charged, and statement of whether the 
compensation is based on the customary compensation charged by 
comparably skilled practitioners in cases other than cases under title 
11.
    (iv) Whether the application is interim or final, and the dates of 
previous orders on interim compensation or reimbursement of expenses 
along with the amounts requested and the amounts allowed or disallowed, 
amounts of all previous payments, and amount of any allowed fees and 
expenses remaining unpaid.
    (v) Whether the person on whose behalf the applicant is employed has 
been given the opportunity to review the application and whether that 
person has approved the requested amount.
    (vi) When an application is filed less than 120 days after the order 
for relief or after a prior application to the Court, the date and terms 
of the order allowing leave to file at shortened intervals.
    (vii) Time period of the services or expenses covered by the 
application.
    (2) Case Status. The following information should be provided to the 
extent that it is known to or can be reasonably ascertained by the 
applicant:
    (i) In a chapter 7 case, a summary of the administration of the case 
including all moneys received and disbursed in the case, when the case 
is expected to close, and, if applicant is seeking an interim award, 
whether it is feasible to make an interim distribution to creditors 
without prejudicing the rights of any creditor holding a claim of equal 
or higher priority.
    (ii) In a chapter 11 case, whether a plan and disclosure statement 
have been filed and, if not yet filed, when the plan and disclosure 
statement are expected to be filed; whether all quarterly fees have been 
paid to the United States Trustee; and whether all monthly operating 
reports have been filed.
    (iii) In every case, the amount of cash on hand or on deposit, the 
amount and nature of accrued unpaid administrative expenses, and

[[Page 140]]

the amount of unencumbered funds in the estate.
    (iv) Any material changes in the status of the case that occur after 
the filing of the fee application should be raised, orally or in 
writing, at the hearing on the application or, if a hearing is not 
required, prior to the expiration of the time period for objection.
    (3) Summary Sheet. All applications should contain a summary or 
cover sheet that provides a synopsis of the following information:
    (i) Total compensation and expenses requested and any amount(s) 
previously requested;
    (ii) Total compensation and expenses previously awarded by the 
court;
    (iii) Name and applicable billing rate for each person who billed 
time during the period, and date of bar admission for each attorney;
    (iv) Total hours billed and total amount of billing for each person 
who billed time during billing period; and
    (v) Computation of blended hourly rate for persons who billed time 
during period, excluding paralegal or other paraprofessional time.
    (4) Project Billing Format. (i) To facilitate effective review of 
the application, all time and service entries should be arranged by 
project categories. The project categories set forth in exhibit A should 
be used to the extent applicable. A separate project category should be 
used for administrative matters and, if payment is requested, for fee 
application preparation.
    (ii) The United States Trustee has discretion to determine that the 
project billing format is not necessary in a particular case or in a 
particular class of cases. Applicants should be encouraged to consult 
with the United States Trustee if there is a question as to the need for 
project billing in any particular case.
    (iii) Each project category should contain a narrative summary of 
the following information:
    (A) a description of the project, its necessity and benefit to the 
estate, and the status of the project including all pending litigation 
for which compensation and reimbursement are requested;
    (B) identification of each person providing services on the project; 
and
    (C) a statement of the number of hours spent and the amount of 
compensation requested for each professional and paraprofessional on the 
project.
    (iv) Time and service entries are to be reported in chronological 
order under the appropriate project category.
    (v) Time entries should be kept contemporaneously with the services 
rendered in time periods of tenths of an hour. Services should be noted 
in detail and not combined or ``lumped'' together, with each service 
showing a separate time entry; however, tasks performed in a project 
which total a de minimis amount of time can be combined or lumped 
together if they do not exceed .5 hours on a daily aggregate. Time 
entries for telephone calls, letters, and other communications should 
give sufficient detail to identify the parties to and the nature of the 
communication. Time entries for court hearings and conferences should 
identify the subject of the hearing or conference. If more than one 
professional from the applicant firm attends a hearing or conference, 
the applicant should explain the need for multiple attendees.
    (5) Reimbursement for Actual, Necessary Expenses. Any expense for 
which reimbursement is sought must be actual and necessary and supported 
by documentation as appropriate. Factors relevant to a determination 
that the expense is proper include the following:
    (i) Whether the expense is reasonable and economical. For example, 
first class and other luxurious travel mode or accommodations will 
normally be objectionable.
    (ii) Whether the requested expenses are customarily charged to non-
bankruptcy clients of the applicant.
    (iii) Whether applicant has provided a detailed itemization of all 
expenses including the date incurred, description of expense (e.g., type 
of travel, type of fare, rate, destination), method of computation, and, 
where relevant, name of the person incurring the expense and purpose of 
the expense. Itemized expenses should be identified by their nature 
(e.g., long distance telephone, copy costs, messengers, computer 
research, airline travel, etc,) and by the month incurred. Unusual items 
require more detailed explanations and should be allocated, where 
practicable, to specific projects.
    (iv) Whether applicant has prorated expenses where appropriate 
between the estate and other cases (e.g., travel expenses applicable to 
more than one case) and has adequately explained the basis for any such 
proration.
    (v) Whether expenses incurred by the applicant to third parties are 
limited to the actual amounts billed to, or paid by, the applicant on 
behalf of the estate.
    (vi) Whether applicant can demonstrate that the amount requested for 
expenses incurred in-house reflect the actual cost of such expenses to 
the applicant. The United States Trustee may establish an objection 
ceiling for any in-house expenses that are routinely incurred and for 
which the actual cost cannot easily be determined by most professionals 
(e.g., photocopies, facsimile charges, and mileage).

[[Page 141]]

    (vii) Whether the expenses appear to be in the nature 
nonreimbursable overhead. Overhead consists of all continuous 
administrative or general costs incident to the operation of the 
applicant's office and not particularly attributable to an individual 
client or case. Overhead includes, but is not limited to, word 
processing, proofreading, secretarial and other clerical services, rent, 
utilities, office equipment and furnishings, insurance, taxes, local 
telephones and monthly car phone charges, lighting, heating and cooling, 
and library and publication charges.
    (viii) Whether applicant has adhered to allowable rates for expenses 
as fixed by local rule or order of the Court.

                      Exhibit A--Project Categories

    Here is a list of suggested project categories for use in most 
bankruptcy cases. Only one category should be used for a given activity. 
Professionals should make their best effort to be consistent in their 
use of categories, whether within a particular firm or by different 
firms working on the same case. It would be appropriate for all 
professionals to discuss the categories in advance and agree generally 
on how activities will be categorized. This list is not exclusive. The 
application may contain additional categories as the case requires. They 
are generally more applicable to attorneys in chapter 7 and chapter 11, 
but may be used by all professionals as appropriate.
    Asset Analysis and Recovery: Identification and review of potential 
assets including causes of action and non-litigation recoveries.
    Asset Disposition: Sales, leases (Sec. 365 matters), abandonment and 
related transaction work.
    Business Operations: Issues related to debtor-in-possession 
operating in chapter 11 such as employee, vendor, tenant issues and 
other similar problems.
    Case Administration: Coordination and compliance activities, 
including preparation of statement of financial affairs; schedules; list 
of contracts; United States Trustee interim statements and operating 
reports; contacts with the United States Trustee; general creditor 
inquiries.
    Claims Administration and Objections: Specific claim inquiries; bar 
date motions; analyses, objections and allowances of claims.
    Employee Benefits/Pensions: Review issues such as severance, 
retention, 401K coverage and continuance of pension plan.
    Fee/Employment Applicants: Preparation of employment and fee 
applications for self or others; motions to establish interim 
procedures.
    Fee/Employment Objections: Review of and objections to the 
employment and fee applications of others.
    Financing: Matters under Secs. 361, 363 and 364 including cash 
collateral and secured claims; loan document analysis.
    Litigation: There should be a separate category established for each 
matter (e.g., XYZ Litigation).
    Meetings of Creditors: Preparing for and attending the conference of 
creditors, the Sec. 341(a) meeting and other creditors' committee 
meetings.
    Plan and Disclosure Statement: Formulation, presentation and 
confirmation; compliance with the plan confirmation order, related 
orders and rules; disbursement and case closing activities, except those 
related to the allowance and objections to allowance of claims.
    Relief From Stay Proceedings: Matters relating to termination or 
continuation of automatic stay under Sec. 362.
    The following categories are generally more applicable to 
accountants and financial advisors, but may be used by all professionals 
as appropriate.
    Accounting/Auditing: Activities related to maintaining and auditing 
books of account, preparation of financial statements and account 
analysis.
    Business Analysis: Preparation and review of company business plan; 
development and review of strategies; preparation and review of cash 
flow forecasts and feasibility studies.
    Corporate Finance: Review financial aspects of potential mergers, 
acquisitions and disposition of company or subsidiaries.
    Data Analysis: Management information systems review, installation 
and analysis, construction, maintenance and reporting of significant 
case financial data, lease rejection, claims, etc.
    Litigation Consulting: Providing consulting and expert witness 
services relating to various bankruptcy matters such as insolvency, 
feasibility, avoiding actions, forensic accounting, etc.
    Reconstruction Accounting: Reconstructing books and records from 
past transactions and bringing accounting current.
    Tax Issues: Analysis of tax issues and preparation of state and 
federal tax returns.
    Valuation: Appraise or review appraisals of assets.

[61 FR 24890, May 17, 1996]



PART 59--GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS HELD BY THIRD PARTIES--Table of Contents




Sec.
59.1  Introduction.
59.2  Definitions.
59.3  Applicability.
59.4  Procedures.
59.5  Functions and authorities of the Deputy Assistant Attorneys 
          General.

[[Page 142]]

59.6  Sanctions.

    Authority: Sec. 201, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 
2000aa-11).

    Source: Order No. 942-81, 46 FR 22364, Apr. 17, 1981, unless 
otherwise noted.



Sec. 59.1  Introduction.

    (a) A search for documentary materials necessarily involves 
intrusions into personal privacy. First, the privacy of a person's home 
or office may be breached. Second, the execution of such a search may 
require examination of private papers within the scope of the search 
warrant, but not themselves subject to seizure. In addition, where such 
a search involves intrusions into professional, confidential 
relationships, the privacy interests of other persons are also 
implicated.
    (b) It is the responsibility of federal officers and employees to 
recognize the importance of these personal privacy interests, and to 
protect against unnecessary intrusions. Generally, when documentary 
materials are held by a disinterested third party, a subpoena, 
administrative summons, or governmental request will be an effective 
alternative to the use of a search warrant and will be considerably less 
intrusive. The purpose of the guidelines set forth in this part is to 
assure that federal officers and employees do not use search and seizure 
to obtain documentary materials in the possession of disinterested third 
parties unless reliance on alternative means would substantially 
jeopardize their availability (e.g., by creating a risk of destruction, 
etc.) or usefulness (e.g., by detrimentally delaying the investigation, 
destroying a chain of custody, etc.). Therefore, the guidelines in this 
part establish certain criteria and procedural requirements which must 
be met before a search warrant may be used to obtain documentary 
materials held by disinterested third parties. The guidelines in this 
part are not intended to inhibit the use of less intrusive means of 
obtaining documentary materials such as the use of a subpoena, summons, 
or formal or informal request.



Sec. 59.2  Definitions.

    As used in this part--
    (a) The term attorney for the government shall have the same meaning 
as is given that term in Rule 54(c) of the Federal Rules of Criminal 
Procedure;
    (b) The term disinterested third party means a person or 
organization not reasonably believed to be--
    (1) A suspect in the criminal offense to which the materials sought 
under these guidelines relate; or
    (2) Related by blood or marriage to such a suspect;
    (c) The term documentary materials means any materials upon which 
information is recorded, and includes, but is not limited to, written or 
printed materials, photographs, films or negatives, audio or video 
tapes, or materials upon which information is electronically or 
magnetically recorded, but does not include materials which constitute 
contraband, the fruits or instrumentalities of a crime, or things 
otherwise criminally possessed;
    (d) The term law enforcement officer shall have the same meaning as 
the term ``federal law enforcement officer'' as defined in Rule 41(h) of 
the Federal Rules of Criminal Procedure; and
    (e) The term supervisory official of the Department of Justice means 
the supervising attorney for the section, office, or branch within the 
Department of Justice which is responsible for the investigation or 
prosecution of the offense at issue, or any of his superiors.



Sec. 59.3  Applicability.

    (a) The guidelines set forth in this part apply, pursuant to section 
201 of the Privacy Protection Act of 1980 (Sec. 201, Pub. L. 96-440, 94 
Stat. 1879, (42 U.S.C. 2000aa-11)), to the procedures used by any 
federal officer or employee, in connection with the investigation or 
prosecution of a criminal offense, to obtain documentary materials in 
the private possession of a disinterested third party.
    (b) The guidelines set forth in this part do not apply to:
    (1) Audits, examinations, or regulatory, compliance, or 
administrative inspections or searches pursuant to federal statute or 
the terms of a federal contract;
    (2) The conduct of foreign intelligence or counterintelligence 
activities by a government authority pursuant to otherwise applicable 
law;

[[Page 143]]

    (3) The conduct, pursuant to otherwise applicable law, of searches 
and seizures at the borders of, or at international points of entry 
into, the United States in order to enforce the customs laws of the 
United States;
    (4) Governmental access to documentary materials for which valid 
consent has been obtained; or
    (5) Methods of obtaining documentary materials whose location is 
known but which have been abandoned or which cannot be obtained through 
subpoena or request because they are in the possession of a person whose 
identity is unknown and cannot with reasonable effort be ascertained.
    (c) The use of search and seizure to obtain documentary materials 
which are believed to be possessed for the purpose of disseminating to 
the public a book, newspaper, broadcast, or other form of public 
communication is subject to title I of the Privacy Protection Act of 
1980 (Sec. 101, et seq., Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 
2000aa, et seq.)), which strictly prohibits the use of search and 
seizure to obtain such materials except under specified circumstances.
    (d) These guidelines are not intended to supersede any other 
statutory, regulatory, or policy limitations on access to, or the use or 
disclosure of particular types of documentary materials, including, but 
not limited to, the provisions of the Right to Financial Privacy Act of 
1978 (12 U.S.C. 3401, et seq.), the Drug Abuse Office and Treatment Act 
of 1972, as amended (21 U.S.C. 1101, et seq.), and the Comprehensive 
Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation 
Act of 1970, as amended (42 U.S.C. 4541, et seq.).



Sec. 59.4  Procedures. \1\
---------------------------------------------------------------------------

    \1\ Notwithstanding the provisions of this section, any application 
for a warrant to search for evidence of a criminal tax offense under the 
jurisdiction of the Tax Division must be specifically approved in 
advance by the Tax Division pursuant to section 6-2.330 of the U.S. 
Attorneys' Manual.
---------------------------------------------------------------------------

    (a) Provisions governing the use of search warrants generally. (1) A 
search warrant should not be used to obtain documentary materials 
believed to be in the private possession of a disinterested third party 
unless it appears that the use of a subpoena, summons, request, or other 
less intrusive alternative means of obtaining the materials would 
substantially jeopardize the availability or usefulness of the materials 
sought, and the application for the warrant has been authorized as 
provided in paragraph (a)(2) of this section.
    (2) No federal officer or employee shall apply for a warrant to 
search for and seize documentary materials believed to be in the private 
possession of a disinterested third party unless the application for the 
warrant has been authorized by an attorney for the government. Provided, 
however, that in an emergency situation in which the immediacy of the 
need to seize the materials does not permit an opportunity to secure the 
authorization of an attorney for the government, the application may be 
authorized by a supervisory law enforcement officer in the applicant's 
department or agency, if the appropriate U.S. Attorney (or where the 
case is not being handled by a U.S. Attorney's Office, the appropriate 
supervisory official of the Department of Justice) is notified of the 
authorization and the basis for justifying such authorization under this 
part within 24 hours of the authorization.
    (b) Provisions governing the use of search warrants which may 
intrude upon professional, confidential relationships. (1) A search 
warrant should not be used to obtain documentary materials believed to 
be in the private possession of a disinterested third party physician, 
\2\ lawyer, or clergyman, under circumstances in which the materials 
sought, or other materials likely to be reviewed during the execution of 
the warrant, contain confidential information on patients, clients, or 
parishioners which was furnished or developed for the purposes of 
professional counseling or treatment, unless--
---------------------------------------------------------------------------

    \2\ Documentary materials created or compiled by a physician, but 
retained by the physician as a matter of practice at a hospital or 
clinic shall be deemed to be in the private possession of the physician, 
unless the clinic or hospital is a suspect in the offense.
---------------------------------------------------------------------------

    (i) It appears that the use of a subpoena, summons, request or other 
less

[[Page 144]]

intrusive alternative means of obtaining the materials would 
substantially jeopardize the availability or usefulness of the materials 
sought;
    (ii) Access to the documentary materials appears to be of 
substantial importance to the investigation or prosecution for which 
they are sought; and
    (iii) The application for the warrant has been approved as provided 
in paragraph (b)(2) of this section.
    (2) No federal officer or employee shall apply for a warrant to 
search for and seize documentary materials believed to be in the private 
possession of a disinterested third party physician, lawyer, or 
clergyman under the circumstances described in paragraph (b)(1) of this 
section, unless, upon the recommendation of the U.S. Attorney (or where 
a case is not being handled by a U.S. Attorney's Office, upon the 
recommendation of the appropriate supervisory official of the Department 
of Justice), an appropriate Deputy Assistant Attorney General has 
authorized the application for the warrant. Provided, however, that in 
an emergency situation in which the immediacy of the need to seize the 
materials does not permit an opportunity to secure the authorization of 
a Deputy Assistant Attorney General, the application may be authorized 
by the U.S. Attorney (or where the case is not being handled by a U.S. 
Attorney's Office, by the appropriate supervisory official of the 
Department of Justice) if an appropriate Deputy Assistant Attorney 
General is notified of the authorization and the basis for justifying 
such authorization under this part within 72 hours of the authorization.
    (3) Whenever possible, a request for authorization by an appropriate 
Deputy Assistant Attorney General of a search warrant application 
pursuant to paragraph (b)(2) of this section shall be made in writing 
and shall include:
    (i) The application for the warrant; and
    (ii) A brief description of the facts and circumstances advanced as 
the basis for recommending authorization of the application under this 
part.

If a request for authorization of the application is made orally or if, 
in an emergency situation, the application is authorized by the U.S. 
Attorney or a supervisory official of the Department of Justice as 
provided in paragraph (b)(2) of this section, a written record of the 
request including the materials specified in paragraphs (b)(3) (i) and 
(ii) of this section shall be transmitted to an appropriate Deputy 
Assistant Attorney General within 7 days. The Deputy Assistant Attorneys 
General shall keep a record of the disposition of all requests for 
authorizations of search warrant applications made under paragraph (b) 
of this section.
    (4) A search warrant authorized under paragraph (b)(2) of this 
section shall be executed in such a manner as to minimize, to the 
greatest extent practicable, scrutiny of confidential materials.
    (5) Although it is impossible to define the full range of additional 
doctor-like therapeutic relationships which involve the furnishing or 
development of private information, the U.S. Attorney (or where a case 
is not being handled by a U.S. Attorney's Office, the appropriate 
supervisory official of the Department of Justice) should determine 
whether a search for documentary materials held by other disinterested 
third party professionals involved in such relationships (e.g. 
psychologists or psychiatric social workers or nurses) would implicate 
the special privacy concerns which are addressed in paragraph (b) of 
this section. If the U.S. Attorney (or other supervisory official of the 
Department of Justice) determines that such a search would require 
review of extremely confidential information furnished or developed for 
the purposes of professional counseling or treatment, the provisions of 
this subsection should be applied. Otherwise, at a minimum, the 
requirements of paragraph (a) of this section must be met.
    (c) Considerations bearing on choice of methods. In determining 
whether, as an alternative to the use of a search warrant, the use of a 
subpoena or other less intrusive means of obtaining documentary 
materials would substantially jeopardize the availability or usefulness 
of the materials sought, the following factors, among others, should be 
considered:
    (1) Whether it appears that the use of a subpoena or other 
alternative which

[[Page 145]]

gives advance notice of the government's interest in obtaining the 
materials would be likely to result in the destruction, alteration, 
concealment, or transfer of the materials sought; considerations, among 
others, bearing on this issue may include:
    (i) Whether a suspect has access to the materials sought;
    (ii) Whether there is a close relationship of friendship, loyalty, 
or sympathy between the possessor of the materials and a suspect;
    (iii) Whether the possessor of the materials is under the domination 
or control of a suspect;
    (iv) Whether the possessor of the materials has an interest in 
preventing the disclosure of the materials to the government;
    (v) Whether the possessor's willingness to comply with a subpoena or 
request by the government would be likely to subject him to intimidation 
or threats of reprisal;
    (vi) Whether the possessor of the materials has previously acted to 
obstruct a criminal investigation or judicial proceeding or refused to 
comply with or acted in defiance of court orders; or
    (vii) Whether the possessor has expressed an intent to destroy, 
conceal, alter, or transfer the materials;
    (2) The immediacy of the government's need to obtain the materials; 
considerations, among others, bearing on this issue may include:
    (i) Whether the immediate seizure of the materials is necessary to 
prevent injury to persons or property;
    (ii) Whether the prompt seizure of the materials is necessary to 
preserve their evidentiary value;
    (iii) Whether delay in obtaining the materials would significantly 
jeopardize an ongoing investigation or prosecution; or
    (iv) Whether a legally enforceable form of process, other than a 
search warrant, is reasonably available as a means of obtaining the 
materials.

The fact that the disinterested third party possessing the materials may 
have grounds to challenge a subpoena or other legal process is not in 
itself a legitimate basis for the use of a search warrant.



Sec. 59.5  Functions and authorities of the Deputy Assistant Attorneys General.

    The functions and authorities of the Deputy Assistant Attorneys 
General set out in this part may at any time be exercised by an 
Assistant Attorney General, the Associate Attorney General, the Deputy 
Attorney General, or the Attorney General.



Sec. 59.6  Sanctions.

    (a) Any federal officer or employee violating the guidelines set 
forth in this part shall be subject to appropriate disciplinary action 
by the agency or department by which he is employed.
    (b) Pursuant to section 202 of the Privacy Protection Act of 1980 
(sec. 202, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 2000aa-12)), an 
issue relating to the compliance, or the failure to comply, with the 
guidelines set forth in this part may not be litigated, and a court may 
not entertain such an issue as the basis for the suppression or 
exclusion of evidence.



PART 60--AUTHORIZATION OF FEDERAL LAW ENFORCEMENT OFFICERS TO REQUEST THE ISSUANCE OF A SEARCH WARRANT--Table of Contents




Sec.
60.1  Purpose.
60.2  Authorized categories.
60.3  Agencies with authorized personnel.

    Authority: Rule 41(h), Fed. R. Crim. P (18 U.S.C. appendix).



Sec. 60.1  Purpose.

    This regulation authorizes certain categories of federal law 
enforcement officers to request the issuance of search warrants under 
Rule 41, Fed. R. Crim. P., and lists the agencies whose officers are so 
authorized. Rule 41(a) provides in part that a search warrant may be 
issued ``upon the request of a federal law enforcement officer,'' and 
defines that term in Rule 41(h) as ``any government agent, * * * who is 
engaged in the enforcement of the criminal laws and is within the 
category of officers authorized by the Attorney General to request the 
issuance of a search

[[Page 146]]

warrant.'' The publication of the categories and the listing of the 
agencies is intended to inform the courts of the personnel who are so 
authorized. It should be noted that only in the very rare and emergent 
case is the law enforcement officer permitted to seek a search warrant 
without the concurrence of the appropriate U.S. Attorney's office. 
Further, in all instances, military agents of the Department of Defense 
must obtain the concurrence of the appropriate U.S. Attorney's Office 
before seeking a search warrant.

[Order No. 826-79, 44 FR 21785, Apr. 12, 1979, as amended by Order No. 
1026-83, 48 FR 37377, Aug. 18, 1983]



Sec. 60.2  Authorized categories.

    The following categories of federal law enforcement officers are 
authorized to request the issuance of a search warrant:
    (a) Any person authorized to execute search warrants by a statute of 
the United States.
    (b) Any person who has been authorized to execute search warrants by 
the head of a department, bureau, or agency (or his delegate, if 
applicable) pursuant to any statute of the United States.
    (c) Any peace officer or customs officer of the Virgin Islands, 
Guam, or the Canal Zone.
    (d) Any officer of the Metropolitan Police Department, District of 
Columbia.
    (e) Any person authorized to execute search warrants by the 
President of the United States.
    (f) Any civilian agent of the Department of Defense not subject to 
military direction who is authorized by statute or other appropriate 
authority to enforce the criminal laws of the United States.
    (g) Any civilian agent of the Department of Defense who is 
authorized to enforce the Uniform Code of Military Justice.
    (h) Any military agent of the Department of Defense who is 
authorized to enforce the Uniform Code of Military Justice.
    (i) Any special agent of the Office of Inspector General, Department 
of Transportation.
    (j) Any special agent of the Investigations Division of the Office 
of Inspector General, Small Business Administration.
    (k) Any special agent of the Office of Investigations and the Office 
of Labor Racketeering of the Office of Inspector General, Department of 
Labor.
    (l) Any special agent of the Office of Investigations of the Office 
of Inspector General, General Services Administration.
    (m) Any special agent of the Office of Inspector General, Department 
of Housing and Urban Development.
    (n) Any special agent of the Office of Inspector General, Department 
of Interior.
    (o) Any special agent of the Office of Inspector General, Veterans 
Administration.
    (p) Any special agent of the Office of Inspector General, Social 
Security Administration.
    (q) Any special agent of the Office of Inspector General, Department 
of Health and Human Services.

[Order No. 826-79, 44 FR 21785, Apr. 12, 1979, as amended by Order No. 
1026-83, 48 FR 37377, Aug. 18, 1983; Order No. 1143-86, 51 FR 26878, 
July 28, 1986; Order No. 1188-87, 52 FR 19138, May 21, 1987; Order No. 
1327-89, 54 FR 9431, Mar. 7, 1989; Order No. 2000-95, 60 FR 62734, Dec. 
7, 1995]



Sec. 60.3  Agencies with authorized personnel.

    The following agencies have law enforcement officers within the 
categories listed in Sec. 60.2 of this part:
    (a) National Law Enforcement Agencies:
    (1) Department of Agriculture:
    National Forest Service
    Office of the Inspector General
    (2) Department of Defense:
    Defense Investigative Service Criminal Investigation Command, U.S. 
Army
    Naval Investigative Service, U.S. Navy
    Office of Assistant Inspector General for Investigations, Office of 
Defense Inspector General
    Office of Special Investigation, U.S. Air Force
    (3) Department of Health and Human Services:
    Center for Disease Control
    Food and Drug Administration

[[Page 147]]

    Office of Investigations, Office of the Inspector General
    (4) Department of the Interior:
    Bureau of Indian Affairs
    Bureau of Sport Fisheries and Wildlife
    National Park Service
    (5) Department of Justice:
    Drug Enforcement Administration
    Federal Bureau of Investigation
    Immigration and Naturalization Service
    U.S. Marshals Service
    (6) Department of Transportation:
    U.S. Coast Guard
    Office of Inspector General, Department of Transportation
    (7) Department of the Treasury:
    Bureau of Alcohol, Tobacco, and Firearms
    Executive Protective Service
    Internal Revenue Service
    Criminal Investigation Division
    Internal Security Division, Inspection Service
    U.S. Customs Service
    U.S. Secret Service
    (8) U.S. Postal Service:
    Inspection Service
    Office of Inspector General
    (9) Department of Commerce: Office of Export Enforcement
    (10) Small Business Administration: Investigations Division of the 
Office of Inspector General
    (11) Department of State: Diplomatic Security Service
    (12) Department of Labor: Office of Investigations and Office of 
Labor Racketeering of the Office of Inspector General
    (13) General Services Administration: Office of Inspector General
    (14) Department of Housing and Urban Development: Office of 
Inspector General
    (15) Department of the Interior: Office of Inspector General
    (16) Veterans Administration: Office of Inspector General
    (17) Environmental Protection Agency: Office of Criminal 
Investigations
    (18) Social Security Administration, Office of Inspector General
    (b) Local Law Enforcement Agencies:
    (1) District of Columbia Metropolitan Police Department
    (2) Law Enforcement Forces and Customs Agencies of Guam, The Virgin 
Islands, and the Canal Zone.

[Order No. 826-79, 44 FR 21785, Apr. 12, 1979]

    Editorial Note: For Federal Register citations affecting Sec. 60.3, 
see the List of Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



PART 61--PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT--Table of Contents




                           Subpart A--General

Sec.
61.1  Background.
61.2  Purpose.
61.3  Applicability.
61.4  Major federal action.

                   Subpart B--Implementing Procedures

61.5  Typical classes of action.
61.6  Consideration of environmental documents in decisionmaking.
61.7  Legislative proposals.
61.8  Classified proposals.
61.9  Emergencies.
61.10  Ensuring Department NEPA compliance.
61.11  Environmental information.

Appendix A to Part 61--Bureau of Prisons Procedures Relating to the 
          Implementation of the National Environmental Policy Act
Appendix B to Part 61--Drug Enforcement Administration Procedures 
          Relating to the Implementation of the National Environmental 
          Policy Act
Appendix C to Part 61--Immigration and Naturalization Service Procedures 
          Relating to the Implementation of the National Environmental 
          Policy Act
Appendix D to Part 61--Office of Justice Assistance, Research, and 
          Statistics Procedures Relating to the Implementation of the 
          National Environmental Policy Act

    Authority: 28 U.S.C. 509, 510; 5 U.S.C. 301; Executive Order No. 
11991.

    Source: Order No. 927-81, 46 FR 7953, Jan. 26, 1981, unless 
otherwise noted.



                           Subpart A--General



Sec. 61.1  Background.

    (a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321 et seq., establishes national policies and

[[Page 148]]

goals for the protection of the environment. Section 102(2) of NEPA 
contains certain procedural requirements directed toward the attainment 
of such goals. In particular, all federal agencies are required to give 
appropriate consideration to the environmental effects of their proposed 
actions in their decisionmaking and to prepare detailed environmental 
statements on proposals for legislation significantly affecting the 
quality of the human environment and on other major federal actions 
significantly affecting the quality of the human environment.
    (b) Executive Order No. 11991 of May 24, 1977, directed the Council 
on Environmental Quality (CEQ) to issue regulations to implement the 
procedural provisions of NEPA. Accordingly, CEQ issued final NEPA 
regulations, 40 CFR parts 1500-1508, (``The NEPA regulations''). These 
regulations provide that each federal agency shall, as necessary, adopt 
implementing procedures to supplement the regulations. The NEPA 
regulations identify those sections of the regulations which must be 
addressed in agency procedures.



Sec. 61.2  Purpose.

    The purpose of this part is to establish Department of Justice 
procedures which supplement the relevant provisions of the NEPA 
regulations and to provide for the implementation of those provisions 
identified in 40 CFR 1507.3(b).



Sec. 61.3  Applicability.

    The procedures set forth in this part, with the exception of the 
appendices, apply to all organizational elements of the Department of 
Justice. Internal procedures applicable, respectively, to the Bureau of 
Prisons, the Drug Enforcement Administration, the Immigration and 
Naturalization Service, and the Office of Justice Assistance, Research 
and Statistics are set forth in the appendices to this part, for 
informational purposes.



Sec. 61.4  Major federal action.

    The NEPA regulations define ``major federal action.'' ``Major 
federal action'' does not include action taken by the Department of 
Justice within the framework of judicial or administrative enforcement 
proceedings or civil or criminal litigation, including but not limited 
to the submission of consent or settlement agreements and 
investigations. Neither does ``major federal action'' include the 
rendering of legal advice.



                   Subpart B--Implementing Procedures



Sec. 61.5  Typical classes of action.

    (a) The NEPA regulations require agencies to establish three typical 
classes of action for similar treatment under NEPA. These classes are: 
actions normally requiring environmental impact statements (EIS), 
actions normally not requiring assessments or EIS, and actions normally 
requiring assessments but not necessarily EIS. Typical Department of 
Justice actions falling within each class have been identified as 
follows:
    (1) Actions normally requiring EIS. None, except as noted in the 
appendices to this part.
    (2) Actions normally not requiring assessments or EIS. Actions not 
significantly affecting the human environment.
    (3) Actions normally requiring assessments but not necessarily EIS. 
(i) Proposals for major federal action;
    (ii) Proposals for legislation developed by or with the significant 
cooperation and support of the Department of Justice and for which the 
Department has primary responsibility for the subject matter.
    (b) The Department of Justice shall independently determine whether 
an EIS or an environmental assessment is required where:
    (1) A proposal for agency action is not covered by one of the 
typical classes of action above; or
    (2) For actions which are covered, the presence of extraordinary 
circumstances indicates that some other level of environmental review 
may be appropriate.



Sec. 61.6  Consideration of environmental documents in decisionmaking.

    The NEPA regulations contain requirements to ensure adequate 
consideration of environmental documents in agency decisionmaking. To 
implement

[[Page 149]]

these requirements, the Department of Justice shall:
    (a) Consider from the earliest possible point in the process all 
relevant environmental documents in evaluating proposals for Department 
action;
    (b) Ensure that all relevant environmental documents, comments and 
responses accompany the proposal through existing Department review 
processes;
    (c) Consider those alternatives encompassed by the range of 
alternatives discussed when evaluating proposals for Department action, 
or if it is desirable to consider substantially different alternatives, 
first supplement the environmental document to include analysis of the 
additional alternatives;
    (d) Where an EIS has been prepared, consider the specific 
alternatives analyzed in the EIS when evaluating the proposal which is 
the subject of the EIS.



Sec. 61.7  Legislative proposals.

    (a) Each subunit of the Department of Justice which develops or 
significantly cooperates and supports a bill or legislative proposal to 
Congress which may have an effect on the environment shall, in the early 
stages of development of the bill or proposal, undertake an assessment 
to determine whether the legislation will significantly affect the 
environment. The Office of Legislative Affairs shall monitor legislative 
proposals to assure that Department procedures for legislation are 
complied with. Requests for appropriations need not be so analyzed.
    (b) If the Department of Justice has primary responsibility for the 
subject matter involved and if the subunit affected finds that the bill 
or legislative proposal has a significant impact on the environment, 
that subunit shall prepare a legislative environmental impact statement 
in compliance with 40 CFR 1506.8.



Sec. 61.8  Classified proposals.

    If an environmental document includes classified matter, a version 
containing only unclassified material shall be prepared unless the head 
of the office, board, bureau or division determines that preparation of 
an unclassified version is not feasible.



Sec. 61.9  Emergencies.

    CEQ shall be consulted when emergency circumstances make it 
necessary to take a major federal action with significant environmental 
impact without following otherwise applicable procedural requirements 
under NEPA.



Sec. 61.10  Ensuring Department NEPA compliance.

    The Land and Natural Resources Division shall have final 
responsibility for ensuring compliance with the requirements of the 
procedures set forth in this part.



Sec. 61.11  Environmental information.

    Interested persons may contact the Land and Natural Resources 
Division for information regarding Department Justice compliance with 
NEPA.

  Appendix A to Part 61--Bureau of Prisons Procedures Relating to the 
         Implementation of the National Environmental Policy Act

    1. Authority: (CEQ Regulations) NEPA, the Environmental Quality 
Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.) section 309 
of the Clean Air Act, as amended (42 U.S.C. 7609), and Executive Order 
11514, Protection and Enhancement of Environmental Quality (March 5, 
1970, as amended by Executive Order 11991, May 24, 1977.)
    2. Purpose: This guide shall apply to efforts associated with the 
leasing, purchase, design, construction, management, operation and 
maintenance of new and existing Bureau of Prisons facilities as well as 
the closing of existing Bureau of Prisons institutions. These procedures 
shall be used by the Regional Facilities Administration staff as well as 
the Central Office of Facilities Development and Operations staff. 
Activities concerning Bureau of Prisons compliance with NEPA shall be 
handled by and coordinated with these staff members and coordinated by 
Central Office Personnel. (Reference shall be made to Part 1507--Agency 
Compliance of the CEQ Regulations.)
    3. Agency Description: The Bureau of Prisons, a component of the 
U.S. Department of Justice, is responsible for providing custody and 
care to committed Federal offenders in an integrated system of 
correctional institutions across the nation.
    The Bureau of Prisons performs its mission of protecting society by 
implementing the judgments of the Federal courts and safeguarding 
Federal offenders committed to the custody of the Attorney General.

[[Page 150]]

    The administration of the Federal Prison System consists of six 
divisions. The central office in Washington, DC, is supplemented by five 
regional offices located in Atlanta, San Francisco, Dallas, Kansas City, 
and Philadelphia.
    4. (Reference: Sec. 1501.2(d)(1)--CEQ Regulations) The Bureau of 
Prisons shall make available the necessary technical staff to review 
proposals and prepare feasibility studies for facilities under 
consideration for possible use as Federal correctional institutions. 
(Reference: Sec. 1501.2(d)(2)--CEQ Regulations) At the appropriate time 
after project funding approval, the Bureau of Prisons, having identified 
a preferred general area for a new facility, will inform the members of 
Congress representing the affected locale of the intent to pursue the 
establishment of a Federal correctional institution in the area. This 
activation might include but not be limited to: (1) The construction of 
a new facility; (2) or Surplus Federal, state, or local facility to the 
Bureau of Prisons for prior use. The Bureau of Prisons shall advise and 
inform interested parties concerning proposed plans which might result 
in implementation of the NEPA regulations. After inital informal 
contacts have been made, the Bureau of Prisons will with the aid of 
local area officials, begin to identify desired locations for the 
proposed new facility. In the event of proposed activation of an 
existing facility for prison use, the Bureau of Prisons shall seek 
initial involvement among local officials and advice on alternative 
courses of action.
    In either case, if the issues appear significantly controversial, an 
informal public hearing will be held to present the issues to the 
community and seek their involvement in the planning process. Upon 
completion of the preliminary groundwork described above, the Bureau of 
Prisons will issue an A-95 letter of intent to (1) either file an EIS; 
(2) file an EIA; or (3) discontinue the efforts of locating a facility 
in the proposed area.
    5. Public Involvement: (Reference: Part 1506.6(3)--CEQ Regulations) 
Information regarding the policies of the Bureau of Prisons for 
implementing the NEPA process can be obtained from: Bureau of Prisons 
Facilities Development and Operations Office, 320 First Street, NW., 
Washington, DC 20534.
    6. Supplemental Statements: (Reference: Part 1502.9(c)(3)--CEQ 
Regulations) If it is necessary to prepare a supplement to a Draft or 
Final Environmental Impact Statement, the supplement shall be introduced 
into the project administrative record.
    7. Bureau of Prisons Decisionmaking Procedures: (Reference: Part 
1501.1 (a) through (e)--CEQ Regulations) Major decision points likely to 
involve the NEPA process:
    (1) Construction of a new Federal correctional institution.
    (2) Closing of an existing Federal correctional institution.
    (3) Activation of a surplus facility for conversion to a Federal 
correctional institution.
    (4) Significant change from the original mission of a Federal 
correctional institution.
    (5) New construction at an existing Federal correctional institution 
which might significantly impact upon the existing community 
environment.
    When the inclusion of certain voluminous data in environmental 
documents would prove impractical, the Bureau of Prisons will summarize 
the data and retain the original material as a part of its 
administrative record for the project. This material will be made 
available to the public in a central place to be designated in 
Environmental Impact Statements, and upon written request or court order 
copies of specified material will be provided. A charge may be made for 
copying, in accordance with current Department of Justice gudelines for 
reproduction of records.
    Decisionmakers shall verify the consideration of all available 
options in the EIS with a comparative analysis of the alternatives to be 
considered in the decisionmaking process.
    8. Those Actions Which Normally Do Require Environmental Impact 
Statements: (Reference: Sec. 1507.3(b)(2)(ii)--CEQ Regulations (1) New 
Federal correctional institution construction projects.
    (2) Acquisition of surplus facilities for conversion to Federal 
correctional institutions, if the impact upon the quality of the human 
environment is likely to be significant.
    (3) The closing of an existing Federal correctional institution, if 
that is likely to have a significant impact upon the quality of the 
human environment.
    (4) Significant change from the original mission of a Federal 
correctional institution when the issue is likely to have an impact upon 
the quality of the human environment.
    (5) New construction at an existing Federal correctional institution 
which would significantly affect the physical capacity, when the action 
is likely to have an impact upon the quality of the human environment.
    (6) New construction at an existing Federal correctional institution 
which would significantly impact upon the quality of the community 
environment.
    9. Those Actions Which Normally do not Require Either an 
Environmental Impact Statement or an Environmental Assessment: 
(Reference: Part 1507.3(b)(2)(ii) and Part 1508.4--CEQ Regulations) (1) 
Increase or decrease in population of a facility, above or below its 
physical capacity.
    (2) Construction projects for existing facilities, including but not 
limited to: additions and remodeling; replacement of building systems 
and components; maintenance

[[Page 151]]

and operations, repairs, and general improvements; when such projects do 
not significantly alter the program of the facility or significantly 
impact upon the quality of the environment in the community.
    (3) Contracts for halfway houses, community corrections centers, 
comprehensive sanction centers, community detention centers, or other 
similar facilities.
    10. Those Actions Which Normally Require Environmental Assessments 
but not Necessarily Environmental Impact Statements: (Reference: 
Sec. 1507.3(b)(2)(iii)--CEQ Regulations) (1) Acquisition of surplus 
facilities for conversion to Federal correctional institution.
    (2) Construction of additional facilities at an existing institution 
when the impact on the local environment is not seen to be significant, 
but when the alteration of programs or operations may be controversial.
    (3) The closing of an institution or significant reduction in 
population of an institution when the impact on the local environment is 
not seen to be significant.
    11. Emergency Actions: (Reference: Part 1506.11--CEQ Regulations). 
After consultation with the Council on Environmental Quality regarding 
alternative courses of action, the Bureau of Prisons may take action 
without observing the provisions of the CEQ Regulations and these Bureau 
of Prisons Procedures in the following cases:
    (1) When the replacement of suddenly unavailable local utilities 
services, and/or resources, due to circumstances beyond the control of 
the Bureau of Prisons, is vital to the lives and safety of inmates and 
staff or protection of U.S. Government property.
    (2) When unforeseen circumstances, such as greatly increased 
judicial commitments, suddenly dictate the activation of facilities to 
house increased numbers of Federal offenders and detainees significantly 
above the physical capacity of the combined Bureau of Prisons facilities 
in order to insure the lives and safety of inmates and staff or 
protection of U.S. Government property.
    (3) When the sudden destruction of or damage to institutions 
dictates immediate replacement in order to protect the lives and safety 
of inmates and staff and protection of U.S. Government property.
    12. Review.
    (1) If a proposed action is not covered by Sections 8 through 10 of 
this appendix, the Bureau of Prisons will independently determine 
whether to prepare either an environmental impact statement or an 
environmental assessment.
    (2) When a proposed action that could be classified as a categorical 
exclusion under Section 9 of this appendix involves extraordinary 
circumstances that may affect the environment, the Bureau shall conduct 
appropriate environmental studies to determine if the categorical 
exclusion classification is proper for that proposed action.

[Order No. 927-81, 46 FR 7953, Jan. 26, 1981, as amended by Order No. 
2142-98, 63 FR 11121, Mar. 6, 1998]

   Appendix B to Part 61--Drug Enforcement Administration Procedures 
 Relating to the Implementation of the National Environmental Policy Act

    1. Applicability.
    2. Typical Classes of Action Requiring Similar Treatment Under NEPA.
    3. Environmental Information.
    1. Applicability.
    This part applies to all organizational elements of the Drug 
Enforcement Administration [DEA].
    2. Typical Classes of Action Requiring Similar Treatment Under NEPA.
    (a) Section 1507.3(c)(2) in conjunction with Sec. 1508.4 requires 
agencies to establish three typical classes of action for similar 
treatment under NEPA. These typical classes of action are set forth 
below:

----------------------------------------------------------------------------------------------------------------
                                           (2) Actions normally not requiring    (3) Actions normally requiring
   (1) Actions normally requiring EIS       environmental assessments or EIS      environmental assessments but
                                                (Categorical exclusions)               not necessarily EIS
----------------------------------------------------------------------------------------------------------------
None....................................  Scheduling of drugs as controlled     Chemical eradication of plant
                                           substances.                           species from which controlled
                                                                                 substances may be extracted.
                                          Establishing quotas for controlled
                                           substances.
                                          Registration of persons authorized
                                           to handle controlled substances.
                                          Storage and destruction of
                                           controlled substances.
                                          Manual eradication of plant species
                                           from which controlled substances
                                           may be extracted.
----------------------------------------------------------------------------------------------------------------

    (b) For the principal DEA program requiring environmental review, 
the following chart identifies the point at which the NEPA process 
begins, the point at which it ends, and the key agency officials or 
offices required to consider environmental documents in their 
decisionmaking.

[[Page 152]]



----------------------------------------------------------------------------------------------------------------
                                                                                             Key officials or
                                                                   Completion of NEPA      offices required to
          Principal program             Start of NEPA process           process           consider environmental
                                                                                                documents
----------------------------------------------------------------------------------------------------------------
Eradication of plant species from      Prepare an               Final review of          Office of Science and
 which controlled substances may be     environmental            environmental            Technology.
 extracted.                             assessment.              assessment or
                                                                 Environmental Impact
                                                                 Statement.
----------------------------------------------------------------------------------------------------------------

    (c) The DEA shall independently determine whether an EIS or an 
environmental assessment is required where:
    (1) A proposal for agency action is not covered by one of the 
typical classes of action in (a) above; or
    (2) For actions which are covered, the presence of extraordinary 
circumstances indicates that some other level of environmental review 
may be appropriate.
    3. Environmental Information
    Interested persons may contact the Office of Science and Technology 
for information regarding the DEA compliance with NEPA.

Appendix C to Part 61--Immigration and Naturalization Service Procedures 
 Relating to the Implementation of the National Environmental Policy Act

    1. General. These procedures are published pursuant to the National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.), the Environmental Quality Improvement Act of 1970, as amended (42 
U.S.C. 4371 et seq.). Section 309 of the Clean Air Act, as amended (42 
U.S.C. 7609), and Executive Order 11514, Protection and Enhancement of 
Environmental Quality (March 5, 1970, as amended by Executive Order 
11991, May 24, 1977).
    2. Purpose. These procedures shall apply to efforts associated with 
the leasing, purchase, design, construction, and maintenance of new and 
existing INS facilities. All activities concerning the Immigration and 
Naturalization Service's compliance with NEPA shall be coordinated with 
Central Office Engineering staff.
    3. Agency Description. The INS administers and enforces the 
immigration and nationality laws. This includes determining the 
admissibility of persons seeking entry into the United States and 
adjudicating requests for benefits and privileges under the immigration 
and nationality laws. The enforcement actions of INS involve the 
prevention of illegal entry of persons into the United States and the 
investigation and apprehension of aliens already in the country who 
because of inadmissibility at entry or misconduct committed following 
entry may be subject to deportation.
    In carrying out its statutory enforcement responsibilities. the INS 
is authorized to arrest and detain aliens believed to be deportable and 
to effectuate removal from the U.S. of aliens found deportable after 
hearing.
    4. Designation of Responsible Official. The Chief Engineer, 
Facilities and Engineering Branch shall be the liasion official for INS 
with the Council on Environmental Quality, the Environmental Protection 
Agency, and the other departments and agencies concerning environmental 
matters. Duties of the Chief Engineer include:
    (a) Insuring compliance with the requirements of NEPA and that the 
actions with respect to the fulfillment of NEPA are coordinated;
    (b) Providing for procedural and substantive training on 
environmental issues, policy, procedures and clearance requirements;
    (c) Providing guidance in the preparation and processing of 
Environmental Impact Statements; and
    (d) Participating in policy formulation, as necessary, in the 
application of the requirements of the National Environmental Policy Act 
of 1969.
    5. NEPA and INS Planning. (a) INS will make available to the public 
proposals and feasibility studies for facilities under consideration for 
possible use as INS facilities.
    (b) Interested parties indentified as such by the local 
clearinghouse (as established by the Office of Management and Budget 
Circular No. A-95) will be advised and informed concerning proposed 
plans which might involve NEPA regulations.
    (c) Upon completion of the preliminary groundwork described above, 
INS will issue an A-95 Letter of Intent to:
    (1) File an Environmental Impact Assessment (EIA);
    (2) File an Environmental Impact Statement (EIS). (Reference: 
1501.2--CEQ Regulations.)
    6. Public Involvement. Information regarding the policies of INS for 
implementing the NEPA process can be obtained from: Immigration and 
Naturalization Service, Facilities and Engineering Branch, 425 I Street 
NW., Washington, DC 20536. (Reference: Part 1506.6(3)--CEQ Regulations.)
    7. Supplemental Statements. If it is necessary to prepare a 
supplement to a draft or a Final Environmental Impact Statement, the 
supplement shall be introduced into the administrative record pertaining 
to the project. (Reference: Part 1502.9(c)(3)--CEQ Regulations.)

[[Page 153]]

    8. INS Decisionmaking Procedure. (a) Policy--(1) The Chief Engineer 
will consider all practical means, including the ``no-action'' 
alternative and other alternatives to the proposed action, which will 
enhance, protect, and preserve the quality of the environment, restore 
environmental quality previously lost, and minimize and mitigate 
unavoidable adverse effects. He will analyze and study the environment 
together with engineering, economic, social and other considerations to 
insure balanced decisionmaking in the overall public interest.
    (2) During INS project planning and the related decisonmaking 
process, environmental effects will be weighed together with the 
engineering, economic and social and other considerations affecting the 
public interest.
    (b) Preparation of the environmental impact statements. (1) 
Situations where Environmental Impact Statements (EIS) are required are 
described in section 102(2)(C) of NEPA. EIS constitute an integral of 
the plan formulation process and serve as a summation and evaluation of 
the effects, both beneficial and adverse, that each alternative action 
would have on the environment, and as an explanation and objective 
evaluation of the plan which is finally recommended.
    (2) Should the Chief Engineer determine in assessing the impact of a 
minor action that an environmental statement is not required, the 
determination to that effect will be placed in the project file. This 
negative determination shall be made available to the public as required 
in Sec. 1506.6 of the CEQ regulations and shall include a statement of 
the facts and the basis for the decision.
    (3) When inclusion of certain voluminous data in an EIS would prove 
to be impractical, INS will summarize the data and retain the original 
material as a part of its administrative record for the project. This 
material will be made available to the public in a central place to be 
designated in the EIS, and upon written request or court order, copies 
of specified material will be provided. A charge for the reproduction of 
records may be made in accordance with current Department of Justice 
guidelines. (Reference: Part 1505 CEQ Regulations.)
    9. Actions Which Normally Do Require Environmental Impact 
Statements: (a) Construction of a new INS facility which would have a 
significant impact upon the environment.
    (b) Construction of a new addition to an existing INS facility which 
would significantly affect the physical capacity and which would have a 
significant impact upon the environment. (Reference: 
Sec. 1507.3(b)(2)(i)--CEQ Regulations.)
    10. Actions Which Normally Do Not Require Either An Environmental 
Impact Statement Or An Environmental Assessment: (a) Construction 
projects for existing facilities including but not limited to: 
Remodeling; replacement of building systems and components; maintenance 
and operations repairs and general improvements when such projects do 
not significantly alter the intitial occupancy and program of the 
facility or significantly impact upon the environment.
    (b) Increase or decrease in population of a facility within its 
physical capacity. (Reference: Part 1507.3(b)(2)(ii) and Part 1508.4--
CEQ Regulations.)
    11. Actions Which Normally Require An Environmental Assessment But 
Not Necessarily Environmental Impact Statements:
    (a) Construction of a new addition to an existing INS facility which 
may affect the physical capacity and may have some impact upon the 
environment.
    (b) Closing of an INS facility which may have some impact on the 
environment. (Reference: Sec. 1507.3(b)(2)(iii)--CEQ Regulations.)

   Appendix D to Part 61--Office of Justice Assistance, Research, and 
  Statistics Procedures Relating to the Implementation of the National 
                        Environmental Policy Act

                              1. Authority

    These procedures are issued pursuant to the National Environmental 
Policy Act (NEPA) of 1969, 42 U.S.C. 4321, et seq., Regulations of the 
Council on Environmental Quality, 40 CFR part 1500, et seq., the 
Environmental Quality Improvement Act of 1970, as amended, 42 U.S.C. 
4371, et seq., Section 309 of the Clean Air Act, as amended, 42 U.S.C. 
7609, and Executive Order 11514, ``Protection and Enhancement of 
Environmental Quality,'' March 5, 1970, as amended by Executive Order 
11991, March 24, 1977.

                               2. Purpose

    It is the purpose of these procedures to supplement the procedures 
of the Department of Justice so as to insure compliance with NEPA. These 
procedures supersede the regulations contained in 28 CFR part 19.

                          3. Agency description

    The Office of Justice Assistance, Research, and Statistics (OJARS) 
assists State and local units of government in strengthening and 
improving law enforcement and criminal justice by providing financial 
assistance and funding research and statistical programs. OJARS will 
coordinate the activities and provide the staff support for three 
Department of Justice Federal financial assistance offices: the Law 
Enforcement Assistance Administration, the National Institute of 
Justice, and the Bureau of Justice Statistics.

[[Page 154]]

Each of the assistance offices has the authority to award grants, 
contracts and cooperative agreements pursuant to the Justice System 
Improvement Act of 1979, Public Law 96-157 (December 27, 1979).

                 4. Typical classes of action undertaken

    (a) Actions which normally require an environmental impact 
statement.
    (1) None.
    (b) Actions which normally do not require either an environmental 
impact statement or an environmental assessment.
    (1) The bulk of the funded efforts; training programs, court 
improvement projects, research, and gathering statistical data.
    (2) Minor renovation projects or remodeling.
    (c) Actions which normally require environmental assessments but not 
necessarily environmental impact statements.
    (1) Renovations which change the basic prior use of a facility or 
significantly change the size.
    (2) New construction.
    (3) Research and technology whose anticipated and future application 
could be expected to have an effect on the environment.
    (4) Implementation of programs involving the use of chemicals.
    (5) Other actions in which it is determined by the Administrator, 
Law Enforcement Assistance Administration; the Director, Bureau of 
Justice Statistics; or the Director, National Institute of Justice, to 
be necessary and appropriate.

                          5. Agency procedures

    An environmental coordinator shall be designated in the Bureau of 
Justice Statistics, the Law Enforcement Assistance Administration, and 
in the National Institute of Justice. Duties of the environmental 
coordinator shall include:
    (a) Insuring that adequate environmental assessments are prepared at 
the earliest possible time by applicants on all programs or projects 
that may have a significant impact on the environment. The assessments 
shall contain documentation from independent parties with expertise in 
the particular environmental matter when deemed appropriate. The 
coordinator shall return assessments that are found to be inadequate.
    (b) Reviewing the environmental assessments and determining whether 
an Environmental Impact Statement is required or preparing a ``Finding 
of No Significant Impact.''
    (c) Coordinating the efforts for the preparation of an Environmental 
Impact Statement consistent with the requirements of 40 CFR part 1502.
    (d) Cooperating and coordinating efforts with other Federal 
agencies.
    (e) Providing for agency training on environmental matters.

             6. Compliance with other environmental statutes

    To the extent possible an environmental assessment, as well as an 
environmental impact statement, shall include information necessary to 
assure compliance with the following:
    Fish and Wildlife Coordination Act, 16 U.S.C. 661, et seq.; the 
National Historic Preservation Act of 1966, 16 U.S.C. 470, et seq.; 
Flood Disaster Protection Act of 1973, 42 U.S.C. 400, et seq.; Clean Air 
Act and Federal Water Pollution Control Act, 42 U.S.C. 1857, et seq.; 33 
U.S.C. 1251, et seq.; Safe Drinking Water Act, 42 U.S.C. 300, et seq.; 
Wild and Scenic Rivers Act, 16 U.S.C. 1271, et seq.; the Coastal Zone 
Management Act of 1972, 16 U.S.C. 1451, et seq.; and other environmental 
review laws and executive orders.

 7. Actions planned by private applicants or other non-Federal entities

    Where actions are planned by private applicants or other non-Federal 
entities before Federal involvement:
    (a) The Policy and Management Planning Staff, Office of Criminal 
Justice Programs, LEAA, Room 1158B, 633 Indiana Ave., Washington, DC 
20531, Telephone: 202/724-7659, will be available to advise potential 
applicants of studies or other information foreseeably required for 
later Federal action;
    (b) OJARS will consult early with appropriate State and local 
agencies and with interested private persons and organizations when its 
own involvement is reasonably foreseeable;
    (c) OJARS will commence its NEPA process at the earliest possible 
time (Ref. Sec. 1501.2(d) CEQ Regulations).

                         8. Supplementing an EIS

    If it is necessary to prepare a supplement to a draft or a final 
EIS, the supplement shall be introduced into the administrative record 
pertaining to the project. (Ref. Sec. 1502.9(c)(3) CEQ Regulations).

                     9. Availability of information

    Information regarding status reports on EIS's and other elements of 
the NEPA process and policies of the agencies can be obtained from: 
Policy and Management Planning Staff, Office of Criminal Justice 
Programs, LEAA, Room 1158B, 633 Indiana Avenue, Washington, DC 20531, 
Telephone: 202/724-7659.



PART 63--FLOODPLAIN MANAGEMENT AND WETLAND PROTECTION PROCEDURES--Table of Contents




Sec.
63.1  Purpose.

[[Page 155]]

63.2  Policy.
63.3  References.
63.4  Definitions.
63.5  Responsibilities.
63.6  Procedures.
63.7  Determination of location.
63.8  Implementation.
63.9  Exception.

    Authority: 5 U.S.C. 301, Executive Order No. 11988 of May 24, 1977, 
and Executive Order No. 11990 of May 24, 1977.

    Source: Order No. 902-80, 45 FR 50565, July 30, 1980, unless 
otherwise noted.



Sec. 63.1  Purpose.

    These guidelines set forth procedures to be followed by the 
Department of Justice to implement Executive Order 11988 (Floodplain 
Management) and Executive Order 11990 (Protection of Wetlands). (The 
Orders.)



Sec. 63.2  Policy.

    (a) It is the Department of Justice's policy to avoid to the extent 
possible the long and short term adverse impacts associated with the 
destruction or modification of wetlands and floodplains and to avoid 
direct or indirect support of new construction in floodplains and 
wetlands whenever there is a practicable alternative. The Department 
will provide leadership and take affirmative action to carry out the 
Orders.
    (b) It is the Department of Justice's intention to integrate these 
procedures with those required under statutes protecting the 
environment, such as the National Environmental Policy Act (NEPA). 
Whenever possible, the procedures detailed herein should be coordinated 
with other required documents, such as the environmental impact 
statement (EIS) or environmental assessment required under NEPA, so that 
unnecessary paperwork can be eliminated.



Sec. 63.3  References.

    (a) Unified National Program for Floodplain Management, Water 
Resources Council, which is incorporated in these guidelines.
    (b) Water Resources Council Floodplain Management Guidelines, Water 
Resources Council, 1978 (43 FR 6030).
    (c) National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 
et seq.) and NFIP criteria (44 CFR part 59 et seq.).
    (d) Flood Disaster Protection Act of 1973 (Pub. L. 93-234, 87 Stat. 
975).
    (e) National Environmental Policy Act of 1969, as amended (43 U.S.C. 
4321 et seq.) (NEPA).



Sec. 63.4  Definitions.

    Throughout this part, the following basic definitions shall apply:
    (a) Action--any Federal activity including:
    (1) Acquiring, managing and disposing of Federal lands and 
facilities;
    (2) Providing federally undertaken, financed, or assisted 
construction and improvements; and
    (3) Conducting Federal activities and program affecting land use, 
including but not limited to water and related land resources planning, 
regulating, and licensing activities.
    (b) Agency-- an executive department, a government corporation, or 
an independent establishment and includes the military departments.
    (c) Base flood-- that flood which has a one percent chance of 
occurrence in any given year (also known as a 100-year flood). (This 
term is used in the National Flood Insurance Program (NFIP) to indicate 
the minimum level of flooding to be used by a community in its 
floodplain management regulations.)
    (d) Base floodplain-- the 100-year floodplain (one percent chance 
floodplain). Also see definition of floodplain.
    (e) Channel-- a natural or artificial watercourse of perceptible 
extent, with a definite bed and banks to confine and conduct 
continuously or periodically flowing water.
    (f) Critical action--any activity for which even a slight chance of 
flooding would be too great.
    (g) Facility-- any man-made or man-placed item other than a 
structure.
    (h) Flood or flooding-- a general and temporary condition of partial 
or complete inundation of normally dry land areas from the overflow of 
inland and/or tidal waters, and/or the usual and rapid accumulation or 
runoff of surface waters from any source.
    (i) Flood fringe-- that portion of the floodplain outside of the 
regulatory

[[Page 156]]

floodway (often referred to as ``floodway fringe'').
    (j) Floodplain-- the lowland and relatively flat areas adjoining 
inland and coastal waters including floodprone areas of offshore 
islands, including at a minimum, that area subject to a one percent or 
greater chance of flooding in any given year. The base floodplain shall 
be used to designate the 100-year floodplain (one percent chance 
floodplain). The critical action floodplain is defined as the 500-year 
floodplain (0.2 percent chance floodplain).
    (k) Floodproofing-- the modification of individual structures and 
facilities, their sites, and their contents to protect against 
structural failure, to keep water out or to reduce effects of water 
entry.
    (l) Minimize-- to reduce to the smallest possible amount or degree.
    (m) One percent chance flood-- the flood having one chance in 100 of 
being exceeded in any one-year period (a large flood). The likelihood of 
exceeding this magnitude increases in a time period longer than one 
year. For example, there are two chances in three of a larger flood 
exceeding the one percent chance flood in a 100-year period.
    (n) Practicable-- capable of being done within existing constraints. 
The test of what is practicable depends upon the situation and includes 
consideration of the pertinent factors, such as environment, cost or 
technology.
    (o) Preserve-- to prevent modification to the natural floodplain 
environment or to maintain it as closely as possible to its natural 
state.
    (p) Regulatory floodway-- the area regulated by Federal, State or 
local requirements; the channel of a river or other watercourse and the 
adjacent land areas that must be reserved in an open manner, i.e., 
unconfined or unobstructed either horizontally or vertically, to provide 
for the discharge of the base flood so the cumulative increase in water 
surface elevation is no more than a designated amount (not to exceed one 
foot as set by the NFIP).
    (q) Restore-- to re-establish a setting or environment in which the 
natural functions of the floodplain can again operate.
    (r) Structures-- walled or roofed buildings, including mobile homes 
and gas or liquid storage tanks that are primarily above ground (as set 
by the NFIP).
    (s) Wetlands--``those areas that are inundated by surface or ground 
water with a frequency sufficient to support and under normal 
circumstances does or would support a prevalence of vegetative or 
aquatic life that requires saturated or seasonally saturated soil 
conditions for growth and reproduction. Wetlands generally include 
swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet 
meadows, river overflows, mud flats, and natural ponds'' (as defined in 
Executive Order 11990 (Protection of Wetlands)).



Sec. 63.5  Responsibilities.

    (a) The Assistant Attorney General, Land and Natural Resources 
Division,
    (1) Has overall responsibility for ensuring that the Department's 
responsibilities for complying with the Orders are carried out,
    (2) Will ensure that the Water Resources Council, the Council on 
Environmental Quality, and the Federal Insurance Agency (FIA) are kept 
informed of the Department's execution of the Orders, as necessary, and
    (3) Will determine, and revise on a continuing basis, which 
components of the Department should take further steps, such as the 
promulgation of program specific procedures, to comply with the Orders. 
Considerations for making this selection are whether a component:
    (i) Acquires, manages, and disposes of federal lands and facilities;
    (ii) Provides federally undertaken, financed or assisted 
construction and improvements;
    (iii) Conducts federal activities and programs affecting land use, 
including but not limited to water and related land resources planning, 
regulating, and licensing activities;
    (iv) Reviews and approves component procedures for complying with 
the Orders;
    (b) The heads of offices, boards, bureaus and divisions,
    (1) Are responsible for preparing program specific guidelines or 
procedures, where necessary, to comply with the

[[Page 157]]

Orders and for updating these procedures, as required,
    (2) Will maintain general supervision over any new construction 
planning within the office, board, bureau, or division to see that the 
policy considerations and procedural requirements contained herein are 
followed in the planning process,
    (3) Will furnish, with all requests for new authorizations or 
appropriations for proposals to be located in floodplains or wetlands, a 
statement that the proposal is in accord with the Orders,
    (4) Will provide information to applicants for licenses, permits, 
loans or grants in areas in which floodplain and wetland requirements 
may have to be met,
    (5) Will provide conspicuous notice of past flood damage and 
potential flood hazard on structures under the component's control and 
used by the general public, and
    (6) If responsible for granting a lease, an easement, or right-of-
way, or for disposing of federal property in a floodplain or wetland to 
nonfederal public or private parties, will, unless otherwise directed by 
law.
    (i) Reference uses in the conveyance that are restricted under 
identified Federal, State or local floodplain regulations; and
    (ii) Attach other appropriate restrictions; or
    (iii) Refuse to convey.



Sec. 63.6  Procedures.

    Prior to taking any action, as defined in Sec. 63.4(a) of this part, 
an office, board, bureau or division shall:
    (a) Determine whether the proposed action is located in a wetland 
and/or the 100-year floodplain (or the 500-year floodplain for critical 
actions) and determine whether the proposed action has the potential to 
affect or be affected by a floodplain or wetland. The determination 
concerning location in a floodplain or wetland shall be performed in 
accordance with Sec. 63.7 of this part. For actions which are in both a 
floodplain and wetland, the wetland should be considered as one of the 
natural and beneficial values of the floodplain.
    (b) Notify the public at the earliest possible time of the intent to 
carry out the action affecting or affected by a floodplain or wetland, 
and involve the broadest affected and interested public in the 
decisionmaking process. At a minimum, all notices shall be published in 
the newspaper serving the project area that has the widest circulation 
and shall be distributed through the A-95 review process if subject to 
that process. In addition, notices of actions shall be published in the 
Federal Register, if so required by the Assistant Attorney General, Land 
and Natural Resources Division, or by law. For certain actions, notice 
may entail other audiences and means of distribution. All actions shall 
be reviewed according to the following criteria to determine the 
appropriate audience for and means of notification beyond those required 
above: Scale of action, potential for controversy, degree of public need 
for the action, number of affected persons, and anticipated potential 
impacts. Each notice shall include the following: A statement of the 
purpose of and a description of the proposed action, a map of the 
general area clearly delineating the action's locale and its 
relationship to its environs, a statement that it has been determined to 
be located in or that it affects a floodplain or wetland, a statement of 
intent to avoid the floodplain or wetland where practicable, and to 
mitigate impacts where avoidance cannot be achieved, and identification 
of the responsible official for receipt of comments and for further 
information.
    (c) Identify and evaluate practicable alternatives to locating in a 
floodplain or wetland (including alternative sites outside the 
floodplain or wetland; alternative actions which serve essentially the 
same purpose as the proposed action, but which have less potential to 
adversely affect the floodplain or wetland; and the ``no action'' 
option). The following factors shall be analyzed in determining the 
practicability of alternatives: Natural environment (topography, 
habitat, hazards, etc.); social concerns (aesthetics, historical and 
cultural values, land use patterns, etc.); economic aspects (costs of 
space, construction, services, and relocation); and legal constraints 
(deeds, leases,

[[Page 158]]

etc.). The component shall not locate the proposed action in the base 
floodplain (500-year floodplain for critical actions) or in a wetland if 
a practicable alternative exists outside the base floodplain (500-year 
floodplain for critical actions) or wetland.
    (d) Identify the full range of potential direct or indirect adverse 
impacts associated with the occupancy and modification of floodplains 
and wetlands and the direct and indirect support of floodplain and 
wetland development that could result from the proposed action. Flood 
hazard-related factors shall be analyzed for all actions. These include, 
for example, the following: Depth, velocity and rate of rise of flood 
water; duration of flooding, high hazard areas (riverine and coastal); 
available warning and evacuation time and routes; effects of special 
problems, e.g., levees and other protection works, erosion, subsidence, 
sink holes, ice jams, combinations of flood sources, etc. Natural 
values-related factors, shall be analyzed for all actions. These 
include, for example, the following: water resource values (natural 
moderation of floods, water quality maintenance, and ground water 
recharge); living resource values (fish and wildlife and biological 
productivity); cultural resource values (archeological and historic 
sites, and open space for recreation and green belts); and agricultural, 
aquacultural and forestry resource values. Factors relevant to a 
proposed action's effects on the survival and quality of wetlands, shall 
be analyzed for all actions. These include, for example, the following: 
Public health, safety, and welfare, including water supply, quality, 
recharge and discharge; pollution; flood and storm hazards, sediment and 
erosion; maintenance of natural systems, including conservation and long 
term productivity of existing flora and fauna, species and habitat 
diversity and stability, hydrologic utility, fish, wildlife, timber, and 
food and fiber resources; and other uses of wetlands in the public 
interest, including recreational, scientific, and cultural uses.
    (e) Where avoidance of floodplains or wetlands cannot be achieved, 
design or modify its actions so as to minimize harm to or within the 
floodplain, minimize the destruction, loss or degradation of wetlands, 
restore and preserve natural and beneficial floodplain values, and 
preserve and enhance natural and beneficial wetland values. The 
component shall minimize potential harm to lives and property from the 
100-year flood (500-year flood for critical actions), minimize potential 
adverse impacts the action may have on others, and minimize potential 
adverse impacts the action may have on floodplain and wetland values, 
Minimization of harm to property shall be performed in accord with the 
standards and criteria set out at 44 CFR part 59 et seq., (formerly 24 
CFR part 1901 et seq.), substituting the 500-year standard for critical 
actions and, where practicable, elevating structures on open works--
walls, columns, piers, piles, etc.--rather than on fill. Minimization of 
harm to lives shall include, but not be limited to, the provision for 
warning and evacuation procedures for all projects and shall emphasize 
adequacy of warning time and access and egress routes.
    (f) Re-evaluate the proposed action to determine, first, if it is 
still practicable in light of its exposure to flood hazards and its 
potential to disrupt floodplain and wetland values and, second, if 
alternatives rejected at paragraph (c) of this section are practicable, 
in light of the information gained in paragraphs (d) and (e) of this 
section. Unless required by law, the proposed action shall not be 
located in a floodplain or wetland unless the importance of the 
floodplain or wetland site clearly outweighs the requirements of E.O. 
11988 and E.O. 11990 to avoid direct or indirect support of floodplain 
and wetland development; reduce the risk of flood loss; minimize the 
impact of floods on human safety, health and welfare; restore and 
preserve floodplain values; and minimize the destruction, loss or 
degradation of wetlands. In addition, where there are no practicable 
alternative sites and actions, and where the potential adverse effects 
of using the floodplain or wetland site cannot be minimized, no action 
shall be taken, unless required by law.

[[Page 159]]

    (g) Prepare, and circulate a finding and public explanation of any 
final decision that there is no practicable alternative to locating an 
action in, or affecting a floodplain or wetland. The same audience and 
means of distribution used in paragraph (b) of this section, shall be 
used to circulate this finding. The finding shall include the following: 
the reasons why the action is proposed to be located in a floodplain or 
wetland, a statement indicating whether the action conforms to 
applicable State or local floodplain management standards, a list of 
alternatives considered, and a map of the general area clearly 
delineating the project locale and its relationship to its environs. A 
brief comment period on the finding shall be provided wherever 
practicable prior to taking any action.
    (h) Review the implementation and post implementation phase of the 
proposed action to ensure that the provisions of paragraph (e) of this 
section, are fully implemented. This responsibility shall be fully 
integrated into existing review, audit, field oversight and other 
monitoring processes, and additional procedures shall be prepared where 
existing procedures may be inadequate to ensure that the Orders' goals 
are met.



Sec. 63.7  Determination of location.

    (a) In order to determine whether an action is located on or affects 
a floodplain, the component shall:
    (1) Consult the FIA Flood Insurance Rate Map (FIRM) and the Flood 
Insurance Study (FIS); or
    (2) If a detailed map (FIRM) is not available, consult an FIA Flood 
Hazard Boundary Map (FHBM); or
    (3) If data on flood elevations, floodways, or coastal high hazard 
areas are needed, or if none of the maps delineates the flood hazard 
boundaries in the vicinity of the proposed site, seek detailed 
information and assistance as necessary and appropriate from the 
Department of Agriculture's Soil Conservation Service, the Army Corps of 
Engineers, the National Oceanic and Atmospheric Administration, the 
Federal Emergency Management Agency's Regional Offices/Division of 
Insurance and Hazard Mitigation, the Department of the Interior's 
Geological Survey, Bureau of Land Management, and Bureau of Reclamation, 
the Tennessee Valley Authority, the Delaware River Basin Commission, the 
Susquehanna River Basin Commission, individual states and/or land 
administering agencies; or
    (4) If the sources listed above do not have or know of the 
information necessary to comply with the Orders' requirements, seek, as 
permitted by law, the services of a federal or other engineer 
experienced in this work to
    (i) Locate the site and the limits of the coastal high hazard area, 
floodway and of the applicable floodplain, and
    (ii) Determine base flood elevations.
    (b) In the absense of a finding to the contrary, the component shall 
assume that action involving a facility or structure that has been 
flooded in a major disaster or emergency is in the applicable floodplain 
for the site of the proposed action.
    (c) In order to determine whether an action is located on or affects 
a wetland, the component shall:
    (1) Consult with the United States Fish and Wildlife Service (FWS) 
for information concerning the location, scale and type of wetlands 
within the area which could be affected by the proposed action; or
    (2) If the FWS does not have adequate information upon which to base 
the determination, consult wetland inventories maintained by the Army 
Corps of Engineers, the Environmental Protection Agency, various states, 
communities and others; or
    (3) If state or other sources do not have adequate information upon 
which to base the determination, insure that an on-site analysis is 
performed by a representative of the FWS or other qualified individual 
for wetlands characteristics based on the performance definition of what 
constitutes a wetland.



Sec. 63.8  Implementation.

    Agencies and divisions within the Department of Justice shall amend 
existing regulations and procedures, as appropriate, to incorporate the 
policy and procedures set forth in these guidelines. Such amendments 
will be made

[[Page 160]]

within 6 months of final publication of these guidelines.



Sec. 63.9  Exception.

    Nothing in these guidelines shall apply to assistance provided for 
emergency work essential to save lives and protect property and public 
health and safety performed pursuant to sections 305 and 306 of the 
Disaster Relief Act of 1974 (88 Stat. 148, 42 U.S.C. 5145 and 5146).



PART 64--DESIGNATION OF OFFICERS AND EMPLOYEES OF THE UNITED STATES FOR COVERAGE UNDER SECTION 1114 OF TITLE 18 OF THE U.S. CODE--Table of Contents




Sec.
64.1  Purpose.
64.2  Designated officers and employees.

    Authority: 18 U.S.C. 1114, 28 U.S.C. 509, 5 U.S.C. 301.



Sec. 64.1  Purpose.

    This regulation designates categories of federal officers and 
employees in addition to those already designated by the statute, who 
will be within the protective coverage of 18 U.S.C. 1114, which 
prohibits the killing or attempted killing of such designated officers 
and employees. The categories of federal officers and employees covered 
by section 1114 are also protected, while they are engaged in or on 
account of the performance of their official duties, from a conspiracy 
to kill, 18 U.S.C. 1117; kidnaping, 18 U.S.C. 1201(a)(5); forcible 
assault, intimidation, or interference, 18 U.S.C. 111; and threat of 
assault, kidnap or murder with intent to impede, intimidate, or 
retaliate against such officer or employee, 18 U.S.C. 115(a)(1)(B). In 
addition, the immediate family members of such officers and employees 
are protected against assault, kidnap, murder, attempt to kidnap or 
murder, and threat to assault, kidnap, or murder with intent to impede, 
intimidate, or retaliate against such officer or employee, 18 U.S.C. 
115(a)(1)(A). The protective coverage has been extended to those federal 
officers and employees whose jobs involve inspection, investigative or 
law enforcement responsibilities, or whose work involves a substantial 
degree of physical danger from the public that may not be adequately 
addressed by available state or local law enforcement resources.

[Order No. 1874-94, 59 FR 25816, May 18, 1994]



Sec. 64.2  Designated officers and employees.

    The following categories of federal officers and employees are 
designated for coverage under section 1114 of title 18 of the U.S. Code:
    (a) Judges and special trial judges of the U.S. Tax Court;
    (b) Commissioners and employees of the U.S. Parole Commission;
    (c) Attorneys of the Department of Justice;
    (d) Resettlement specialists and conciliators of the Community 
Relations Service of the Department of Justice;
    (e) Officers and employees of the Bureau of Prisons;
    (f) Criminal investigators employed by a U.S. Attorney's Office; and 
employees of a U.S. Attorney's Office assigned to perform debt 
collection functions;
    (g) U.S. Trustees and Assistant U.S. Trustees; bankruptcy analysts 
and other officers and employees of the U.S. Trustee System who have 
contact with creditors and debtors, perform audit functions, or perform 
other investigative or enforcement functions in administering the 
bankruptcy laws;
    (h) Attorneys and employees assigned to perform or to assist in 
performing investigative, inspection or audit functions of the Office of 
Inspector General of an ``establishment'' or a ``designated Federal 
entity'' as those terms are defined by section 11 and 8E, respectively, 
of the Inspector General Act of 1978, as amended, 5 U.S.C. app. 3 
section 11 and 8E, and of the Offices of the Inspector General of the 
U.S. Government Printing Office, the Merit Systems Protection Board, and 
the Selective Service System.
    (i) Employees of the Department of Agriculture at the State, 
district or county level assigned to perform loan making, loan servicing 
or loan collecting function;
    (j) Officers and employees of the Bureau of Alcohol, Tobacco and 
Firearms

[[Page 161]]

assigned to perform or to assist in performing investigative, inspection 
or law enforcement functions;
    (k) Federal air marshals of the Federal Aviation Administration;
    (l) Employees of the Bureau of Census employed in field work 
conducting censuses and surveys;
    (m) Employees and members of the U.S. military services and 
employees of the Department of Defense who:
    (1) Are military police officers,
    (2) Have been assigned to guard and protect property of the United 
States, or persons, under the administration and control of a U.S. 
military service or the Department of Defense, or
    (3) Have otherwise been assigned to perform investigative, 
correction or other law enforcement functions;
    (n) The Director, Deputy Director for Supply Reduction, Deputy 
Director for Demand Reduction, Associate Director for State and Local 
Affairs, and Chief of Staff of the Office of National Drug Control 
Policy;
    (o) Officers and employees of the Department of Energy authorized to 
carry firearms in the performance of investigative, inspection, 
protective or law enforcement functions;
    (p) Officers and employees of the U.S. Environmental Protection 
Agency assigned to perform or to assist in performing investigative, 
inspection or law enforcement functions;
    (q) Biologists and technicians of the U.S. Fish and Wildlife Service 
who are participating in sea lamprey control operations;
    (r) Uniformed and nonuniformed special police of the General 
Services Administration; and officers and employees of the General 
Services Administration assigned to inspect property in the process of 
its acquisition by or on behalf of the U.S. Government;
    (s) Special Agents of the Security Office of the U.S. Information 
Agency;
    (t) Employees of the regional, subregional and resident offices of 
the National Labor Relations Board assigned to perform investigative and 
hearing functions or to supervise the performance of such functions; and 
auditors and Security Specialists of the Division of Administration of 
the National Labor Relations Board;
    (u) Officers and employees of the U.S. Nuclear Regulatory 
Commission:
    (1) Assigned to perform or to assist in performing investigative, 
inspection or law enforcement functions or
    (2) Engaged in activities related to the review of license 
applications and license amendments;
    (v) Investigators employed by the U.S. Office of Personnel 
Management;
    (w) Attorneys, accountants, investigators and other employees of the 
U.S. Securities and Exchange Commission assigned to perform or to assist 
in performing investigative, inspection or other law enforcement 
functions;
    (x) Employees of the Social Security Administration assigned to 
Administration field offices, hearing offices and field assessment 
offices;
    (y) Officers and employees of the Tennessee Valley Authority 
authorized by the Tennessee Valley Authority Board of Directors to carry 
firearms in the performance of investigative, inspection, protective or 
law enforcement functions;
    (z) Officers and employees of the Federal Aviation Administration, 
the Federal Highway Administration, the National Highway Traffic Safety 
Administration, the Research and Special Programs Administration and the 
Saint Lawrence Seaway Development Corporation of the U.S. Department of 
Transportation who are assigned to perform or assist in performing 
investigative, inspection or law enforcement functions;
    (aa) Federal administrative law judges appointed pursuant to 5 
U.S.C. 3105; and
    (bb) Employees of the Office of Workers' Compensation Programs of 
the Department of Labor who adjudicate and administer claims under the 
Federal Employees' Compensation Act, the Longshore and Harbor Workers' 
Compensation Act and its extension, or the Black Lung Benefits Act.

[Order No. 1874-94, 59 FR 25816, May 18, 1994]



PART 65--EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE--Table of Contents




                     Subpart A--Eligible Applicants

Sec.
65.1  General.

[[Page 162]]

65.2  State Government.

           Subpart B--Allocation of Funds and Other Assistance

65.10  Fund availability.
65.11  Limitations on fund and other assistance use.
65.12  Other assistance.

   Subpart C--Purpose of Emergency Federal Law Enforcement Assistance

65.20  General.
65.21  Purpose of assistance.
65.22  Exclusions.

                  Subpart D--Application for Assistance

65.30  General.
65.31  Application content.

            Subpart E--Submission and Review of Applications

65.40  General.
65.41  Review of State applications.

                   Subpart F--Additional Requirements

65.50  General.
65.51  Recordkeeping.
65.52  Civil rights.
65.53  Confidentiality of information.

                      Subpart G--Repayment of Funds

65.60  Repayment of funds.

                         Subpart H--Definitions

65.70  Definitions.

                  Subpart I--Immigration Emergency Fund

65.80  General.
65.81  General definitions.
65.82  Procedure for requesting a Presidential determination of an 
          immigration emergency.
65.83  Assistance required by the Attorney General.
65.84  Procedures for the Attorney General when seeking State or local 
          assistance.
65.85  Procedures for State or local governments applying for funding.

    Authority: The Comprehensive Crime Control Act of 1984, Title II, 
Chap. VI, Div. I, Subdiv. B, Emergency Federal Law Enforcement 
Assistance, Pub. L. 98-473, 98 Stat. 1837, Oct. 12, 1984 (42 U.S.C. 
10501 et seq.); 8 U.S.C. 1101 note; Sec. 610, Pub. L. 102-140, 105 Stat. 
832.

    Source: 50 FR 51340, Dec. 16, 1985, unless otherwise noted.



                     Subpart A--Eligible Applicants



Sec. 65.1  General.

    This subject describes who may apply for emergency Federal law 
enforcement assistance under the Justice Assistance Act of 1984.



Sec. 65.2  State Government.

    In the event that a law enforcement emergency exists throughout a 
state or part of a state, a state (on behalf of itself or a local unit 
of government) may submit an application to the Attorney General, for 
emergency Federal law enforcement assistance. This aplication is to be 
submitted by the chief executive officer of the state, in writing, on 
Standard Form 424, and in accordance with these regulations.



           Subpart B--Allocation of Funds and Other Assistance



Sec. 65.10  Fund availability.

    For the previous fiscal year (FY `85), $800,000 was appropriated for 
emergency Federal law enforcement assistance for the entire country. In 
FY '86, $1.5 million has been requested. The FY '86 request has not yet 
been appropriated and is not currently available. The form and extent of 
assistance provided will be determined by the nature and scope of the 
emergency presented; but, in any event, no fund award may exceed the 
amount ultimately appropriated.



Sec. 65.11  Limitations on fund and other assistance use.

    (a) Land acquisition. No funds shall be used for the purpose of land 
acquisition.
    (b) Non-supplantation. No funds shall be used to supplant state or 
local funds that would otherwise be made available for such purposes.
    (c) Civil justice. No funds or other assistance shall be used with 
respect to civil justice matters except to the extent that such civil 
justice matters bear directly and substantially upon criminal justice 
matters or are inextricably intertwined with criminal justice matters.

[[Page 163]]

    (d) Federal law enforcement personnel. Nothing in the enabling 
legislation authorizes the use of Federal law enforcement personnel to 
investigate violations of criminal law other than violations with 
respect to which investigation is authorized by other provisions of law. 
(section 609O(a), of the Act).
    (e) Direction, supervision, control. Nothing in the enabling 
legislation shall be construed to authorize the Attorney General or the 
Federal law enforcement community to exercise any direction, 
supervision, or control over any police force or other criminal justice 
agency of an applicant for Federal law enforcement assistance. (section 
609O(b), of the Act).



Sec. 65.12  Other assistance.

    In accordance with the purposes and limitations of this subdivision, 
members of the Federal law enforcement community may provide needed 
assistance in the form of equipment, training, intelligence information, 
and personnel. The application may include requests for assistance of 
this nature.



   Subpart C--Purpose of Emergency Federal Law Enforcement Assistance



Sec. 65.20  General.

    The purpose of the Act is to assist state and/or local units of 
government which are experiencing law enforcement emergencies to respond 
to those emergencies through the provision of Federal law enforcement 
assistance. The authority and responsibility for implementation of this 
section is vested in the Attorney General of the United States.



Sec. 65.21  Purpose of assistance.

    The purpose of emergency Federal law enforcement assistance is to 
provide necessary assistance to (and through) a state government to 
provide an adequate response to an uncommon situation which requires law 
enforcement, which is or threatens to become of serious or epidemic 
proportions, and with respect to which state and local resources are 
inadequate to protect the lives and property of citizens, or to enforce 
the criminal law.



Sec. 65.22  Exclusions.

    Excluded from the situations for which this assistance is intended 
are:
    (a) The perceived need for planning or other activities related to 
crowd control for general public safety projects; and,
    (b) A situation requiring the enforcement of laws associated with 
scheduled public events, including political conventions and sports 
events.



                  Subpart D--Application for Assistance



Sec. 65.30  General.

    The Act requires that applications be submitted in writing, by the 
chief executive officer of a state, on Standard Form 424, in accordance 
with these regulations.



Sec. 65.31  Application content.

    The Act identifies six factors which the Attorney General will 
consider in approving or disapproving an application, and includes 
administrative requirements to ensure appropriate use of Federal 
assistance. Therefore, each application must be in writing and must 
include the following:
    (a) Problem. A description of the nature and extent of the law 
enforcement emergency, including the specific identification and 
description of the political and geographical subdivision(s) wherein the 
emergency exists;
    (b) Cause. A description of the situation or extraordinary 
circumstances which produced such emergency;
    (c) Resources. A description of the state and local criminal justice 
resources available to address the emergency, and a discussion of why 
and to what degree they are insufficient;
    (d) Assistance requested. A specific statement of the funds, 
equipment, training, intelligence information, or personnel requested, 
and a description of their intended use;
    (e) Other assistance. The identification of any other assistance the 
state or appropriate unit of government has received, or could receive, 
under any provision of the Act; and,
    (f) Other requirements. Assurance of compliance with other 
requirements of the Act, detailed in other parts of these

[[Page 164]]

regulations, including: Nonsupplantation; nondiscrimination; 
confidentiality of information; prohibition against land acquisition; 
recordkeeping and audit; limitation on civil justice matters.



            Subpart E--Submission and Review of Applications



Sec. 65.40  General.

    This subpart describes the process and criteria for the Attorney 
General's review and approval or disapproval of state applications. The 
original application, on Standard Form 424, signed by the chief 
executive officer of the state should be submitted directly to the 
Attorney General, U.S. Department of Justice, Washington, DC 20503. One 
copy of the application should be sent to the Director, Bureau of 
Justice Assistance, Office of Justice Programs, U.S. Department of 
Justice, Washington, DC 20531.

[67 FR 7270, Feb. 19, 2002]



Sec. 65.41  Review of State applications.

    (a) Review criteria. The Act provides the basis for review and 
approval or disapproval of state applications. Federal law enforcement 
assistance may be provided if such assistance is necessary to provide an 
adequate response to a law enforcement emergency. In determining whether 
to approve or disapprove an application for assistance under this 
section, the Attorney General shall consider:
    (1) The nature and extent of such emergency throughout a state or in 
any part of a state;
    (2) The situation or extraordinary circumstances which produced such 
emergency;
    (3) The availability of state and local criminal justice resources 
to resolve the problem;
    (4) The cost associated with the increased Federal presence;
    (5) The need to avoid unnecessary Federal involvement and 
intervention in matters primarily of state and local concern; and,
    (6) Any assistance which the state or other appropriate unit of 
government has received, or could receive, under any provision of title 
I of the Omnibus Crime Control and Safe Streets Act of 1968.
    (b) Review process. (1) The Attorney General shall consult with the 
Assistant Attorney General, Office of Justice Programs, and the 
Director, Bureau of Justice Assistance, on requests for grant 
assistance.
    (2) All requests for assistance of the Federal law enforcement 
community (e.g., equipment, training, information, or personnel) shall 
be reviewed by the Attorney General in consultation with appropriate 
members of the Federal law enforcement community, including the United 
States Attorney(s) in the affected District(s). Such requests will be 
subject to statutory restrictions, including section 609O on Federal 
agency activities.
    (3) The Attorney General will approve or disapprove each 
application, submitted in accordance with these regulations, no later 
than ten (10) days after receipt.



                   Subpart F--Additional Requirements



Sec. 65.50  General.

    This subpart sets forth additional requirements under the Justice 
Assistance Act. Applicants for assistance must assure compliance with 
each of these requirements.



Sec. 65.51  Recordkeeping.

    (a) The state must assure that it adheres to the recordkeeping 
requirements enumerated in OMB Circulars, Number A-102 and Number A-128. 
This requirement extends to participating units of local government, in 
that they are viewed as the state's subgrantees.
    (b) The Attorney General and the Comptroller of the United States 
shall have access, for the purpose of audit and examination, to any 
books, documents, and records of recipients of Federal law enforcement 
assistance provided under this subdivision which, in the opinion of the 
Attorney General or the Comptroller General, are related to the receipt 
or use of such assistance.



Sec. 65.52  Civil rights.

    The Act provides that ``no person in any state shall on the grounds 
of race, color, religion, national origin, or sex

[[Page 165]]

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.'' 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.



Sec. 65.53  Confidentiality of information.

    Section 812 of title I of the Omnibus Crime Control and Safe Streets 
Act of 1968 (as amended and implemented by 28 CFR part 20) shall apply 
with respect to information, including criminal history information and 
criminal intelligence systems operating with the support of Federal law 
enforcement assistance.



                      Subpart G--Repayment of Funds



Sec. 65.60  Repayment of funds.

    (a) If Federal law enforcement assistance provided under this 
subdivision is used by the recipient of such assistance in violation of 
these regulations, or for any purpose other than the purpose for which 
it is provided, then such recipient shall promptly repay to the Attorney 
General an amount equal to the value of such assistance.
    (b) The Attorney General may bring a civil action in an appropriate 
United States District Court to recover any amount authorized to be 
repaid under law.



                         Subpart H--Definitions



Sec. 65.70  Definitions.

    (a) Law enforcement emergency. The term law enforcement emergency is 
defined by the Act as an uncommon situation which requires law 
enforcement, which is or threatens to become of serious or epidemic 
proportions, and with respect to which state and local resources are 
inadequate to protect the lives and property of citizens, or to enforce 
the criminal law. The Act specifically excludes the following situations 
when defining ``law enforcement emergency'':
    (1) The perceived need for planning or other activities related to 
crowd control for general public safety projects; and,
    (2) A situation requiring the enforcement of laws associated with 
scheduled public events, including political convention and sports 
events.
    (b) Federal law enforcement assistance. The term Federal law 
enforcement assistance is defined by the Act to mean funds, equipment, 
training, intelligence information, and personnel.
    (c) Federal law enforcement community. The term Federal law 
enforcement community is defined by the Act as the heads of the 
following departments or agencies:
    (1) Federal Bureau of Investigation;
    (2) Drug Enforcement Administration;
    (3) Criminal Division of the Department of Justice;
    (4) Internal Revenue Service;
    (5) Customs Service;
    (6) Immigration and Naturalization Service;
    (7) U.S. Marshals Service;
    (8) National Park Service;
    (9) U.S. Postal Service;
    (10) Secret Service;
    (11) U.S. Coast Guard;
    (12) Bureau of Alcohol, Tobacco, and Firearms; and,
    (13) Other Federal agencies with specific statutory authority to 
investigate violations of Federal criminal law.
    (d) State. The term state is defined by the Act as 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, or the Commonwealth of the Northern Mariana 
Islands.



                  Subpart I--Immigration Emergency Fund

    Source: Order No. 1892-94, 59 FR 30522, June 14, 1994, unless 
otherwise noted.

[[Page 166]]



Sec. 65.80  General.

    The regulations of this subpart set forth procedures for 
implementing section 404(b) of the Immigration and Nationality Act 
(``INA''), 8 U.S.C. 1101 note, by providing for Presidential 
determinations of the existence of an immigration emergency, and for 
payments from the Immigration Emergency Fund or other funding available 
for such purposes, to State and local governments for assistance 
provided in meeting an immigration emergency. The regulations of this 
subpart also establish procedures by which the Attorney General may draw 
upon the Immigration Emergency Fund, without a Presidential 
determination that an immigration emergency exists, to provide funding 
to State and local governments for assistance provided as required by 
the Attorney General in certain specified circumstances.

[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 
2601-2002, 67 FR 48359, July 24, 2002]



Sec. 65.81  General definitions.

    As used in this part:
    Assistance means any actions taken by a State or local government 
directly relating to aiding the Attorney General in the administration 
of the immigration laws of the United States and in meeting urgent 
demands arising from the presence of aliens in the State or local 
government's jurisdiction, when such actions are taken to assist in 
meeting an immigration emergency or under any of the circumstances 
specified in section 404(b)(2)(A) of the INA. Assistance may include, 
but need not be limited to, the provision of large shelter facilities 
for the housing and screening of aliens, and, in connection with these 
activities, the provision of such basic necessities as food, water 
clothing, and health care.
    Immigration emergency means an actual or imminent influx of aliens 
which either is of such magnitude or exhibits such other characteristics 
that effective administration of the immigration laws of the United 
States is beyond the existing capabilities of the Immigration and 
Naturalization Service (``INS'') in the affected area or areas. 
Characteristics of an influx of aliens, other than magnitude, which may 
be considered in determining whether an immigration emergency exists 
include: the likelihood of continued growth in the magnitude of the 
influx; an apparent connection between the influx and increases in 
criminal activity; the actual or imminent imposition of unusual and 
overwhelming demands on law enforcement agencies; and other similar 
characteristics.
    Other circumstances means a situation that, as determined by the 
Attorney General, requires the resources of a State or local government 
to ensure the proper administration of the immigration laws of the 
United States or to meet urgent demands arising from the presence of 
aliens in a State or local government's jurisdiction.



Sec. 65.82  Procedure for requesting a Presidential determination of an immigration emergency.

    (a) The President may make a determination concerning the existence 
of an immigration emergency after review of a request from either the 
Attorney General of the United States or the chief executive of a State 
or local government. Such a request shall include a description of the 
facts believed to constitute an immigration emergency and the types of 
assistance needed to meet that emergency. Except when a request is made 
by the Attorney General, the requestor shall file the original 
application with the Office of the President and shall file copies of 
the application with the Attorney General and with the Commissioner of 
INS.
    (b) If the President determines that an immigration emergency 
exists, the President shall certify that fact to the Judiciary 
Committees of the House of Representatives and of the Senate.



Sec. 65.83  Assistance required by the Attorney General.

    The Attorney General may request assistance from a State or local 
government in the administration of the immigration laws of the United 
States or in meeting urgent demands where the need for assistance arises 
because of the presence of aliens in that State or local jurisdiction, 
and may provide funding to a State or local government relating to such 
assistance from the

[[Page 167]]

Immigration Emergency Fund or other funding available for such purposes, 
without a Presidential determination of an immigration emergency, in any 
of the following circumstances:
    (a) An INS district director certifies to the Commissioner of INS, 
who shall, in turn, certify to the Attorney General, that the number of 
asylum applications filed in that INS district during the relevant 
calendar quarter exceeds by at least 1,000 the number of such 
applications filed in that district during the preceding calendar 
quarter. For purposes of this paragraph, providing parole at a point of 
entry in a district shall be deemed to constitute an application for 
asylum in the district.
    (b) The Attorney General determines that there exist circumstances 
involving the administration of the immigration laws of the United 
States that endanger the lives, property, safety, or welfare of the 
residents of a State or locality.
    (c) The Attorney General determines that there exist any other 
circumstances, as defined in Sec. 65.81 of this subpart, such that it is 
appropriate to seek assistance from a State or local government in 
administering the immigration laws of the United States or in meeting 
urgent demands arising from the presence of aliens in a State or local 
jurisdiction.
    (d)(1) If, in making a determination pursuant to paragraph (b) or 
(c) of this section, the Attorney General also determines that the 
situation involves an actual or imminent mass influx of aliens arriving 
off the coast or near a land border of the United States and presents 
urgent circumstances requiring an immediate Federal response, the 
Attorney General will formally declare that a mass influx of aliens is 
imminent or occurring. The determination that a mass influx of aliens is 
imminent or occurring will be based on the factors set forth in the 
definitions contained in Sec. 65.81 of this subpart. The Attorney 
General will determine and define the time period that encompasses a 
mass influx of aliens by declaring when such an event begins and when it 
ends. The Attorney General will initially define the geographic 
boundaries where the mass influx of aliens is imminent or occurring.
    (2) Based on evolving developments in the scope of the event, the 
Commissioner of the INS may, as necessary, amend and redefine the 
geographic area defined by the Attorney General to expand or decrease 
the boundaries. This authority shall not be further delegated.
    (3) The Attorney General, pursuant to section 103(a)(8) of the INA, 
8 U.S.C. 1103(a)(8), may authorize any State or local law enforcement 
officer to perform or exercise any of the powers, privileges, or duties 
conferred or imposed by the Act, or regulations issued thereunder, upon 
officers or employees of the Service. Such authorization must be with 
the consent of the head of the department, agency, or establishment 
under whose jurisdiction the officer is serving.
    (4) Authorization for State or local law enforcement officers to 
exercise Federal immigration law enforcement authority for transporting 
or guarding aliens in custody may be exercised as necessary beyond the 
defined geographic boundaries where the mass influx of aliens is 
imminent or occurring. Otherwise, Federal immigration law enforcement 
authority to be exercised by State or local law enforcement officers 
will be authorized only within the defined geographic boundaries where 
the mass influx of aliens is imminent or occurring.
    (5) State or local law enforcement officers will be authorized to 
exercise Federal immigration law enforcement authority only during the 
time period prescribed by the Attorney General in conjunction with the 
initiation and termination of a declared mass influx of aliens.

[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 
2601-2002, 67 FR 48360, July 24, 2002]



Sec. 65.84   Procedures for the Attorney General when seeking State or local assistance.

    (a)(1) When the Attorney General determines to seek assistance from 
a State or local government under Sec. 65.83 of this subpart, or when 
the President has determined that an immigration emergency exists, the 
Attorney General shall negotiate the terms and conditions of that 
assistance with the

[[Page 168]]

State or local government. The Attorney General shall then execute a 
written agreement with appropriate State or local officials, which sets 
forth the terms and conditions of the assistance, including funding. 
Such written agreements can be reimbursement agreements, grants, or 
cooperative agreements.
    (2) The Commissioner may execute written contingency agreements 
regarding assistance under Sec. 65.83(d) of this subpart in advance of 
the Attorney General's determination pursuant to that section. However, 
such advance agreements shall not authorize State or local law 
enforcement officers to perform any functions of Service officers or 
employees under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), until 
the Attorney General has made the necessary determinations and 
authorizes such performance. Any such advance agreements shall contain 
precise activation procedures.
    (3) Written agreements regarding assistance under Sec. 65.83(d) of 
this subpart, including contingency agreements, shall include the 
following minimum requirements:
    (i) A statement of the powers, privileges, or duties that State or 
local law enforcement officers will be authorized to exercise and the 
conditions under which they may be exercised;
    (ii) A statement of the types of assistance by State or local law 
enforcement officers for which the Attorney General shall be responsible 
for reimbursing the relevant parties in accordance with the procedures 
set forth in paragraph (b) of this section;
    (iii) A statement that the relevant State or local law enforcement 
officers are not authorized to exercise any functions of Service 
officers or employees under section 103(a)(8) of the INA, 8 U.S.C. 
1103(a)(8), until the Attorney General has made a determination pursuant 
to that section and authorizes such performance;
    (iv) A requirement that State or local law enforcement officers 
cannot exercise any authorized functions of Service officers or 
employees under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), until 
they have successfully completed and been certified in a Service-
prescribed course of instruction in basic immigration law, immigration 
law enforcement fundamentals and procedures, civil rights law, and 
sensitivity and cultural awareness issues;
    (v) A description of the duration of the written agreement, and of 
the authority the Attorney General will confer upon State or local law 
enforcement officers pursuant to section 103(a)(8) of the INA, 8 U.S.C. 
1103(a)(8), along with a provision for amending, terminating, or 
extending the duration of the written agreement, or for terminating or 
amending the authority to be conferred pursuant to section 103(a)(8) of 
the INA, 8 U.S.C. 1103(a)(8);
    (vi) A requirement that the exercise of any Service officer 
functions by State or local law enforcement officers pursuant to section 
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), be at the direction of the 
Service;
    (vii) A requirement that any State or local law enforcement officer 
performing Service officer or employee functions pursuant to section 
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), must adhere to the policies 
and standards set forth during the training, including applicable 
immigration law enforcement standards and procedures, civil rights law, 
and sensitivity and cultural awareness issues;
    (viii) A statement that the authority to perform Service officer or 
employee functions pursuant to section 103(a)(8) of the INA, 8 U.S.C. 
1103(a)(8), does not abrogate or abridge constitutional or civil rights 
protections;
    (ix) A requirement that a complaint reporting and resolution 
procedure for allegations of misconduct or wrongdoing by State or local 
officers designated, or activities undertaken, pursuant to section 
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), be in place;
    (x) A requirement that a mechanism to record and monitor complaints 
regarding the immigration enforcement activities of State or local law 
enforcement officers authorized to enforce immigration laws be in place;
    (xi) A listing by position (title and name when available) of the 
Service officers authorized to provide operational direction to State or 
local law enforcement officers assisting in a Federal response pursuant 
to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8);

[[Page 169]]

    (xii) A requirement that a State or local law enforcement agency 
maintain records of operational expenditures incurred as a result of 
supporting the Federal response to a mass influx of aliens;
    (xiii) Provisions concerning State or local law enforcement officer 
use of Federal property or facilities, if any;
    (xiv) A requirement that any department, agency, or establishment 
whose State or local law enforcement officer is performing Service 
officer or employee functions shall cooperate fully in any Federal 
investigation related to allegations of misconduct or wrongdoing in 
conjunction with such functions, or to the written agreement; and
    (xv) A procedure by which the appropriate law enforcement agency, 
department, or establishment will be notified that the Attorney General 
has made a determination under section 103(a)(8) of the INA, 8 U.S.C. 
1103(a)(8), to authorize State or local law enforcement officers to 
exercise Federal immigration enforcement authority under the provisions 
of the respective agreements.
    (4) The Attorney General may abbreviate or waive any of the training 
required pursuant to a written agreement regarding assistance under 
Sec. 65.83(d) of this chapter, including contingency agreements, in the 
event that the number of State or local law enforcement officers 
available to respond in an expeditious manner to urgent and quickly 
developing events during a declared mass influx of aliens is 
insufficient to protect public safety, public health, or national 
security. Such officers still would be required to adhere to applicable 
policies and standards of the Immigration and Naturalization Service. 
The decision to abbreviate or waive these training requirements is at 
the sole discretion of the Attorney General.
    (b) A reimbursement agreement shall contain the procedures under 
which the State or local government is to obtain reimbursement for its 
assistance. A reimbursement agreement shall include the title of the 
official to whom claims are to be submitted, the intervals at which 
claims are to be submitted, a description of the supporting 
documentation to be submitted, and any limitations on the total amount 
of reimbursement that will be provided. Grants and cooperative 
agreements shall be made and administered in accordance with the uniform 
procedures in part 66 of this title.
    (c) In exigent circumstances, the Attorney General may agree to 
provide funding to a State or local government without a written 
agreement. A reimbursement agreement, grant, or cooperative agreement 
conforming to the specifications in this section shall be reduced to 
writing as soon as practicable.

[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 
2601-2002, 67 FR 48360, July 24, 2002; Order No. 2659-2003, 68 FR 8822, 
Feb. 26, 2003]



Sec. 65.85  Procedures for State or local governments applying for funding.

    (a) In the event that the chief executive of a State or local 
government determines that any of the circumstances set forth in 
Sec. 65.83 of this subpart exists, he or she may pursue the procedures 
in this section to submit to the Attorney General an application for a 
reimbursement agreement, grant, or cooperative agreement as described in 
Sec. 65.84 of this subpart.
    (b) The Department strongly encourages chief executives of States 
and local governments, if possible, to consult informally with the 
Attorney General and the Commissioner of INS prior to submitting a 
formal application. This informal consultation is intended to facilitate 
discussion of the nature of the assistance to be provided by the State 
or local government, the requirements of the Attorney General, if any, 
for such assistance, the costs associated with such assistance, and the 
Department's preliminary views on the appropriateness of the proposed 
funding.
    (c) The chief executive of a State or local government shall submit 
an application in writing to the Attorney General, and shall file a copy 
with the Commissioner of INS. The application shall set forth in detail 
the following information:
    (1) The name of the jurisdiction requesting reimbursement;
    (2) All facts supporting the application;

[[Page 170]]

    (3) The nature of the assistance which the State or local government 
has provided or will provide, as required by the Attorney General, for 
which funding is requested;
    (4) The dollar amount of the funding sought;
    (5) A justification for the amount of funding being sought;
    (6) The expected duration of the conditions requiring State or local 
assistance;
    (7) Information about whether funding is sought for past costs or 
for future costs;
    (8) The name, address, and telephone number of a contact person from 
the requesting jurisdiction.
    (d) If the Attorney General determines that the assistance for which 
funding is sought under paragraph (c) of this section is appropriate 
under the standards of this subpart, the Attorney General may enter into 
a reimbursement or cooperative agreement or may make a grant in the same 
manner as if the assistance had been requested by the Attorney General 
as described under Sec. 65.84 of this subpart.
    (e) The Attorney General will consider all applications from State 
or local governments until the Attorney General has obligated funding 
available for such purposes as determined by the Attorney General. The 
Attorney General will make a decision with respect to any application 
submitted under this section that contains the information described in 
paragraph (c) of this section within 15 calendar days of such 
application.
    (f) In exigent circumstances, the Attorney General may waive the 
requirements of this section concerning the form, contents, and order of 
consideration of applications, including the requirement in paragraph 
(c) of this section that applications be submitted in writing.

[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 
2601-2002, 67 FR 48361, July 24, 2002]



PART 66--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                           Subpart A--General

Sec.
66.1  Purpose and scope of this part.
66.2  Scope of subpart.
66.3  Definitions.
66.4  Applicability.
66.5  Effect on other issuances.
66.6  Additions and exceptions.

                    Subpart B--Pre-Award Requirements

66.10  Forms for applying for grants.
66.11  State plans.
66.12  Special grant or subgrant conditions for ``high-risk'' grantees.

                   Subpart C--Post-Award Requirements

                        Financial Administration

66.20  Standards for financial management systems.
66.21  Payment.
66.22  Allowable costs.
66.23  Period of availability of funds.
66.24  Matching or cost sharing.
66.25  Program income.
66.26  Non-Federal audit.

                    Changes, Property, and Subawards

66.30  Changes.
66.31  Real property.
66.32  Equipment.
66.33  Supplies.
66.34  Copyrights.
66.35  Subawards to debarred and suspended parties.
66.36  Procurement.
66.37  Subgrants.

              Reports, Records, Retention, and Enforcement

66.40  Monitoring and reporting program performance.
66.41  Financial reporting.
66.42  Retention and access requirements for records.
66.43  Enforcement.
66.44  Termination for convenience.

                 Subpart D--After-The-Grant Requirements

66.50  Closeout.
66.51  Later disallowances and adjustments.
66.52  Collection of amounts due.

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Subpart E--Entitlement [Reserved]

    Authority: 18 U.S.C. 4042, 4351-4353; 42 U.S.C. 3711 et seq., 5601 
et seq., 10601 et seq.

    Source: Order No. 1252-88, 53 FR 8068 and 8087, Mar. 11, 1988, 
unless otherwise noted.



                           Subpart A--General



Sec. 66.1  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 66.2  Scope of subpart.

    This subpart contains general rules pertaining to this part and 
procedures for control of exceptions from this part.



Sec. 66.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subgrantees, 
subcontractors, and other payees; and
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required, such as annuities, insurance 
claims, and other benefit payments.
    Accrued income means the sum of:
    (1) Earnings during a given period from services performed by the 
grantee and goods and other tangible property delivered to purchasers, 
and
    (2) Amounts becoming owed to the grantee for which no current 
services or performance is required by the grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from ``programmatic'' 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means:
    (1) With respect to a grant, the Federal agency, and
    (2) With respect to a subgrant, the party that awarded the subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for ``grant'' and 
``subgrant'' in this section and except where qualified by ``Federal'') 
a procurement contract under a grant or subgrant, and means a 
procurement subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means:
    (1) For nonconstruction grants, the SF-269 ``Financial Status 
Report'' (or other equivalent report);

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    (2) For construction grants, the SF-271 ``Outlay Report and Request 
for Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the U.S. Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of

[[Page 173]]

the United States, or any agency or instrumentality of a State exclusive 
of local governments. The term does not include any public and Indian 
housing agency under United States Housing Act of 1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of ``grant'' in this part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than 
``equipment'' as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. ``Termination'' does not include:
    (1) Withdrawal of funds awarded on the basis of the grantee's 
underestimate of the unobligated balance in a prior period;
    (2) Withdrawal of the unobligated balance as of the expiration of a 
grant;
    (3) Refusal to extend a grant or award additional funds, to make a 
competing or noncompeting continuation, renewal, extension, or 
supplemental award; or
    (4) Voiding of a grant upon determination that the award was 
obtained fraudulently, or was otherwise illegal or invalid from 
inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 66.4  Applicability.

    (a) General. Subparts A-D of this part apply to all grants and 
subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 66.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under title V, subtitle D, chapter 2, 
Section 583--the Secretary's discretionary grant program) and titles I-
III of the Job

[[Page 174]]

Training Partnership Act of 1982 and under the Public Health Services 
Act (section 1921), Alcohol and Drug Abuse Treatment and Rehabilitation 
Block Grant and part C of title V, Mental Health Service for the 
Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 66.4(a) (3) through (8) are subject to subpart E.



Sec. 66.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 66.6.



Sec. 66.6  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                    Subpart B--Pre-Award Requirements



Sec. 66.10  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require

[[Page 175]]

applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 66.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive Order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec. 66.12  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;

[[Page 176]]

    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



                   Subpart C--Post-Award Requirements

                        Financial Administration



Sec. 66.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by

[[Page 177]]

their subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.



Sec. 66.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 66.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the

[[Page 178]]

opportunities for minority business enterprises, grantees and 
subgrantees are encouraged to use minority banks (a bank which is owned 
at least 50 percent by minority group members). A list of minority owned 
banks can be obtained from the Minority Business Development Agency, 
Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec. 66.22  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OBM Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------



Sec. 66.23  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 66.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.

[[Page 179]]

    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 66.25, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 66.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services

[[Page 180]]

are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 66.22, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.



Sec. 66.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of

[[Page 181]]

the grant agreement during the grant period. ``During the grant period'' 
is the time between the effective date of the award and the ending date 
of the award reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 66.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Secs. 66.31 and 
66.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.



Sec. 66.26  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing

[[Page 182]]

goods and services to State and local governments are not required to 
have a single audit performed. State and local governments should use 
their own procedures to ensure that the contractor has complied with 
laws and regulations affecting the expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 66.36 
shall be followed.

[Order No. 1252-88, 53 FR 8068 and 8087, Mar. 11, 1988, as amended at 62 
FR 45939 and 45942, Aug. 29, 1997]

                    Changes, Property, and Subawards



Sec. 66.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 66.22) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements apply to all grants and 
subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform

[[Page 183]]

activities which are central to the purposes of the award. This approval 
requirement is in addition to the approval requirements of Sec. 66.36 
but does not apply to the procurement of equipment, supplies, and 
general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 66.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 66.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec. 66.32  Equipment.

    (a) The Omnibus Crime Control and Safe Streets Act of 1968, as 
amended, Public Law 90-351, section 808, requires that the title to all 
equipment and supplies purchased with section 403 or 1302 (block or 
formula funds) shall vest in the criminal justice agency or nonprofit 
organization that purchased the property if it certifies to the State 
office described in section 408 or 1308 that it will use the property 
for criminal justice purposes. If such certification is not made, title 
to the property shall

[[Page 184]]

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.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 66.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:

[[Page 185]]

    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow 66.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.

[53 FR 8068 and 8087, Mar. 11, 1988, as amended by Order No. 1252-88, 53 
FR 8068, Mar. 11, 1988; 53 FR 12099, Apr. 12, 1988]



Sec. 66.33  Supplies.

    (a) The Omnibus Crime Control and Safe Streets Act of 1968, as 
amended, Public Law 90-351, section 808, requires that the title to all 
equipment and supplies purchased with section 403 or 1302 (block or 
formula funds) shall vest in the criminal justice agency or nonprofit 
organization that purchased the property if it certifies to the State 
office described in section 408 or 1308 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.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.

[53 FR 8068 and 8087, Mar. 11, 1988, as amended by Order No. 1252-88, 53 
FR 8069, Mar. 11, 1988]



Sec. 66.34  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 66.35  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''



Sec. 66.36  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect

[[Page 186]]

applicable State and local laws and regulations, provided that the 
procurements conform to applicable Federal law and the standards 
identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative

[[Page 187]]

issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 66.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified

[[Page 188]]

sources to ensure maximum open and free competition. Also, grantees and 
subgrantees will not preclude potential bidders from qualifying during 
the solicitation period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used, price or rate quotations shall be 
obtained from an adequate number of qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec. 66.36(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.

[[Page 189]]

    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs

[[Page 190]]

incurred or cost estimates included in negotiated prices are consistent 
with Federal cost principles (see Sec. 66.22). Grantees may reference 
their own cost principles that comply with the applicable Federal cost 
principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the

[[Page 191]]

contractor's obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[Order No. 1252-88, 53 FR 8068 and 8067, Mar. 11, 1988, as amended by 
Order No. 1961-95, 60 FR 19639, 19642, Apr. 19, 1995]



Sec. 66.37  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local

[[Page 192]]

and Indian tribal governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 66.42 is placed 
in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 66.10;
    (2) Section 66.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 66.21; and
    (4) Section 66.50.

              Reports, Records, Retention, and Enforcement



Sec. 66.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.

[[Page 193]]

    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec. 66.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 66.41(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.

[[Page 194]]

    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 66.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs--(1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. Federal agencies may, 
however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec. 66.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 66.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 66.41(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the

[[Page 195]]

advances will be requested on the form specified in Sec. 66.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 66.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 66.41(b)(2).



Sec. 66.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 66.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then

[[Page 196]]

the 3-year retention period for the proposal plan, or computation and 
its supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records Unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec. 66.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 66.35).



Sec. 66.44  Termination for convenience.

    Except as provided in Sec. 66.43 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective

[[Page 197]]

date, and in the case of partial termination, the portion to be 
terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec. 66.43 
or paragraph (a) of this section.



                 Subpart D--After-The-Grant Requirements



Sec. 66.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable.)
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report. In accordance with 
Sec. 66.32(f), a grantee must submit an inventory of all federally owned 
property (as distinct from property acquired with grant funds) for which 
it is accountable and request disposition instructions from the Federal 
agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec. 66.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 66.42;
    (d) Property management requirements in Secs. 66.31 and 66.32; and
    (e) Audit requirements in Sec. 66.26.



Sec. 66.52  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR Ch. II). The date 
from which interest is computed is not extended by litigation or the 
filing of any form of appeal.

Subpart E--Entitlement [Reserved]



PART 67--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents




                           Subpart A--General

Sec.
67.100  Purpose.
67.105  Definitions.

[[Page 198]]

67.110  Coverage.
67.115  Policy.

                       Subpart B--Effect of Action

67.200  Debarment or suspension.
67.205  Ineligible persons.
67.210  Voluntary exclusion.
67.215  Exception provision.
67.220  Continuation of covered transactions.
67.225  Failure to adhere to restrictions.

                          Subpart C--Debarment

67.300  General.
67.305  Causes for debarment.
67.310  Procedures.
67.311  Investigation and referral.
67.312  Notice of proposed debarment.
67.313  Opportunity to contest proposed debarment.
67.314  Debarring official's decision.
67.315  Settlement and voluntary exclusion.
67.320  Period of debarment.
67.325  Scope of debarment.

                          Subpart D--Suspension

67.400  General.
67.405  Causes for suspension.
67.410  Procedures.
67.411  Notice of suspension.
67.412  Opportunity to contest suspension.
67.413  Suspending official's decision.
67.415  Period of suspension.
67.420  Scope of suspension.

      Subpart E--Responsibilities of GSA, Agency, and Participants

67.500  GSA responsibilities.
67.505  Department of Justice responsibilities.
67.510  Participants' responsibilities.

          Subpart F--Drug-Free Workplace Requirements (Grants)

67.600  Purpose.
67.605  Definitions.
67.610  Coverage.
67.615  Grounds for suspension of payments, suspension or termination of 
          grants, or suspension or debarment.
67.620  Effect of violation.
67.625  Exception provision.
67.630  Certification requirements and procedures.
67.635  Reporting of and employee sanctions for convictions of criminal 
          drug offenses.

Appendix A to Part 67--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 67--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower Tier Covered 
          Transactions
Appendix C to Part 67--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: E.O. 12549; Sec. 5151-5160 of the Drug-Free Workplace Act 
of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.), 
Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3711, et 
seq. (as amended), Juvenile Justice and Delinquency Prevention Act of 
1974, 42 U.S.C. 5601, et seq. (as amended), Victims of Crime Act of 
1984, 42 U.S.C. 10601, et seq. (as amended); 18 U.S.C. 4042; and 18 
U.S.C. 4351-4353.

    Cross Reference: See also Office of Management and Budget notice 
published at 55 FR 21679, May 25, 1990.

    Source: 53 FR 19188 and 19204, May 26, 1988, unless otherwise noted.

    Editorial Note: Nomenclature changes affecting this part appear in 
Order No. 1271-88, 53 FR 19188, May 26, 1988, and at 60 FR 33036, June 
26, 1995.



                           Subpart A--General



Sec. 67.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by law, Executive departments and agencies shall participate 
in a governmentwide system for nonprocurement debarment and suspension. 
A person who is debarred or suspended shall be excluded from Federal 
financial and nonfinancial assistance and benefits under Federal 
programs and activities. Debarment or suspension of a participant in a 
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the 
guidelines promulgated by the Office of Management and Budget under 
section 6 of the E.O. by:
    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide 
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended 
participants, participants declared ineligible (see definition of 
``ineligible'' in Sec. 67.105), and participants who have voluntarily 
excluded themselves from participation in covered transactions;

[[Page 199]]

    (4) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective 
implementation and administration of the governmentwide system.
    (c) These regulations also implement Executive Order 12689 (3 CFR, 
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs all persons proposed for 
debarment, debarred or suspended under the Federal Acquisition 
Regulation, 48 CFR part 9, subpart 9.4; persons against which 
governmentwide exclusions have been entered under this part; and persons 
determined to be ineligible; and
    (2) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible 
participants and the effect of such listing, they do not prescribe 
policies and procedures governing declarations of ineligibility.

[Order No. 1972-95, 60 FR 33040, 33052, June 26, 1995]



Sec. 67.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable 
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or 
indirectly, either one controls or has the power to control the other, 
or, a third person controls or has the power to control both. Indicia of 
control include, but are not limited to: interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of employees, or a business entity organized 
following the suspension or debarment of a person which has the same or 
similar management, ownership, or principal employees as the suspended, 
debarred, ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense 
agency or other agency of the executive branch, excluding the 
independent regulatory agencies.
    Civil judgment. The disposition of a civil action by any court of 
competent jurisdiction, whether entered by verdict, decision, 
settlement, stipulation, or otherwise creating a civil liability for the 
wrongful acts complained of; or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
    Conviction. A judgment or conviction of a criminal offense by any 
court of competent jurisdiction, whether entered upon a verdict or a 
plea, including a plea of nolo contendere.
    Debarment. An action taken by a debarring official in accordance 
with these regulations to exclude a person from participating in covered 
transactions. A person so excluded is ``debarred.''
    Debarring official. An official authorized to impose debarment. The 
debarring official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    Indictment. Indictment for a criminal offense. An information or 
other filing by competent authority charging a criminal offense shall be 
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement 
programs pursuant to a determination of ineligibility under statutory, 
executive order, or regulatory authority, other than Executive Order 
12549 and its agency implementing regulations; for exemple, excluded 
pursuant to the Davis-Bacon Act and its implementing regulations, the 
equal employment opportunity acts and executive orders, or the 
environmental protection acts and executive orders. A person is 
ineligible where the determination of ineligibility affects such 
person's eligibility to participate in more than one covered 
transaction.
    Legal proceedings. Any criminal proceeding or any civil judicial 
proceeding to which the Federal Government or a State or local 
government or quasi-governmental authority is a party. The

[[Page 200]]

term includes appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs. A list compiled, maintained and distributed by the General 
Services Administration (GSA) containing the names and other information 
about persons who have been debarred, suspended, or voluntarily excluded 
under Executive Orders 12549 and 12689 and these regulations or 48 CFR 
part 9, subpart 9.4, persons who have been proposed for debarment under 
48 CFR part 9, subpart 9.4, and those persons who have been determined 
to be ineligible.
    Notice. A written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, its agent for service 
of process, or any partner, officer, director, owner, or joint venturer 
of the party. Notice, if undeliverable, shall be considered to have been 
received by the addressee five days after being properly sent to the 
last address known by the agency.
    Participant. Any person who submits a proposal for, enters into, or 
reasonably may be expected to enter into a covered transaction. This 
term also includes any person who acts on behalf of or is authorized to 
commit a participant in a covered transaction as an agent or 
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit 
of government or legal entity, however organized, except: foreign 
governments or foreign governmental entities, public international 
organizations, foreign government owned (in whole or in part) or 
controlled entities, and entities consisting wholly or partially of 
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared 
with that opposing it, leads to the conclusion that the fact at issue is 
more probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other 
person within a participant with primary management or supervisory 
responsibilities; or a person who has a critical influence on or 
substantive control over a covered transaction, whether or not employed 
by the participant. Persons who have a critical influence on or 
substantive control over a covered transaction are:
    (1) Principal investigators.
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to consider or similar communication by or on behalf of a 
person seeking to participate or to receive a benefit, directly or 
indirectly, in or under a covered transaction.
    Respondent. A person against whom a debarment or suspension action 
has been initiated.
    State. Any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, any territory or possession 
of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers that instrumentality to be an agency of the 
State government.
    Suspending official. An official authorized to impose suspension. 
The suspending official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    Suspension. An action taken by a suspending official in accordance 
with these regulations that immediately excludes a person from 
participating in covered transactions for a temporary period, pending 
completion of an investigation and such legal, debarment, or Program 
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded 
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of 
nonparticipation or limited participation in covered transactions 
assumed by a person pursuant to the terms of a settlement.

[53 FR 19188 and 19204, May 26, 1988, as amended by Order No. 1972-95, 
60 FR 33040, 33052, June 26, 1995]



Sec. 67.110  Coverage.

    (a) These regulations apply to all persons who have participated, 
are currently participating or may reasonably

[[Page 201]]

be expected to participate in transactions under Federal nonprocurement 
programs. For purposes of these regulations such transactions will be 
referred to as ``covered transactions.''
    (1) Covered transaction. For purposes of these regulations, a 
covered transaction is a primary covered transaction or a lower tier 
covered transaction. Covered transactions at any tier need not involve 
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2) 
of this section, a primary covered transaction is any nonprocurement 
transaction between an agency and a person, regardless of type, 
including: grants, cooperative agreements, scholarships, fellowships, 
contracts of assistance, loans, loan guarantees, subsidies, insurance, 
payments for specified use, donation agreements and any other 
nonprocurement transactions between a Federal agency and a person. 
Primary covered transactions also include those transactions specially 
designated by the U.S. Department of Housing and Urban Development in 
such agency's regulations governing debarment and suspension.
    (ii) Lower tier covered transaction. A lower tier covered 
transaction is:
    (A) Any transaction between a participant and a person other than a 
procurement contract for goods or services, regardless of type, under a 
primary covered transaction.
    (B) Any procurement contract for goods or services between a 
participant and a person, regardless of type, expected to equal or 
exceed the Federal procurement small purchase threshold fixed at 10 
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary 
covered transaction.
    (C) Any procurement contract for goods or services between a 
participant and a person under a covered transaction, regardless of 
amount, under which that person will have a critical influence on or 
substantive control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, entities 
consisting wholly or partially of foreign governments or foreign 
governmental entities;
    (iii) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (iv) Federal employment;
    (v) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental 
operations; and
    (vii) Other transactions where the application of these regulations 
would be prohibited by law.
    (b) Relationship to other sections. This section describes the types 
of transactions to which a debarment or suspension under the regulations 
will apply. Subpart B, ``Effect of Action,'' Sec. 67.200, ``Debarment or 
suspension,'' sets forth the consequences of a debarment or suspension. 
Those consequences would obtain only with respect to participants and 
principals in the covered transactions and activities described in 
Sec. 67.110(a). Sections 67.325, ``Scope of debarment,'' and 67.420, 
``Scope of suspension,'' govern the extent to which a specific 
participant or organizational elements of a participant would be 
automatically included within a debarment or suspension action, and the 
conditions under which affiliates or persons associated with a 
participant may also be brought within the scope of the action.
    (c) Relationship to Federal procurement activities. In accordance 
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, 
suspension, proposed debarment or other governmentwide exclusion 
initiated under the Federal Acquisition Regulation (FAR) on or

[[Page 202]]

after August 25, 1995 shall be recognized by and effective for Executive 
Branch agencies and participants as an exclusion under this regulation. 
Similarly, any debarment, suspension or other governmentwide exclusion 
initiated under this regulation on or after August 25, 1995, shall be 
recognized by and effective for those agencies as a debarment or 
suspension under the FAR.

[53 FR 19188 and 19204, May 26, 1988, as amended by Order No. 1972-95, 
60 FR 33041, 33052, June 26, 1995]



Sec. 67.115  Policy.

    (a) In order to protect the public interest, it is the policy of the 
Federal Government to conduct business only with responsible persons. 
Debarment and suspension are discretionary actions that, taken in 
accordance with Executive Order 12549 and these regulations, are 
appropriate means to implement this policy.
    (b) Debarment and suspension are serious actions which shall be used 
only in the public interest and for the Federal Government's protection 
and not for purposes of punishment. Agencies may impose debarment or 
suspension for the causes and in accordance with the procedures set 
forth in these regulations.
    (c) When more than one agency has an interest in the proposed 
debarment or suspension of a person, consideration shall be given to 
designating one agency as the lead agency for making the decision. 
Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.



                       Subpart B--Effect of Action



Sec. 67.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by 
law, persons who are debarred or suspended shall be excluded from 
primary covered transactions as either participants or principals 
throughout the Executive Branch of the Federal Government for the period 
of their debarment, suspension, or the period they are proposed for 
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall 
enter into primary covered transactions with such excluded persons 
during such period, except as permitted pursuant to Sec. 67.215.
    (b) Lower tier covered transactions. Except to the extent prohibited 
by law, persons who have been proposed for debarment under 48 CFR part 
9, subpart 9.4, debarred or suspended shall be excluded from 
participating as either participants or principals in all lower tier 
covered transactions (see Sec. 67.110(a)(1)(ii)) for the period of their 
exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's 
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (2) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, and 
entities consisting wholly or partially of foreign governments or 
foreign governmental entities;
    (3) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental 
operations; and
    (7) Other transactions where the application of these regulations 
would be prohibited by law.

[Order No. 1972-95, 60 FR 33041, 33052, June 26, 1995]



Sec. 67.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 67.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec. 67.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 67.315 are 
excluded in accordance with the terms of their settlements. Department 
of Justice shall, and participants may, contact the

[[Page 203]]

original action agency to ascertain the extent of the exclusion.



Sec. 67.215  Exception provision.

    The Department of Justice may grant an exception permitting a 
debarred, suspended, or voluntarily excluded person, or a person 
proposed for debarment under 48 CFR part 9, subpart 9.4, to participate 
in a particular covered transaction upon a written determination by the 
agency head or an authorized designee stating the reason(s) for 
deviating from the Presidential policy established by Executive Order 
12549 and Sec. 67.200. However, in accordance with the President's 
stated intention in the Executive Order, exceptions shall be granted 
only infrequently. Exceptions shall be reported in accordance with 
Sec. 67.505(a).

[Order No. 1972-95, 60 FR 33041, 33052, June 26, 1995]



Sec. 67.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment 
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or 
voluntary exclusion of any person by an agency, agencies and 
participants may continue covered transactions in existence at the time 
the person was debarred, suspended, proposed for debarment under 48 CFR 
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A 
decision as to the type of termination action, if any, to be taken 
should be made only after thorough review to ensure the propriety of the 
proposed action.
    (b) Agencies and participants shall not renew or extend covered 
transactions (other than no-cost time extensions) with any person who is 
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 
9.4, ineligible or voluntary excluded, except as provided in 
Sec. 67.215.

[Order No. 1972-95, 60 FR 33041, 33052, June 26, 1995]



Sec. 67.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 67.215 or Sec. 67.220, a 
participant shall not knowingly do business under a covered transaction 
with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered 
transaction.
    (b) Violation of the restriction under paragraph (a) of this section 
may result in disallowance of costs, annulment or termination of award, 
issuance of a stop work order, debarment or suspension, or other 
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, proposed for debarment under 48 
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the 
covered transaction (See appendix B of these regulations), unless it 
knows that the certification is erroneous. An agency has the burden of 
proof that a participant did knowingly do business with a person that 
filed an erroneous certification.

[Order No. 1972-95, 60 FR 33041, 33052, June 26, 1995]



                          Subpart C--Debarment



Sec. 67.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 67.305, using procedures established in Secs. 67.310 through 
67.314. The existence of a cause for debarment, however, does not 
necessarily require that the person be debarred; the seriousness of the 
person's acts or omissions and any mitigating factors shall be 
considered in making any debarment decision.



Sec. 67.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Secs. 67.300 through 67.314 for:
    (a) Conviction of or civil judgment for:
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;

[[Page 204]]

    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, 
receiving stolen property, making false claims, or obstruction of 
justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects the 
present responsibility of a person.
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as:
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction.
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, the effective date of these regulations, or a 
procurement debarment by any Federal agency taken pursuant to 48 CFR 
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible, 
or voluntarily excluded person, in connection with a covered 
transaction, except as permitted in Sec. 67.215 or Sec. 67.220;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 67.315 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of any requirement of subpart F of this part, relating 
to providing a drug-free workplace, as set forth in Sec. 67.615 of this 
part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.

[53 FR 19188 and 19204, May 26, 1988, as amended at 54 FR 4950 and 4959, 
Jan. 31, 1989; 55 FR 21699, May 25, 1990]



Sec. 67.310  Procedures.

    Department of Justice shall process debarment actions as informally 
as practicable, consistent with the principles of fundamental fairness, 
using the procedures in Secs. 67 .311 through 67 .314.



Sec. 67.311  Investigation and referral.

    Information concerning the existence of a cause for debarment from 
any source shall be promptly reported, investigated, and referred, when 
appropriate, to the debarring official for consideration. After 
consideration, the debarring official may issue a notice of proposed 
debarment.



Sec. 67.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:
    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to 
put the respondent on notice of the conduct or transaction(s) upon which 
it is based;
    (c) Of the cause(s) relied upon under Sec. 67.305 for proposing 
debarment;
    (d) Of the provisions of Secs. 67.311 through 67.314, and any other 
Department of Justice procedures, if applicable, governing debarment 
decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 67.313  Opportunity to contest proposed debarment.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of proposed debarment, the respondent may submit, in person, in 
writing, or through a representative, information and argument in 
opposition to the proposed debarment.

[[Page 205]]

    (b) Additional proceedings as to disputed material facts. (1) In 
actions not based upon a conviction or civil judgment, if the debarring 
official finds that the respondent's submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents.
    (2) A transcribed record of any additional proceedings shall be made 
available at cost to the respondent, upon request, unless the respondent 
and the agency, by mutual agreement, waive the requirement for a 
transcript.



Sec. 67.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a 
conviction or civil judgment, or in which there is no genuine dispute 
over material facts, the debarring official shall make a decision on the 
basis of all the information in the administrative record, including any 
submission made by the respondent. The decision shall be made within 45 
days after receipt of any information and argument submitted by the 
respondent, unless the debarring official extends this period for good 
cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The debarring 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any such findings, in whole or in part, only after specifically 
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (c)(1) Standard of proof. In any debarment action, the cause for 
debarment must be established by a preponderance of the evidence. Where 
the proposed debarment is based upon a conviction or civil judgment, the 
standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing 
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the respondent shall be given 
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and
    (iv) Advising that the debarment is effective for covered 
transactions throughout the executive branch of the Federal Government 
unless an agency head or an authorized designee makes the determination 
referred to in Sec. 67.215.
    (2) If the debarring official decides not to impose debarment, the 
respondent shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to a subsequent 
imposition of debarment by any other agency.



Sec. 67.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, Department of 
Justice may, at any time, settle a debarment or suspension action.
    (b) If a participant and the agency agree to a voluntary exclusion 
of the participant, such voluntary exclusion shall be entered on the 
Nonprocurement List (see subpart E).



Sec. 67.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). If a suspension precedes a debarment, the 
suspension period shall be considered in determining the debarment 
period.
    (1) Debarment for causes other than those related to a violation of 
the requirements of subpart F of this part generally should not exceed 
three years. Where circumstances warrant, a longer period of debarment 
may be imposed.

[[Page 206]]

    (2) In the case of a debarment for a violation of the requirements 
of subpart F of this part (see 67.305(c)(5)), the period of debarment 
shall not exceed five years.
    (b) The debarring official may extend an existing debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest. However, a debarment may not 
be extended solely on the basis of the facts and circumstances upon 
which the initial debarment action was based. If debarment for an 
additional period is determined to be necessary, the procedures of 
Secs. 67.311 through 67.314 shall be followed to extend the debarment.
    (c) The respondent may request the debarring official to reverse the 
debarment decision or to reduce the period or scope of debarment. Such a 
request shall be in writing and supported by documentation. The 
debarring official may grant such a request for reasons including, but 
not limited to:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or civil judgment upon which the 
debarment was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.

[53 FR 19188 and 19204, May 26, 1988, as amended at 54 FR 4950 and 4959, 
Jan. 31, 1989; 55 FR 21699, May 25, 1990]



Sec. 67.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these 
regulations constitutes debarment of all its divisions and other 
organizational elements from all covered transactions, unless the 
debarment decision is limited by its terms to one or more specifically 
identified individuals, divisions or other organizational elements or to 
specific types of transactions.
    (2) The debarment action may include any affiliate of the 
participant that is specifically named and given notice of the proposed 
debarment and an opportunity to respond (see Secs. 67.311 through 
67.314).
    (b) Imputing conduct. For purposes of determining the scope of 
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or 
other seriously improper conduct of any officer, director, shareholder, 
partner, employee, or other individual associated with a participant may 
be imputed to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval, or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct shall be evidence of such knowledge, approval, or 
acquiescence.
    (2) Conduct imputed to individuals associated with participant. The 
fraudulent, criminal, or other seriously improper conduct of a 
participant may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the participant 
who participated in, knew of, or had reason to know of the participant's 
conduct.
    (3) Conduct of one participant imputed to other participants in a 
joint venture. The fraudulent, criminal, or other seriously improper 
conduct of one participant in a joint venture, grant pursuant to a joint 
application, or similar arrangement may be imputed to other participants 
if the conduct occurred for or on behalf of the joint venture, grant 
pursuant to a joint application, or similar arrangement may be imputed 
to other participants if the conduct occurred for or on behalf of the 
joint venture, grant pursuant to a joint application, or similar 
arrangement or with the knowledge, approval, or acquiescence of these 
participants. Acceptance of the benefits derived from the conduct shall 
be evidence of such knowledge, approval, or acquiescence.



                          Subpart D--Suspension



Sec. 67.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 67.405 using procedures established in Secs. 67.410 
through 67.413.
    (b) Suspension is a serious action to be imposed only when:

[[Page 207]]

    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 67.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the agency should 
consider how much information is available, how credible it is given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 67.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Secs. 67.400 through 67.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in 
Sec. 67.305(a); or
    (2) That a cause for debarment under Sec. 67.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 67.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source shall be promptly reported, 
investigated, and referred, when appropriate, to the suspending official 
for consideration. After consideration, the suspending official may 
issue a notice of suspension.
    (b) Decisionmaking process. Department of Justice shall process 
suspension actions as informally as practicable, consistent with 
principles of fundamental fairness, using the procedures in Secs. 67.411 
through 67.413.



Sec. 67.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously reflecting on the propriety of further Federal Government 
dealings with the respondent;
    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 67.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Secs. 67.411 through 67.413 and any other 
Department of Justice procedures, if applicable, governing suspension 
decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 67.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the agency, by mutual agreement, waive the 
requirement for a transcript.



Sec. 67.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 67.320(c) for reasons for reducing the period or scope 
of debarment)

[[Page 208]]

or may leave it in force. However, a decision to modify or terminate the 
suspension shall be without prejudice to the subsequent imposition of 
suspension by any other agency or debarment by any agency. The decision 
shall be rendered in accordance with the following provisions:
    (a) No additional proceedings necessary. In actions: based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.



Sec. 67.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings, unless terminated sooner by the 
suspending official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless an Assistant Attorney General or United States 
Attorney requests its extension in writing, in which case it may be 
extended for an additional six months. In no event may a suspension 
extend beyond 18 months, unless such proceedings have been initiated 
within that period.
    (c) The suspending official shall notify the Department of Justice 
of an impending termination of a suspension, at least 30 days before the 
12-month period expires, to give that Department an opportunity to 
request an extension.



Sec. 67.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 67.325), except that the procedures of Secs. 67.410 through 
67.413 shall be used in imposing a suspension.



      Subpart E--Responsibilities of GSA, Agency, and Participants



Sec. 67.500  GSA responsibilities.

    (a) In accordance with the OMB guidelines, GSA shall compile, 
maintain, and distribute a list of all persons who have been debarred, 
suspended, or voluntarily excluded by agencies under Executive Order 
12549 and these regulations, and those who have been determined to be 
ineligible.
    (b) At a minimum, this list shall indicate:
    (1) The names and addresses of all debarred, suspended, ineligible, 
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for each listing; and
    (6) The agency and name and telephone number of the agency point of 
contact for the action.

[[Page 209]]



Sec. 67.505  Department of Justice responsibilities.

    (a) The agency shall provide GSA with current information concerning 
debarments, suspension, determinations of ineligibility, and voluntary 
exclusions it has taken. Until February 18, 1989, the agency shall also 
provide GSA and OMB with information concerning all transactions in 
which Department of Justice has granted exceptions under Sec. 67.215 
permitting participation by debarred, suspended, or voluntarily excluded 
persons.
    (b) Unless an alternative schedule is agreed to by GSA, the agency 
shall advise GSA of the information set forth in Sec. 67.500(b) and of 
the exceptions granted under Sec. 67.215 within five working days after 
taking such actions.
    (c) The agency shall direct inquiries concerning listed persons to 
the agency that took the action.
    (d) Agency officials shall check the Nonprocurement List before 
entering covered transactions to determine whether a participant in a 
primary transaction is debarred, suspended, ineligible, or voluntarily 
excluded (Tel. ).
    (e) Agency officials shall check the Nonprocurement List before 
approving principals or lower tier participants where agency approval of 
the principal or lower tier participant is required under the terms of 
the transaction, to determine whether such principals or participants 
are debarred, suspended, ineligible, or voluntarily excluded.



Sec. 67.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions. 
Each participant shall submit the certification in appendix A to this 
part for it and its principals at the time the participant submits its 
proposal in connection with a primary covered transaction, except that 
States need only complete such certification as to their principals. 
Participants may decide the method and frequency by which they determine 
the eligibility of their principals. In addition, each participant may, 
but is not required to, check the Nonprocurement List for its principals 
(Tel. ). Adverse information on the certification will not 
necessarily result in denial of participation. However, the 
certification, and any additional information pertaining to the 
certification submitted by the participant, shall be considered in the 
administration of covered transactions.
    (b) Certification by participants in lower tier covered 
transactions. (1) Each participant shall require participants in lower 
tier covered transactions to include the certification in appendix B to 
this part for it and its principals in any proposal submitted in 
connection with such lower tier covered transactions.
    (2) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, ineligible, or voluntarily 
excluded from the covered transaction by any Federal agency, unless it 
knows that the certification is erroneous. Participants may decide the 
method and frequency by which they determine the eligiblity of their 
principals. In addition, a participant may, but is not required to, 
check the Nonprocurement List for its principals and for participants 
(Tel. ).
    (c) Changed circumstances regarding certification. A participant 
shall provide immediate written notice to Department of Justice if at 
any time the participant learns that its certification was erroneous 
when submitted or has become erroneous by reason of changed 
circumstances. Participants in lower tier covered transactions shall 
provide the same updated notice to the participant to which it submitted 
its proposals.



          Subpart F--Drug-Free Workplace Requirements (Grants)

    Source: Order No. 1416-90, 55 FR 21688, 21696, May 25, 1990, unless 
otherwise noted.



Sec. 67.600  Purpose.

    (a) The purpose of this subpart is to carry out the Drug-Free 
Workplace Act of 1988 by requiring that--
    (1) A grantee, other than an individual, shall certify to the agency 
that it will provide a drug-free workplace;
    (2) A grantee who is an individual shall certify to the agency that, 
as a condition of the grant, he or she will

[[Page 210]]

not engage in the unlawful manufacture, distribution, dispensing, 
possession or use of a controlled substance in conducting any activity 
with the grant.
    (b) Requirements implementing the Drug-Free Workplace Act of 1988 
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, 
and 52.2.



Sec. 67.605  Definitions.

    (a) Except as amended in this section, the definitions of 
Sec. 67.105 apply to this subpart.
    (b) For purposes of this subpart--
    (1) Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15;
    (2) Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    (3) Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    (4) Drug-free workplace means a site for the performance of work 
done in connection with a specific grant at which employees of the 
grantee are prohibited from engaging in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance;
    (5) Employee means the employee of a grantee directly engaged in the 
performance of work under the grant, including:
    (i) All direct charge employees;
    (ii) All indirect charge employees, unless their impact or 
involvement is insignificant to the performance of the grant; and,
    (iii) Temporary personnel and consultants who are directly engaged 
in the performance of work under the grant and who are on the grantee's 
payroll.

This definition does not include workers not on the payroll of the 
grantee (e.g., volunteers, even if used to meet a matching requirement; 
consultants or independent contractors not on the payroll; or employees 
of subrecipients or subcontractors in covered workplaces);
    (6) Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency;
    (7) Grant means an award of financial assistance, including a 
cooperative agreement, in the form of money, or property in lieu of 
money, by a Federal agency directly to a grantee. The term grant 
includes block grant and entitlement grant programs, whether or not 
exempted from coverage under the grants management government-wide 
common rule on uniform administrative requirements for grants and 
cooperative agreements. The term does not include technical assistance 
that provides services instead of money, or other assistance in the form 
of loans, loan guarantees, interest subsidies, insurance, or direct 
appropriations; or any veterans' benefits to individuals, i.e., any 
benefit to veterans, their families, or survivors by virtue of the 
service of a veteran in the Armed Forces of the United States;
    (8) Grantee means a person who applies for or receives a grant 
directly from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers the instrumentality to be an agency of the 
State government.



Sec. 67.610  Coverage.

    (a) This subpart applies to any grantee of the agency.

[[Page 211]]

    (b) This subpart applies to any grant, except where application of 
this subpart would be inconsistent with the international obligations of 
the United States or the laws or regulations of a foreign government. A 
determination of such inconsistency may be made only by the agency head 
or his/her designee.
    (c) The provisions of subparts A, B, C, D and E of this part apply 
to matters covered by this subpart, except where specifically modified 
by this subpart. In the event of any conflict between provisions of this 
subpart and other provisions of this part, the provisions of this 
subpart are deemed to control with respect to the implementation of 
drug-free workplace requirements concerning grants.



Sec. 67.615  Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of this 
subpart if the agency head or his or her official designee determines, 
in writing, that--
    (a) The grantee has made a false certification under Sec. 67.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry 
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the 
certification (Alternate I to appendix C) or
    (2) Such a number of employees of the grantee have been convicted of 
violations of criminal drug statutes for violations occurring in the 
workplace as to indicate that the grantee has failed to make a good 
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry 
out its requirements (Alternate II to appendix C); or
    (2) The grantee is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any grant activity.



Sec. 67.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in 
Sec. 67.615, and in accordance with applicable law, the grantee shall be 
subject to one or more of the following actions:
    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of 
this part.
    (b) Upon issuance of any final decision under this part requiring 
debarment of a grantee, the debarred grantee shall be ineligible for 
award of any grant from any Federal agency for a period specified in the 
decision, not to exceed five years (see Sec. 67.320(a)(2) of this part).



Sec. 67.625  Exception provision.

    The agency head may waive with respect to a particular grant, in 
writing, a suspension of payments under a grant, suspension or 
termination of a grant, or suspension or debarment of a grantee if the 
agency head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



Sec. 67.630  Certification requirements and procedures.

    (a)(1) As a prior condition of being awarded a grant, each grantee 
shall make the appropriate certification to the Federal agency providing 
the grant, as provided in appendix C to this part.
    (2) Grantees are not required to make a certification in order to 
continue receiving funds under a grant awarded before March 18, 1989, or 
under a no-cost time extension of such a grant. However, the grantee 
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
    (b) Except as provided in this section, all grantees shall make the 
required certification for each grant. For mandatory formula grants and 
entitlements that have no application process, grantees shall submit a 
one-time

[[Page 212]]

certification in order to continue receiving awards.
    (c) A grantee that is a State may elect to make one certification in 
each Federal fiscal year. States that previously submitted an annual 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. Except as provided in paragraph (d) of this 
section, this certification shall cover all grants to all State agencies 
from any Federal agency. The State shall retain the original of this 
statewide certification in its Governor's office and, prior to grant 
award, shall ensure that a copy is submitted individually with respect 
to each grant, unless the Federal agency has designated a central 
location for submission.
    (d)(1) The Governor of a State may exclude certain State agencies 
from the statewide certification and authorize these agencies to submit 
their own certifications to Federal agencies. The statewide 
certification shall name any State agencies so excluded.
    (2) A State agency to which the statewide certification does not 
apply, or a State agency in a State that does not have a statewide 
certification, may elect to make one certification in each Federal 
fiscal year. State agencies that previously submitted a State agency 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. The State agency shall retain the original of 
this State agency-wide certification in its central office and, prior to 
grant award, shall ensure that a copy is submitted individually with 
respect to each grant, unless the Federal agency designates a central 
location for submission.
    (3) When the work of a grant is done by more than one State agency, 
the certification of the State agency directly receiving the grant shall 
be deemed to certify compliance for all workplaces, including those 
located in other State agencies.
    (e)(1) For a grant of less than 30 days performance duration, 
grantees shall have this policy statement and program in place as soon 
as possible, but in any case by a date prior to the date on which 
performance is expected to be completed.
    (2) For a grant of 30 days or more performance duration, grantees 
shall have this policy statement and program in place within 30 days 
after award.
    (3) Where extraordinary circumstances warrant for a specific grant, 
the grant officer may determine a different date on which the policy 
statement and program shall be in place.



Sec. 67.635  Reporting of and employee sanctions for convictions of criminal drug offenses.

    (a) When a grantee other than an individual is notified that an 
employee has been convicted for a violation of a criminal drug statute 
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction, 
the grantee shall provide written notice, including the convicted 
employee's position title, to every grant officer, or other designee on 
whose grant activity the convicted employee was working, unless a 
Federal agency has designated a central point for the receipt of such 
notifications. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (2) Within 30 calendar days of receiving notice of the conviction, 
the grantee shall do the following with respect to the employee who was 
convicted.
    (i) Take appropriate personnel action against the employee, up to 
and including termination, consistent with requirements of the 
Rehabilitation Act of 1973, as amended; or
    (ii) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (b) A grantee who is an individual who is convicted for a violation 
of a criminal drug statute occurring during the conduct of any grant 
activity shall report the conviction, in writing, within 10 calendar 
days, to his or her Federal agency grant officer, or other designee, 
unless the Federal agency has designated a central point for the receipt 
of such notices. Notification shall include the identification number(s)

[[Page 213]]

for each of the Federal agency's affected grants.

(Approved by the Office of Management and Budget under control number 
0991-0002)

 Appendix A to Part 67--Certification Regarding Debarment, Suspension, 
     and Other Responsibility Matters--Primary Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or agency's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or agency 
determined to enter into this transaction. If it is later determined 
that the prospective primary participant knowingly rendered an erroneous 
certification, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or agency to which this proposal is 
submitted if at any time the prospective primary participant learns that 
its certification was erroneous when submitted or has become erroneous 
by reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definitions and Coverage 
sections of the rules implementing Executive Order 12549. You may 
contact the department or agency to which this proposal is being 
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency entering into this transaction.
    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility 
                  Matters--Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its 
knowledge and belief, that it and its principals:
    (a) Are not presently debarred, suspended, proposed for debarment, 
declared ineligible, or voluntarily excluded by any Federal department 
or agency;
    (b) Have not within a three-year period preceding this proposal been 
convicted of or had a civil judgment rendered against them

[[Page 214]]

for commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public (Federal, State 
or local) transaction or contract under a public transaction; violation 
of Federal or State antitrust statutes or commission of embezzlement, 
theft, forgery, bribery, falsification or destruction of records, making 
false statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or 
civilly charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses enumerated in paragraph (1)(b) of this 
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local) 
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify 
to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[Order No. 1972-95, 60 FR 33041, 33052, June 26, 1995]

 Appendix B to Part 67--Certification Regarding Debarment, Suspension, 
 Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal Government the department or 
agency with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or had become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and Coverage 
sections of rules implementing Executive Order 12549. You may contact 
the person to which this proposal is submitted for assistance in 
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include this clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion-Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from covered transactions, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.

    Certification Regarding Debarment, Suspension, Ineligibility an 
          Voluntary Exclusion--Lower Tier Covered Transactions

    (1) The prospective lower tier participant certifies, by submission 
of this proposal, that neither it nor its principals is presently 
debarred, suspended, proposed for debarment,

[[Page 215]]

declared ineligible, or voluntarily excluded from participation in this 
transaction by any Federal department or agency.
    (2) Where the prospective lower tier participant is unable to 
certify to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[Order No. 1972-95, 60 FR 33041, 33052, June 26, 1995]

   Appendix C to Part 67--Certification Regarding Drug-Free Workplace 
                              Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement, 
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of 
fact upon which reliance is placed when the agency awards the grant. If 
it is later determined that the grantee knowingly rendered a false 
certification, or otherwise violates the requirements of the Drug-Free 
Workplace Act, the agency, in addition to any other remedies available 
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals, 
need not be identified on the certification. If known, they may be 
identified in the grant application. If the grantee does not identify 
the workplaces at the time of application, or upon award, if there is no 
application, the grantee must keep the identity of the workplace(s) on 
file in its office and make the information available for Federal 
inspection. Failure to identify all known workplaces constitutes a 
violation of the grantee's drug-free workplace requirements.
    6. Workplace identifications must include the actual address of 
buildings (or parts of buildings) or other sites where work under the 
grant takes place. Categorical descriptions may be used (e.g., all 
vehicles of a mass transit authority or State highway department while 
in operation, State employees in each local unemployment office, 
performers in concert halls or radio studios).
    7. If the workplace identified to the agency changes during the 
performance of the grant, the grantee shall inform the agency of the 
change(s), if it previously identified the workplaces in question (see 
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and 
Debarment common rule and Drug-Free Workplace common rule apply to this 
certification. Grantees' attention is called, in particular, to the 
following definitions from these rules:
    Controlled substance means a controlled substance in Schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812) and as 
further defined by regulation (21 CFR 1308.11 through 1308.15);
    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the 
performance of work under a grant, including: (i) All direct charge 
employees; (ii) All indirect charge employees unless their impact or 
involvement is insignificant to the performance of the grant; and, (iii) 
Temporary personnel and consultants who are directly engaged in the 
performance of work under the grant and who are on the grantee's 
payroll. This definition does not include workers not on the payroll of 
the grantee (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the grantee's 
payroll; or employees of subrecipients or subcontractors in covered 
workplaces).

        Certification Regarding Drug-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

    A. The grantee certifies that it will or will continue to provide a 
drug-free workplace by:
    (a) Publishing a statement notifying employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in the grantee's workplace and 
specifying the actions that will be taken against employees for 
violation of such prohibition;
    (b) Establishing an ongoing drug-free awareness program to inform 
employees about--
    (1) The dangers of drug abuse in the workplace;
    (2) The grantee's policy of maintaining a drug-free workplace;
    (3) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (4) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;
    (c) Making it a requirement that each employee to be engaged in the 
performance of the grant be given a copy of the statement required by 
paragraph (a);

[[Page 216]]

    (d) Notifying the employee in the statement required by paragraph 
(a) that, as a condition of employment under the grant, the employee 
will--
    (1) Abide by the terms of the statement; and
    (2) Notify the employer in writing of his or her conviction for a 
violation of a criminal drug statute occurring in the workplace no later 
than five calendar days after such conviction;
    (e) Notifying the agency in writing, within ten calendar days after 
receiving notice under paragraph (d)(2) from an employee or otherwise 
receiving actual notice of such conviction. Employers of convicted 
employees must provide notice, including position title, to every grant 
officer or other designee on whose grant activity the convicted employee 
was working, unless the Federal agency has designated a central point 
for the receipt of such notices. Notice shall include the identification 
number(s) of each affected grant;
    (f) Taking one of the following actions, within 30 calendar days of 
receiving notice under paragraph (d)(2), with respect to any employee 
who is so convicted--
    (1) Taking appropriate personnel action against such an employee, up 
to and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973, as amended; or
    (2) Requiring such employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency;
    (g) Making a good faith effort to continue to maintain a drug-free 
workplace through implementation of paragraphs (a), (b), (c), (d), (e) 
and (f).
    B. The grantee may insert in the space provided below the site(s) 
for the performance of work done in connection with the specific grant:

Place of Performance (Street address, city, county, state, zip code)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

Check [squ] if there are workplaces on file that are not identified 
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or 
she will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any grant activity, he or she 
will report the conviction, in writing, within 10 calendar days of the 
conviction, to every grant officer or other designee, unless the Federal 
agency designates a central point for the receipt of such notices. When 
notice is made to such a central point, it shall include the 
identification number(s) of each affected grant.

[Order No. 1416-90, 55 FR 21690, 21696, May 25, 1990]



 PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF 
ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD--Table of Contents




Sec.
68.1  Scope of rules.
68.2  Definitions.
68.3  Service of complaint, notice of hearing, written orders, and 
          decisions.
68.4  Complaints regarding unfair immigration-related employment 
          practices.
68.5  Notice of date, time, and place of hearing.
68.6  Service and filing of documents.
68.7  Form of pleadings.
68.8  Time computations.
68.9  Responsive pleadings--answer.
68.10  Motion to dismiss for failure to state a claim upon which relief 
          can be granted.
68.11  Motions and requests.
68.12  Prehearing statements.
68.13  Conferences.
68.14  Consent findings or dismissal.
68.15  Intervenor in unfair immigration-related employment cases.
68.16  Consolidation of hearings.
68.17  Amicus curiae.
68.18  Discovery--general provisions.
68.19  Written interrogatories to parties.
68.20  Production of documents, things, and inspection of land.
68.21  Admissions.
68.22  Depositions.
68.23  Motion to compel response to discovery; sanctions.
68.24  Use of depositions at hearings.
68.25  Subpoenas.
68.26  Designation of Administrative Law Judge.
68.27  Continuances.
68.28  Authority of Administrative Law Judge.
68.29  Unavailability of Administrative Law Judge.
68.30  Disqualification.
68.31  Separation of functions.
68.32  Expedition.

[[Page 217]]

68.33  Participation of parties and representation.
68.34  Legal assistance.
68.35  Standards of conduct.
68.36  Ex parte communications.
68.37  Waiver of right to appear and failure to participate or to 
          appear.
68.38  Motion for summary decision.
68.39  Formal hearings.
68.40  Evidence.
68.41  Official notice.
68.42  In camera and protective orders.
68.43  Exhibits.
68.44  Records in other proceedings.
68.45  Designation of parts of documents.
68.46  Authenticity.
68.47  Stipulations.
68.48  Record of hearings.
68.49  Closing the record.
68.50  Receipt of documents after hearing.
68.51  Restricted access.
68.52  Final order of the Administrative Law Judge.
68.53  Review of an interlocutory order of an Administrative Law Judge 
          in cases arising under section 274A or 274C.
68.54  Administrative review of a final order of an Administrative Law 
          Judge in cases arising under section 274A or 274C.
68.55  Referral of cases arising under sections 274A or 274C to the 
          Attorney General for review.
68.56  Judicial review of a final agency order in cases arising under 
          section 274A or 274C.
68.57  Judicial review of the final agency order of an Administrative 
          Law Judge in cases arising under section 274B.
68.58  Filing of the official record.

    Authority: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and 
1324c.



Sec. 68.1  Scope of rules.

    The rules of practice in this part are applicable to adjudicatory 
proceedings before Administrative Law Judges of the Executive Office for 
Immigration Review, United States Department of Justice, with regard to 
unlawful employment cases under section 274A of the INA, unfair 
immigration-related employment practice cases under section 274B of the 
INA, and document fraud cases under section 274C of the INA. Such 
proceedings shall be conducted expeditiously, and the parties shall make 
every effort at each stage of a proceeding to avoid delay. To the extent 
that these rules may be inconsistent with a rule of special application 
as provided by statute, executive order, or regulation, the latter is 
controlling. The Federal Rules of Civil Procedure may be used as a 
general guideline in any situation not provided for or controlled by 
these rules, by the Administrative Procedure Act, or by any other 
applicable statute, executive order, or regulation.

[Order No. 2203-99, 64 FR 7073, Feb. 12, 1999]



Sec. 68.2  Definitions.

    For purposes of this part:
    Adjudicatory proceeding means an administrative judicial-type 
proceeding, before the Office of the Chief Administrative Hearing 
Officer, commencing with the filing of a complaint and leading to the 
formulation of a final agency order;
    Administrative Law Judge means an Administrative Law Judge appointed 
pursuant to the provisions of 5 U.S.C. 3105;
    Administrative Procedure Act means those provisions of the 
Administrative Procedure Act, as codified, which are contained in 5 
U.S.C. 551 through 559;
    Certification means a formal assertion in writing of the specified 
fact(s), signed by the person(s) making the certification and thereby 
attesting to the truth of the content of the writing, except as follows:
    (1) Certified court reporter means a person who has been deemed by 
an appropriate body to be qualified to transcribe or record testimony 
during formal legal proceedings,
    (2) Certified mail means a form of mail similar to registered mail 
by which sender may require return receipt from addressee, and
    (3) Certified copy means a copy of a document or record, signed by 
the officer to whose custody the original is entrusted, thereby 
attesting that the copy is a true copy;
    Certify means the act of executing a certification;
    Chief Administrative Hearing Officer or an official who has been 
designated to act as the Chief Administrative Hearing Officer, is the 
official who, under the Director, Executive Office for Immigration 
Review, generally administers the Administrative Law Judge program, 
exercises administrative supervision over Administrative Law Judges and 
others assigned to the Office of the Chief Administrative Hearing 
Officer, and who, in accordance

[[Page 218]]

with sections 274A(e)(7) and 274C(d)(4) of the INA, exercises 
discretionary authority to review the decisions and orders of 
Administrative Law Judges adjudicated under sections 274A and 274C of 
the INA;
    Complainant means the Immigration and Naturalization Service in 
cases arising under sections 274A and 274C of the INA. In cases arising 
under section 274B of the INA, ``complainant'' means the Special Counsel 
(as defined in this section), and also includes the person or entity who 
has filed a charge with the Special Counsel, or, in private actions, an 
individual or private organization;
    Complaint means the formal document initiating an adjudicatory 
proceeding;
    Consent order means any written document containing a specified 
remedy or other relief agreed to by all parties and entered as an order 
by the Administrative Law Judge;
    Debt Collection Improvement Act means the Debt Collection 
Improvement Act of 1996, Pub. L. 104-134, Title III, 110 Stat. 1321 
(1996);
    Decision means any findings of fact or conclusions of law by an 
Administrative Law Judge or the Chief Administrative Hearing Officer;
    Document fraud cases means cases involving allegations under section 
274C of the INA.
    Entry means the date the Administrative Law Judge, Chief 
Administrative Hearing Officer, or the Attorney General signs the order; 
Entry as used in section 274B(i)(1) of the INA means the date the 
Administrative Law Judge signs the order;
    Final agency order is an Administrative Law Judge's final order, in 
cases arising under sections 274A and 274C of the INA, that has not been 
modified, vacated, or remanded by the Chief Administrative Hearing 
Officer pursuant to Sec. 68.54, referred to the Attorney General for 
review pursuant to Sec. 68.55(a), or accepted by the Attorney General 
for review pursuant to Sec. 68.55(b)(3). Alternatively, if the Chief 
Administrative Hearing Officer modifies or vacates the final order 
pursuant to Sec. 68.54, the modification or vacation becomes the final 
agency order if it has not been referred to the Attorney General for 
review pursuant to Sec. 68.55(a) or accepted by the Attorney General for 
review pursuant to Sec. 68.55(b)(3). If the Attorney General enters an 
order that modifies or vacates either the Chief Administrative Hearing 
Officer's or the Administrative Law Judge's order, the Attorney 
General's order is the final agency order. In cases arising under 
section 274B of the INA, an Administrative Law Judge's final order is 
also the final agency order;
    Final order is an order by an Administrative Law Judge that disposes 
of a particular proceeding or a distinct portion of a proceeding, 
thereby concluding the jurisdiction of the Administrative Law Judge over 
that proceeding or portion thereof;
    Hearing means that part of a proceeding that involves the submission 
of evidence, either by oral presentation or written submission;
    Interlocutory order means an order that decides some point or 
matter, but is not a final order or a final decision of the whole 
controversy; it decides some intervening matter pertaining to the cause 
of action and requires further steps to be taken in order for the 
Administrative Law Judge to adjudicate the cause on the full merits;
    INA means the Immigration and Nationality Act of 1952, ch. 477, Pub. 
L. 82-414, 66 Stat. 163, as amended;
    Issued as used in section 274A(e)(8) and section 274C(d)(5) of the 
INA means the date on which an Administrative Law Judge's final order, 
the Chief Administrative Hearing Officer's order, or an adoption, 
modification, or vacation by the Attorney General becomes a final agency 
order;
    Motion means an oral or written request, made by a person or a 
party, for some action by an Administrative Law Judge;
    Order means a determination or mandate by an Administrative Law 
Judge, the Chief Administrative Hearing Officer, or the Attorney General 
that resolves some point or directs some action in the proceeding;
    Ordinary mail refers to the mail service provided by the United 
States Postal Service using only standard postage fees, exclusive of 
special systems, electronic transfers, and other means that

[[Page 219]]

have the effect of providing expedited service;
    Party includes all persons or entities named or admitted as a 
complainant, respondent, or intervenor in a proceeding; or any person 
filing a charge with the Special Counsel under section 274B of the INA, 
resulting in the filing of a complaint, concerning an unfair 
immigration-related employment practice;
    Pleading means the complaint, motions, the answer thereto, any 
supplement or amendment thereto, and reply that may be permitted to any 
answer, supplement, or amendment submitted to the Administrative Law 
Judge or, when no judge is assigned, the Chief Administrative Hearing 
Officer;
    Prohibition of indemnity bond cases means cases involving 
allegations under section 274A(g) of the INA;
    Respondent means a party to an adjudicatory proceeding, other than a 
complainant, against whom findings may be made or who may be required to 
provide relief or take remedial action;
    Special Counsel means the Special Counsel for Unfair Immigration-
Related Employment Practices appointed by the President under section 
274B of the INA, or his or her designee or in the case of a vacancy in 
the Office of Special Counsel, the officer or employee designated by the 
President who shall act as Special Counsel during such vacancy;
    Unfair immigration-related employment practice cases means cases 
involving allegations under section 274B of the INA;
    Unlawful employment cases means cases involving allegations under 
section 274A of the INA, other than prohibition of indemnity bond cases.

[Order No. 2203-99, 64 FR 7073, Feb. 12, 1999, as amended by Order No. 
2255-99, 64 FR 49660, Sept. 14, 1999]



Sec. 68.3  Service of complaint, notice of hearing, written orders, and decisions.

    (a) Service of complaint, notice of hearing, written orders, and 
decisions shall be made by the Office of the Chief Administrative 
Hearing Officer or the Administrative Law Judge to whom the case is 
assigned either:
    (1) By delivering a copy to the individual party, partner of a 
party, officer of a corporate party, registered agent for service of 
process of a corporate party, or attorney or representative of record of 
a party;
    (2) By leaving a copy at the principal office, place of business, or 
residence of a party; or
    (3) By mailing to the last known address of such individual, 
partner, officer, or attorney or representative of record.
    (b) Service of complaint and notice of hearing is complete upon 
receipt by addressee.
    (c) In circumstances where the Office of the Chief Administrative 
Hearing Officer or the Administrative Law Judge encounters difficulty 
with perfecting service, the Chief Administrative Hearing Officer or the 
Administrative Law Judge may direct that a party execute service of 
process.

[Order No. 2203-99, 64 FR 7074, Feb. 12, 1999]



Sec. 68.4  Complaints regarding unfair immigration-related employment practices.

    (a) Generally. An individual must file a charge with the Special 
Counsel within one hundred and eighty (180) days of the date of the 
alleged unfair immigration-related employment practice.
    (b) The Special Counsel shall, within one hundred and twenty (120) 
days of the date of receipt of the charge:
    (1) Determine whether there is a reasonable cause to believe the 
charge is true and whether to bring a complaint respecting the charge 
with the Chief Administrative Hearing Officer within the 120-day period; 
or,
    (2) Notify the party within the 120-day period that the Special 
Counsel will not file a complaint with the Chief Administrative Hearing 
Officer within the 120-day period.
    (c) The charging individual may file a complaint directly with the 
Chief Administrative Hearing Officer within ninety (90) days after the 
date of receipt of notice that the Special Counsel will not be filing a 
complaint within the 120-day period. However, the Special Counsel's 
failure to file a complaint within the 120-day period will not affect 
the right of the Special

[[Page 220]]

Counsel to investigate the charge or bring a complaint within the 90-day 
period.

[Order No. 1534-91, 56 FR 50053, Oct. 3, 1991]



Sec. 68.5  Notice of date, time, and place of hearing.

    (a) Generally. The Administrative Law Judge to whom the case is 
assigned shall notify the parties of a date, time, and place set for 
hearing thereon or for a prehearing conference, or both within thirty 
(30) days of receipt of respondent's answer to the complaint.
    (b) Place of hearing. In section 274B cases, pursuant to section 554 
of title 5, United States Code, due regard shall be given to the 
convenience of the parties and the witnesses in selecting a place for a 
hearing. Sections 274A(e)(3)(B) and 274C(d)(2)(B) of the INA require 
that hearings be held at the nearest practicable place to the place 
where the person or entity resides or to the place where the alleged 
violation occurred.

[54 FR 48596, Nov. 24, 1989. Redesignated and amended by Order No. 1534-
91, 56 FR 50053, 50054, Oct. 3, 1991; Order No. 1635-92, 57 FR 57672, 
Dec. 7, 1992]



Sec. 68.6  Service and filing of documents.

    (a) Generally. An original and four copies of the complaint shall be 
filed with the Chief Administrative Hearing Officer. An original and two 
copies of all other pleadings, including any attachments, shall be filed 
with the Chief Administrative Hearing Officer by the parties presenting 
the pleadings until an Administrative Law Judge is assigned to a case. 
Thereafter, all pleadings shall be delivered or mailed for filing to the 
Administrative Law Judge assigned to the case, and shall be accompanied 
by a certification indicating service to all parties of record. When a 
party is represented by an attorney, service shall be made upon the 
attorney. Except as required by Sec. 68.54(c) and paragraph (c) of this 
section, service of any document upon any party may be made by personal 
delivery or by mailing a copy to the last known address. The person 
serving the document shall certify to the manner and date of service.
    (b) Discovery. The parties shall not file requests for discovery, 
answers, or responses thereto with the Administrative Law Judge. The 
Administrative Law Judge may, however, upon motion of a party or on his 
or her own initiative, order that such requests for discovery, answers, 
or responses thereto be filed.
    (c) Where a time limit is imposed by statute, regulation, or order. 
Pleadings and briefs may be filed by facsimile with either an 
Administrative Law Judge or, in the case of a complaint, with the Chief 
Administrative Hearing Officer, only to toll the running of a time 
limit. All original signed pleadings and other documents must be 
forwarded concurrently with the transmission of the facsimile. Any party 
filing documents by facsimile must include in the certification of 
service a certification that service on the opposing party has also been 
made by facsimile or by same-day hand delivery, or, if service by 
facsimile or same-day hand delivery cannot be made, a certification that 
the document has been served instead by overnight delivery service. In 
the case of requests for administrative review, briefs or other filings 
relating to review by the Chief Administrative Hearing Officer, filing, 
or service shall be made using the procedure set forth in this paragraph 
pursuant to Sec. 68.54(c).

[Order No. 2203-99, 64 FR 7074, Feb. 12, 1999]



Sec. 68.7  Form of pleadings.

    (a) Every pleading shall contain a caption setting forth the 
statutory provision under which the proceeding is instituted, the title 
of the proceeding, the docket number assigned by the Office of the Chief 
Administrative Hearing Officer, the names of all parties (or, after the 
complaint, at least the first party named as a complainant or 
respondent), and a designation of the type of pleading (e.g., complaint, 
motion to dismiss). The pleading shall be signed, dated, and shall 
contain the address and telephone number of the party or person 
representing the party. The pleading shall be on standard size (8\1/
2\x11) paper and should also be typewritten when possible.

[[Page 221]]

    (b) A complaint filed pursuant to section 274A, 274B, or 274C of the 
INA shall contain the following:
    (1) A clear and concise statement of facts, upon which an assertion 
of jurisdiction is predicated;
    (2) The names and addresses of the respondents, agents, and/or their 
representatives who have been alleged to have committed the violation;
    (3) The alleged violations of law, with a clear and concise 
statement of facts for each violation alleged to have occurred; and,
    (4) A short statement containing the remedies and/or sanctions 
sought to be imposed against the respondent.
    (5) The complaint must be accompanied by a statement identifying the 
party or parties to be served by the Office of the Chief Administrative 
Hearing Officer with notice of the complaint pursuant to Sec. 68.3.
    (c) Complaints filed pursuant to sections 274A and 274C of the INA 
shall be signed by an attorney and shall be accompanied by a copy of the 
Notice of Intent to Fine and Request for Hearing. Complaints filed 
pursuant to section 274B of the INA shall be accompanied by a copy of 
the charge, previously filed with the Special Counsel pursuant to 
section 274B(b)(1), and a copy of the Special Counsel's letter of 
determination regarding the charges.
    (d) Illegible documents, whether handwritten, typewritten, 
photocopied, or otherwise, will not be accepted. Papers may be 
reproduced by any duplicating process, provided that all copies are 
clear and legible.
    (e) All documents presented by a party in a proceeding must be in 
the English language or, if in a foreign language, accompanied by a 
certified translation.

[Order No. 2203-99, 64 FR 7074, Feb. 12, 1999]



Sec. 68.8  Time computations.

    (a) Generally. In computing any period of time under these rules or 
in an order issued hereunder, the time begins with the day following the 
act, event, or default, and includes the last day of the period unless 
it is Saturday, Sunday, or legal holiday observed by the Federal 
Government in which case the time period includes the next business day. 
When the period of time prescribed is seven (7) days or less, 
intermediate Saturdays, Sundays, and holidays shall be excluded in the 
computation.
    (b) Computation of time for filing by mail. Pleadings are not deemed 
filed until received by the Office of the Chief Administrative Hearing 
Officer or Administrative Law Judge assigned to the case.
    (c) Computation of time for service by mail.
    (1) Service of all pleadings other than complaints is deemed 
effective at the time of mailing; and
    (2) Whenever a party has the right or is required to take some 
action within a prescribed period after the service upon such party of a 
pleading, notice, or other document (other than a complaint or a 
subpoena) and the pleading, notice, or document is served by ordinary 
mail, five (5) days shall be added to the prescribed period unless the 
compliance date is otherwise specified by the Chief Administrative 
Hearing Officer or the Administrative Law Judge.

[54 FR 48596, Nov. 24, 1989. Redesignated and amended by Order No. 1534-
91, 56 FR 50053, 50054, Oct. 3, 1991; Order No. 1635-92, 57 FR 57672, 
Dec. 7, 1992]



Sec. 68.9  Responsive pleadings--answer.

    (a) Time for answer. Within thirty (30) days after the service of a 
complaint, each respondent shall file an answer.
    (b) Default. Failure of the respondent to file an answer within the 
time provided may be deemed to constitute a waiver of his or her right 
to appear and contest the allegations of the complaint. The 
Administrative Law Judge may enter a judgment by default.
    (c) Answer. Any respondent contesting any material fact alleged in a 
complaint, or contending that the amount of a proposed penalty or award 
is excessive or inappropriate, or contending that he or she is entitled 
to judgment as a matter of law, shall file an answer in writing. The 
answer shall include:
    (1) A statement that the respondent admits, denies, or does not have 
and is unable to obtain sufficient information to admit or deny each 
allegation; a statement of lack of information shall

[[Page 222]]

have the effect of a denial (any allegation not expressly denied shall 
be deemed to be admitted); and
    (2) A statement of the facts supporting each affirmative defense.
    (d) Reply. Complainants may file a reply responding to each 
affirmative defense asserted.
    (e) Amendments and supplemental pleadings. If a determination of a 
controversy on the merits will be facilitated thereby, the 
Administrative Law Judge may, upon such conditions as are necessary to 
avoid prejudicing the public interest and the rights of the parties, 
allow appropriate amendments to complaints and other pleadings at any 
time prior to the issuance of the Administrative Law Judge's final order 
based on the complaint. When issues not raised by the pleadings are 
reasonably within the scope of the original complaint and are tried by 
express or implied consent of the parties, they shall be treated in all 
respects as if they had been raised in the pleadings, and such 
amendments may be made as necessary to make the pleading conform to the 
evidence. The Administrative Law Judge may, upon reasonable notice and 
such terms as are just, permit supplemental pleadings setting forth 
transactions, occurrences, or events that have occurred or new law 
promulgated since the date of the pleadings and which are relevant to 
any of the issues involved.

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]



Sec. 68.10  Motion to dismiss for failure to state a claim upon which relief can be granted.

    (a) The respondent, without waiving the right to offer evidence in 
the event that the motion is not granted, may move for a dismissal of 
the complaint on the ground that the complainant has failed to state a 
claim upon which relief can be granted. The filing of a motion to 
dismiss does not affect the time period for filing an answer.
    (b) The Administrative Law Judge may dismiss the complaint, based on 
a motion by the respondent or without a motion from the respondent, if 
the Administrative Law Judge determines that the complainant has failed 
to state a claim upon which relief can be granted. However, in the 
prehearing phase of an adjudicatory proceeding brought under this part, 
the Administrative Law Judge shall not dismiss a complaint in its 
entirety for failure to state a claim upon which relief may be granted, 
upon his or her own motion, without affording the complainant an 
opportunity to show cause why the complaint should not be dismissed.

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]



Sec. 68.11  Motions and requests.

    (a) Generally. The Chief Administrative Hearing Officer is 
authorized to act on non-adjudicatory matters relating to a proceeding 
prior to the appointment of an Administrative Law Judge. After the 
complaint is referred to an Administrative Law Judge, any application 
for an order or any other request shall be made by motion which shall be 
made in writing unless the Administrative Law Judge in the course of an 
oral hearing consents to accept such motion orally. The motion or 
request shall state with particularity the grounds therefor, and shall 
set forth the relief or order sought. Motions or requests made during 
the course of any oral hearing or appearance before an Administrative 
Law Judge shall be stated orally and made part of the transcript. 
Whether a motion is made orally or in writing, all parties shall be 
given reasonable opportunity to respond or to object to the motion or 
request.
    (b) Responses to motions. Within ten (10) days after a written 
motion is served, or within such other period as the Administrative Law 
Judge may fix, any party to the proceeding may file a response in 
support of, or in opposition to, the motion, accompanied by such 
affidavits or other evidence upon which he/she desires to rely. Unless 
the Administrative Law Judge provides otherwise, no reply to a response, 
counter-response to a reply, or any further responsive document shall be 
filed.
    (c) Oral arguments or briefs. No oral argument will be heard on 
motions unless the Administrative Law Judge otherwise directs. Written 
memoranda or briefs may be filed with motions or answers to motions, 
stating the points

[[Page 223]]

and authorities relied upon in support of the position taken.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.12  Prehearing statements.

    (a) At any time prior to the commencement of the hearing, the 
Administrative Law Judge may order any party to file a prehearing 
statement of position.
    (b) A prehearing statement shall state the name of the party or 
parties on whose behalf it is presented and shall briefly set forth the 
following matters, unless otherwise ordered by the Administrative Law 
Judge:
    (1) Issues involved in the proceedings;
    (2) Facts stipulated to together with a statement that the party or 
parties have communicated or conferred in a good faith effort to reach 
stipulation to the fullest extent possible;
    (3) Facts in dispute;
    (4) Witnesses, except to the extent that disclosure would be 
privileged, and exhibits by which disputed facts will be litigated;
    (5) A brief statement of applicable law;
    (6) The conclusions to be drawn;
    (7) The estimated time required for presentation of the party's or 
parties' case; and
    (8) Any appropriate comments, suggestions, or information which 
might assist the parties or the Administrative Law Judge in preparing 
for the hearing or otherwise aid in the disposition of the proceeding.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.13  Conferences.

    (a) Purpose and scope. (1) Upon motion of a party or in the 
Administrative Law Judge's discretion, the judge may direct the parties 
or their counsel to participate in a prehearing conference at any 
reasonable time prior to the hearing, or in a conference during the 
course of the hearing, when the Administrative Law Judge finds that the 
proceeding would be expedited by such a conference. Prehearing 
conferences normally shall be conducted by conference telephonic 
communication unless, in the opinion of the Administrative Law Judge, 
such method would be impractical, or when such conferences can be 
conducted in a more expeditious or effective manner by correspondence or 
personal appearance. Reasonable notice of the time, place, and manner of 
the prehearing conference shall be given.
    (2) At the conference, the following matters may be considered:
    (i) The simplification of issues;
    (ii) The necessity of amendments to pleadings;
    (iii) The possibility of obtaining stipulations of facts and of the 
authenticity, accuracy, and admissibility of documents, which will avoid 
unnecessary proof;
    (iv) The limitations on the number of expert or other witnesses;
    (v) Negotiation, compromise, or settlement of issues;
    (vi) The exchange of copies of proposed exhibits;
    (vii) The identification of documents or matters of which official 
notice may be requested;
    (viii) A schedule to be followed by the parties for completion of 
the actions decided at the conference; and
    (ix) Such other matters, including the disposition of pending 
motions, as may expedite and aid in the disposition of the proceeding.
    (b) Reporting. A verbatim record of the conference will not be kept 
unless directed by the Administrative Law Judge.
    (c) Order. Actions taken as a result of a conference shall be 
reduced to a written order, unless the Administrative Law Judge 
concludes that a stenographic report shall suffice, or, if the 
conference takes place within seven (7) days of the beginning of the 
hearing, the Administrative Law Judge elects to make a statement on the 
record at the hearing summarizing the actions taken.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.14  Consent findings or dismissal.

    (a) Submission. Where the parties or their authorized 
representatives or their counsel have entered into a settlement 
agreement, they shall:
    (1) Submit to the presiding Administrative Law Judge:

[[Page 224]]

    (i) The agreement containing consent findings; and
    (ii) A proposed decision and order; or
    (2) Notify the Administrative Law Judge that the parties have 
reached a full settlement and have agreed to dismissal of the action. 
Dismissal of the action shall be subject to the approval of the 
Administrative Law Judge, who may require the filing of the settlement 
agreement.
    (b) Content. Any agreement containing consent findings and a 
proposed decision and order disposing of a proceeding or any part 
thereof shall also provide:
    (1) That the decision and order based on consent findings shall have 
the same force and effect as a decision and order made after full 
hearing;
    (2) That the entire record on which any decision and order may be 
based shall consist solely of the complaint, notice of hearing, and any 
other such pleadings and documents as the Administrative Law Judge shall 
specify;
    (3) A waiver of any further procedural steps before the 
Administrative Law Judge; and
    (4) A waiver of any right to challenge or contest the validity of 
the decision and order entered into in accordance with the agreement.
    (c) Disposition. In the event an agreement containing consent 
findings and an interim decision and order is submitted, the 
Administrative Law Judge, within thirty (30) days or as soon as 
practicable thereafter, may, if satisfied with its timeliness, form, and 
substance, accept such agreement by entering a decision and order based 
upon the agreed findings. In his or her discretion, the Administrative 
Law Judge may conduct a hearing to determine the fairness of the 
agreement, consent findings, and proposed decision and order.

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]



Sec. 68.15  Intervenor in unfair immigration-related employment cases.

    The Special Counsel, or any other interested person or private 
organization, other than an officer of the Immigration and 
Naturalization Service, may petition to intervene as a party in unfair 
immigration-related employment cases. The Administrative Law Judge, in 
his or her discretion, may grant or deny such a petition.

[Order No. 1534-91, 56 FR 50054, Oct. 3, 1991]



Sec. 68.16  Consolidation of hearings.

    When two or more hearings are to be held, and the same or 
substantially similar evidence is relevant and material to the matters 
at issue at each such hearing, the Administrative Law Judge assigned 
may, upon motion by any party, or on his or her own motion, order that a 
consolidated hearing be conducted. Where consolidated hearings are held, 
a single record of the proceedings may be made and the evidence 
introduced in one matter may be considered as introduced in the others, 
and a separate or joint decision shall be made at the discretion of the 
Administrative Law Judge.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.17  Amicus curiae.

    A brief of an amicus curiae may be filed by leave of the 
Administrative Law Judge upon motion or petition of the amicus curiae. 
The amicus curiae shall not participate in any way in the conduct of the 
hearing, including the presentation of evidence and the examination of 
witnesses.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.18  Discovery--general provisions.

    (a) General. Parties may obtain discovery by one or more of the 
following methods: depositions upon oral examination or written 
questions; written interrogatories; production of documents or things, 
or permission to enter upon land or other property, for inspection and 
other purposes; physical and mental examinations; and requests for 
admissions. The frequency or extent of these methods may be limited by 
the Administrative Law Judge upon his or her own initiative or pursuant 
to a motion under paragraph (c) of this section.
    (b) Scope of discovery. Unless otherwise limited by order of the 
Administrative Law Judge in accordance with the rules in this part, the 
parties may obtain discovery regarding any matter, not privileged, which 
is relevant to the

[[Page 225]]

subject matter involved in the proceeding, including the existence, 
description, nature, custody, condition, and location of any books, 
documents, or other tangible things, and the identity and location of 
persons having knowledge of any discoverable matter.
    (c) Protective orders. Upon motion by a party or the person from 
whom discovery is sought, and for good cause shown, the Administrative 
Law Judge may make any order that justice requires to protect a party or 
person from annoyance, harassment, embarrassment, oppression, or undue 
burden or expense, including one or more of the following:
    (1) The discovery not be had;
    (2) The discovery may be had only on specified terms and conditions, 
including a designation of the time, amount, duration, or place;
    (3) The discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery; or
    (4) Certain matters not relevant may not be inquired into, or that 
the scope of discovery be limited to certain matters.
    (d) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement his or her response to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty to supplement timely his or her response 
with respect to any question directly addressed to:
    (i) The identity and location of persons having knowledge of 
discoverable matters; and
    (ii) The identity of each person expected to be called as an expert 
witness at the hearing, the subject matter on which he or she is 
expected to testify, and the substance of his or her testimony.
    (2) A party is under a duty to amend timely a prior response if he 
or she later obtains information upon the basis of which:
    (i) He or she knows the response was incorrect when made; or
    (ii) He or she knows that the response, though correct when made, is 
no longer true and the circumstances are such that a failure to amend 
the response is in substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the 
Administrative Law Judge upon motion of a party or agreement of the 
parties.

[Order No. 2203-99, 64 FR 7076, Feb. 12, 1999]



Sec. 68.19  Written interrogatories to parties.

    (a) Any party may serve upon any other party written interrogatories 
to be answered in writing by the party served, or if the party served is 
a public or private corporation or a partnership or association or 
governmental agency, by any authorized officer or agent, who shall 
furnish such information as is available to the party. A copy of the 
interrogatories shall be served on all parties to the proceeding.
    (b) Each interrogatory shall be answered separately and fully in 
writing under oath or affirmation, unless it is objected to, in which 
event the reasons of objection shall be stated in lieu of an answer. The 
answers and objections shall be signed by the person making them. The 
party upon whom the interrogatories were served shall serve a copy of 
the answer or objections upon all parties to the proceeding within 
thirty (30) days after service of the interrogatories, or within such 
shorter or longer period as the Administrative Law Judge upon motion may 
allow.
    (c) An interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interrogatory involves an 
opinion or contention that relates to fact or the application of law to 
fact, but the Administrative Law Judge may upon motion order that such 
an interrogatory need not be answered until after designated discovery 
has been completed or until a prehearing conference or other later time.
    (d) A person or entity upon whom interrogatories are served may 
respond by the submission of business records, indicating to which 
interrogatory the documents respond, if they are sufficient to answer 
said interrogatories.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]

[[Page 226]]



Sec. 68.20  Production of documents, things, and inspection of land.

    (a) Any party may serve on any other party a request to:
    (1) Produce and permit the party making the request, or a person 
acting on his/her behalf, to inspect and copy any designated documents 
or things or to inspect land, in the possession, custody, or control of 
the party upon whom the request is served; and
    (2) Permit the party making the request, or a person acting on his/
her behalf, to enter the premises of the party upon whom the request is 
served to accomplish the purposes stated in paragraph (1) of this 
section.
    (b) The request may be served on any party without leave of the 
Administrative Law Judge.
    (c) The request shall:
    (1) Set forth the items to be inspected either by individual item or 
by category;
    (2) Describe each item or category with reasonable particularity; 
and
    (3) Specify a reasonable time, place, and manner of making the 
inspection and performing the related acts.
    (d) The party upon whom the request is served shall serve on the 
party submitting the request a written response within thirty (30) days 
after service of the request.
    (e) The response shall state, with respect to each item or category:
    (1) That inspection and related activities will be permitted as 
requested; or
    (2) That objection is made in whole or in part, in which case the 
reasons for objection shall be stated.
    (f) A copy of each request for production and each written response 
shall be served on all parties.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.21  Admissions.

    (a) A party may serve upon any other party a written request for the 
admission, for purposes of the pending action only, of the genuineness 
and authenticity of any relevant document described in or attached to 
the request, or for the admission of the truth of any specified relevant 
matter of fact.
    (b) Each matter of which an admission is requested is admitted 
unless, within thirty (30) days after service of the request or such 
shorter or longer time as the Administrative Law Judge may allow, the 
party to whom the request is directed serves on the requesting party:
    (1) A written statement denying specifically the relevant matters of 
which an admission is requested;
    (2) A written statement setting forth in detail the reasons why he/
she can neither truthfully admit nor deny them; or
    (3) Written objections on the ground that some or all of the matters 
involved are privileged or irrelevant or that the request is otherwise 
improper in whole or in part.
    (c) An answering party may not give lack of information or knowledge 
as a reason for failure to admit or deny unless the party states that 
he/she has made reasonable inquiry and that the information known or 
readily obtainable by him/her is insufficient to enable the party to 
admit or deny.
    (d) Any matter admitted under this section is conclusively 
established unless the Administrative Law Judge upon motion permits 
withdrawal or amendment of the admission.
    (e) A copy of each request for admission and each written response 
shall be served on all parties.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.22  Depositions.

    (a) Notice. Any party desiring to take the deposition of a witness 
shall give notice in writing to the witness and other parties of the 
time and place of the deposition, and the name and address of each 
witness. If documents are requested, the notice shall include a written 
request for the production of documents. Not less than ten (10) days 
written notice shall be given when the deposition is to be taken within 
the continental United States, and not less then twenty (20) days 
written notice shall be given when the deposition is to be taken 
elsewhere, unless otherwise permitted by the Administrative Law Judge or 
agreed to by the parties.
    (b) When, how, and by whom taken. The following procedures shall 
apply to depositions:

[[Page 227]]

    (1) Depositions may be taken by oral examination or upon written 
interrogatories before any person having power to administer oaths. The 
party taking a deposition upon oral examination shall state in the 
notice the method by which the testimony shall be recorded. Unless the 
Administrative Law Judge orders otherwise, it may be recorded by sound, 
sound-and-visual, or stenographic means, and the party taking the 
deposition shall bear the cost of the recording. Any party may arrange 
for a transcription to be made from the recording of a deposition taken 
by non-stenographic means.
    (2) Each witness testifying upon deposition shall testify under oath 
and any other party shall have the right to cross-examine. The questions 
asked and the answers thereto, together with all objections made, shall 
be recorded as provided by paragraph (b)(1) of this section. The person 
administering the oath shall certify in writing that the transcript or 
recording is a true record of the testimony given by the witness. The 
witness shall review the transcript or recording within thirty (30) days 
of notification that it is available and subscribe in writing to the 
deposition, indicating in writing any changes in form or substance, 
unless such review is waived by the witness and the parties by 
stipulation.
    (c) Motion to terminate or limit examination. During the taking of a 
deposition, a party or deponent may request suspension of the deposition 
on grounds of bad faith in the conduct of the examination, oppression of 
a deponent or party, or improper questions asked. The deposition will 
then be adjourned. However, the objecting party or deponent must 
immediately move the Administrative Law Judge for a ruling on his or her 
objections to the deposition conduct or proceedings.

[Order No. 2203-99, 64 FR 7076, Feb. 12, 1999]



Sec. 68.23  Motion to compel response to discovery; sanctions.

    (a) If a deponent fails to answer a question asked, or a party upon 
whom a discovery request is made pursuant to Secs. 68.18 through 68.22 
fails to respond adequately or objects to the request or to any part 
thereof, or fails to permit inspection as requested, the discovering 
party may move the Administrative Law Judge for an order compelling a 
response or inspection in accordance with the request. A party who has 
taken a deposition or has requested admissions or has served 
interrogatories may move to determine the sufficiency of the answers or 
objections thereto. Unless the objecting party sustains his or her 
burden of showing that the objection is justified, the Administrative 
Law Judge may order that an answer be served. If the Administrative Law 
Judge determines that an answer does not comply with the requirements of 
the rules in this part, he or she may order either that the matter is 
admitted or that an amended answer be served.
    (b) The motion shall set forth and include:
    (1) The nature of the questions or request;
    (2) The response or objections of the party upon whom the request 
was served;
    (3) Arguments in support of the motion; and
    (4) A certification that the movant has in good faith conferred or 
attempted to confer with the person or party failing to make the 
discovery in an effort to secure information or material without action 
by the Administrative Law Judge.
    (c) If a party, an officer or an agent of a party, or a witness, 
fails to comply with an order, including, but not limited to, an order 
for the taking of a deposition, the production of documents, the 
answering of interrogatories, a response to a request for admissions, or 
any other order of the Administrative Law Judge, the Administrative Law 
Judge may, for the purposes of permitting resolution of the relevant 
issues and disposition of the proceeding and to avoid unnecessary delay, 
take the following actions:
    (1) Infer and conclude that the admission, testimony, documents, or 
other evidence would have been adverse to the non-complying party;
    (2) Rule that for the purposes of the proceeding the matter or 
matters concerning which the order was issued be taken as established 
adversely to the non-complying party;

[[Page 228]]

    (3) Rule that the non-complying party may not introduce into 
evidence or otherwise rely upon testimony by such party, officer, or 
agent, or the documents or other evidence, in support of or in 
opposition to any claim or defense;
    (4) Rule that the non-complying party may not be heard to object to 
introduction and use of secondary evidence to show what the withheld 
admission, testimony, documents, or other evidence would have shown;
    (5) Rule that a pleading, or part of a pleading, or a motion or 
other submission by the non-complying party, concerning which the order 
was issued, be stricken, or that a decision of the proceeding be 
rendered against the non-complying party, or both;
    (6) In the case of failure to comply with a subpoena, the 
Administrative Law Judge may also take the action provided in 
Sec. 68.25(e); and
    (7) In ruling on a motion made pursuant to this section, the 
Administrative Law Judge may make and enter a protective order such as 
he or she is authorized to enter on a motion made pursuant to 
Sec. 68.42.
    (d) Evasive or incomplete response. For the purposes of this 
section, an evasive or incomplete response to discovery may be treated 
as a failure to respond.

[Order No. 2203-99, 64 FR 7076, Feb. 12, 1999]



Sec. 68.24  Use of depositions at hearings.

    (a) Generally. At the hearing, any part or all of a deposition, so 
far as admissible, may be used against any party who was present or 
represented at the taking of the deposition or who had due notice 
thereof, in accordance with any one of the following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of the deponent as a witness;
    (2) The deposition of an expert witness may be used by any party for 
any purpose, unless the Administrative Law Judge rules that such use 
would be unfair or a violation of due process;
    (3) The deposition of a party or of anyone who at the time of taking 
the deposition was an officer, director, or duly authorized agent of a 
public or private corporation, partnership, or association which is a 
party, may be used by any other party for any purpose;
    (4) The deposition of a witness, whether or not a party, may be used 
by any party for any purpose if the Administrative Law Judge finds:
    (i) That the witness is dead;
    (ii) That the witness is out of the United States or more than 100 
miles from the place of hearing unless it appears that the absence of 
the witness was procured by the party offering the deposition;
    (iii) That the witness is unable to attend to testify because of 
age, sickness, infirmity, or imprisonment;
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional circumstances 
exist to make it desirable, in the interest of justice, and with due 
regard to the importance of presenting the testimony of witnesses orally 
in open hearing, to allow the deposition to be used;
    (5) If only part of a deposition is offered in evidence by a party, 
any other party may require him or her to introduce all of it which is 
relevant to the part introduced, and any party may introduce any other 
parts; and
    (6) Substitution of parties does not affect the right to use 
depositions previously taken; and, when a proceeding in any hearing has 
been dismissed and another proceeding involving the parties or their 
representatives or successors in interest has been brought (or 
commenced), all depositions lawfully taken and duly filed in the former 
proceeding may be used in the latter if originally taken therefor.
    (7) A party offering deposition testimony may offer it in 
stenographic or nonstenographic form, but if in nonstenographic form, 
the party shall also be responsible for providing a transcript of the 
portions so offered.
    (b) Objections to admissibility. Except as provided in this 
paragraph, objections may be made at the hearing to receiving in 
evidence any deposition or part thereof for any reason that would 
require the exclusion of the evidence if the witness were then present 
and testifying.

[[Page 229]]

    (1) Objections to the competency of a witness or to the competency, 
relevancy, or materiality of testimony are not waived by failure to make 
them before or during the taking of the deposition, unless the ground of 
the objection is one that might have been obviated or removed if 
presented at that time.
    (2) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless reasonable objection thereto is 
made at the taking of the deposition.

[Order No. 2203-99, 64 FR 7077, Feb. 12, 1999]



Sec. 68.25  Subpoenas.

    (a) An Administrative Law Judge, upon his or her own initiative or 
upon request of an individual or entity before a complaint is filed or 
by a party once a complaint has been filed, may issue subpoenas as 
authorized by statute, either prior to or subsequent to the filing of a 
complaint. Such subpoena may require attendance and testimony of 
witnesses and production of things including, but not limited to, 
papers, books, documents, records, correspondence, or tangible things in 
their possession and under their control and access to such things for 
the purposes of examination and copying. A subpoena may be served by 
overnight courier service or overnight mail, certified mail, or by any 
person who is not less than 18 years of age. A witness, other than a 
witness subpoenaed on behalf of the Federal Government, may not be 
required to attend a deposition or hearing unless the mileage and 
witness fee applicable to witnesses in courts of the United States for 
each date of attendance is paid in advance of the date of the 
proceeding. Mileage and witness fees need not be paid to a witness at 
the time of service of the subpoena if the witness is subpoenaed by the 
Federal Government.
    (b) The subpoena shall identify the person or things subpoenaed, the 
person to whom it is returnable and the place, date, and time at which 
it is returnable; or the subpoena shall identify the nature of the 
evidence to be examined and copied, and the date and time when access is 
requested. Where a non-party is subpoenaed, the requestor of the 
subpoena must give notice to all parties, or if no complaint has been 
filed, then notice shall be given to individuals or entities who have 
been charged with an unfair immigration-related employment practice 
under section 274B of the INA, the individual initiating the alleged 
unfair immigration-related employment practice, and the Office of 
Special Counsel. For purposes of this subsection, the receipt of the 
subpoena or a copy of the subpoena shall serve as the notice.
    (c) Any person served with a subpoena issued by an Administrative 
Law Judge who intends not to comply with it shall, within ten (10) days 
after the date of service of the subpoena upon such person or within 
such other time the Administrative Law Judge deems appropriate, petition 
the Administrative Law Judge to revoke or modify the subpoena. A copy of 
the petition shall be served on all parties. If a complaint has not been 
filed in the matter, a copy of the petition shall be served on the 
individual or entity that requested the subpoena. The petition shall 
separately identify each portion of the subpoena with which the 
petitioner does not intend to comply and shall state, with respect to 
each such portion, the grounds upon which the petitioner relies. A copy 
of the subpoena shall be attached to the petition. Within eight (8) days 
after receipt of the petition, the individual or entity that applied for 
the subpoena may respond to such petition, and the Administrative Law 
Judge shall then make a final determination upon the petition. The 
Administrative Law Judge shall cause a copy of the final determination 
of the petition to be served upon all parties, or, if a complaint has 
not been filed, upon the individuals or entities requesting and 
responding to the subpoena.
    (d) A party shall have standing to challenge a subpoena issued to a 
non-party if the party can claim a personal right or privilege in the 
discovery sought.
    (e) Failure to comply. Upon the failure of any person to comply with 
an order to testify or a subpoena issued

[[Page 230]]

under this section, the Administrative Law Judge may, where authorized 
by law, apply through appropriate counsel to the appropriate district 
court of the United States for an order requiring compliance with the 
order or subpoena.

[Order No. 1534-91, 56 FR 50055, Oct. 3, 1991, as amended by Order No. 
1635-92, 57 FR 57672, Dec. 7, 1992]



Sec. 68.26  Designation of Administrative Law Judge.

    Hearings shall be held before an Administrative Law Judge appointed 
under 5 U.S.C. 3105 and assigned to the Department of Justice. The 
presiding judge in any case shall be designated by the Chief 
Administrative Hearing Officer. The Chief Administrative Hearing Officer 
may reassign a case previously assigned to an Administrative Law Judge 
to promote administrative efficiency. In unfair immigration-related 
employment practice cases, only Administrative Law Judges specially 
designated by the Attorney General as having special training respecting 
employment discrimination may be chosen by the Chief Administrative 
Hearing Officer to preside.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991, as amended by Order No. 1635-92, 57 FR 57672, Dec. 
7, 1992]



Sec. 68.27  Continuances.

    (a) When granted. Continuances shall only be granted in cases where 
the requester has a prior judicial commitment or can demonstrate undue 
hardship, or a showing of other good cause.
    (b) Time limit for requesting. Except for good cause arising 
thereafter, requests for continuances must be filed not later than 
fourteen (14) days prior to the date of the scheduled proceeding.
    (c) How filed. Motions for continuances shall be in writing, unless 
made during the prehearing conference or the hearing. Copies shall be 
served on all parties. Any motions for continuances filed fewer than 
fourteen (14) days before the date of the scheduled proceeding shall, in 
addition to the written request, be telephonically communicated to the 
Administrative Law Judge or a member of the Judge's staff and to all 
other parties.
    (d) Ruling. Time permitting, the Administrative Law Judge shall 
enter a written order in advance of the scheduled proceeding date that 
either grants or denies the request. Otherwise, the ruling shall be made 
orally by telephonic communication to the party requesting the 
continuance, who shall be responsible for telephonically notifying all 
other parties. Oral orders shall be confirmed in writing by the 
Administrative Law Judge.

[Order No. 2203-99, 64 FR 7077, Feb. 12, 1999]



Sec. 68.28  Authority of Administrative Law Judge.

    (a) General powers. In any proceeding under this part, the 
Administrative Law Judge shall have all appropriate powers necessary to 
conduct fair and impartial hearings, including, but not limited to, the 
following:
    (1) Conduct formal hearings in accordance with the provisions of the 
Administrative Procedure Act and of this part;
    (2) Administer oaths and examine witnesses;
    (3) Compel the production of documents and appearance of witnesses 
in control of the parties;
    (4) Compel the appearance of witnesses by the issuance of subpoenas 
as authorized by law;
    (5) Issue decisions and orders;
    (6) Take any action authorized by the Administrative Procedure Act;
    (7) Exercise, for the purpose of the hearing and in regulating the 
conduct of the proceeding, such powers vested in the Attorney General as 
are necessary and appropriate therefore; and
    (8) Take other appropriate measures necessary to enable him or her 
to discharge the duties of the office.
    (b) Enforcement. If any person in proceedings before an 
Administrative Law Judge disobeys or resists any lawful order or 
process, or misbehaves during a hearing or so near the place thereof as 
to obstruct the same, or neglects to produce, after having been ordered 
to do so, any pertinent book, paper, or document, or refuses to appear 
after having been subpoenaed, or upon appearing refuses to take the oath 
as a witness, or after having taken the oath refuses to be examined 
according to

[[Page 231]]

law, the Administrative Law Judge responsible for the adjudication may, 
where authorized by statute or law, apply through appropriate counsel to 
the Federal District Court having jurisdiction in the place in which he/
she is sitting to request appropriate remedies.

[54 FR 48596, Nov. 24, 1989. Redesignated and amended by Order No. 1534-
91, 56 FR 50053, 50055, Oct. 3, 1991; Order No. 1635-92, 57 FR 57672, 
Dec. 7, 1992]



Sec. 68.29  Unavailability of Administrative Law Judge.

    In the event the Administrative Law Judge designated to conduct the 
hearing becomes unavailable, the Chief Administrative Hearing Officer 
may designate another Administrative Law Judge for the purpose of 
further hearing or other appropriate action.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.30  Disqualification.

    (a) When an Administrative Law Judge deems himself or herself 
disqualified to preside in a particular proceeding, such judge shall 
withdraw therefrom by notice on the record directed to the Chief 
Administrative Hearing Officer.
    (b) Whenever any party shall deem the Administrative Law Judge for 
any reason to be disqualified to preside, or to continue to preside, in 
a particular proceeding, that party shall file with the Administrative 
Law Judge a motion to recuse. The motion shall be supported by an 
affidavit setting forth the alleged grounds for disqualification. The 
Administrative Law Judge shall rule upon the motion.
    (c) In the event of disqualification or recusal of an Administrative 
Law Judge as provided in paragraph (a) or (b) of this section, the Chief 
Administrative Hearing Officer shall refer the matter to another 
Administrative Law Judge for further proceedings.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.31  Separation of functions.

    No officer, employee, or agent of the Federal Government engaged in 
the performance of investigative or prosecutorial functions in 
connection with any proceeding shall, in that proceeding or a factually 
related proceeding, participate or advise in the decision of the 
Administrative Law Judge, except as a witness or counsel in the 
proceedings.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.32  Expedition.

    Hearings shall proceed with all reasonable speed, insofar as 
practicable and with due regard to the convenience of the parties.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.33  Participation of parties and representation.

    (a) Participation of parties. Any party shall have the right to 
appear in a proceeding and may examine and cross-examine witnesses and 
introduce into the record documentary or other relevant evidence, except 
that the participation of any intervenor shall be limited to the extent 
prescribed by the Administrative Law Judge.
    (b) Person compelled to testify. Any person compelled to testify in 
a proceeding in response to a subpoena may be accompanied, represented, 
and advised by an individual meeting the requirements of paragraph (c) 
of this section.
    (c) Representation for parties other than the Department of Justice. 
Persons who may appear before the Administrative Law Judges on behalf of 
parties other than the Department of Justice include:
    (1) An attorney at law who is admitted to practice before the 
federal courts or before the highest court of any state, the District of 
Columbia, or any territory or commonwealth of the United States, may 
practice before the Administrative Law Judges. An attorney's own 
representation that the attorney is in good standing before any of such 
courts shall be sufficient proof thereof, unless otherwise ordered by 
the Administrative Law Judge.
    (2) A law student, enrolled in an accredited law school, may 
practice before an Administrative Law Judge. The

[[Page 232]]

law student must seek advance approval by filing a statement with the 
Administrative Law Judge proving current participation in a legal 
assistance program or clinic conducted by the law school. Practice 
before the Administrative Law Judge shall be under direct supervision of 
a faculty member or an attorney. An appearance by a law student shall be 
without direct or indirect remuneration. The Administrative Law Judge 
may determine the amount of supervision required of the supervising 
faculty member or attorney.
    (3) An individual who is neither an attorney nor a law student may 
be allowed to provide representation to a party upon a written order 
from the Administrative Law Judge assigned to the case granting approval 
of the representation. The individual must file a written application 
with the Administrative Law Judge demonstrating that the individual 
possesses the knowledge of administrative procedures, technical 
expertise, or other qualifications necessary to render valuable service 
in the proceedings and is otherwise competent to advise and assist in 
the presentation of matters in the proceedings.
    (i) Application. A written application by an individual who is 
neither an attorney nor a law student for admission to represent a party 
in proceedings shall be submitted to the Administrative Law Judge within 
ten (10) days from the receipt of the Notice of Hearing and complaint by 
the party on whose behalf the individual wishes to file the application. 
This period of time for filing the application may be extended upon 
approval of the Administrative Law Judge. The application shall set 
forth in detail the requesting individual's qualifications to represent 
the party.
    (ii) Inquiry on qualifications or ability. The Administrative Law 
Judge may, at any time, inquire as to the qualifications or ability of 
any non-attorney to render assistance in proceedings before the 
Administrative Law Judge.
    (iii) Denial of authority to appear. Except as provided in paragraph 
(c)(3)(iv) of this section, the Administrative Law Judge may enter an 
order denying the privilege of appearing to any individual who the Judge 
finds does not possess the requisite qualifications to represent others; 
is lacking in character or integrity; has engaged in unethical or 
improper professional conduct; or has engaged in an act involving moral 
turpitude.
    (iv) Exception. Any individual may represent him or herself or any 
corporation, partnership or unincorporated association of which that 
individual is a partner or general officer in proceedings before the 
Administrative Law Judge without prior approval of the Administrative 
Law Judge and without filing the written application required by this 
paragraph. Such individuals must, however, file a notice of appearance 
in the manner set forth in paragraph (e) of this section.
    (d) Representation for the Department of Justice. The Department of 
Justice may be represented by the appropriate counsel in these 
proceedings.
    (e) Proof of authority. Any individual acting in a representative 
capacity in any adjudicative proceeding may be required by the 
Administrative Law Judge to show his or her authority to act in such 
capacity. Representation of a respondent shall be at no expense to the 
Government.
    (f) Notice of appearance. Except for a government attorney filing a 
complaint pursuant to section 274A, 274B, or 274C of the INA, each 
attorney shall file a notice of appearance. Such notice shall indicate 
the name of the case or controversy, the case number if assigned, and 
the party on whose behalf the appearance is made. The notice of 
appearance shall be signed by the attorney, and shall be accompanied by 
a certification indicating that such notice was served on all parties of 
record. A request for a hearing signed by an attorney and filed with the 
Immigration and Naturalization Service pursuant to section 274A(e)(3)(A) 
or 274C(d)(2)(A) of the INA, and containing the same information as 
required by this section, shall be considered a notice of appearance on 
behalf of the respondent for whom the request was made.
    (g) Withdrawal or substitution of a representative. Withdrawal or 
substitution of an attorney or representative may be permitted by the 
Administrative Law Judge upon written motion. The Administrative Law 
Judge shall enter

[[Page 233]]

an order granting or denying such motion for withdrawal or substitution.

[Order No. 2203-99, 64 FR 7077, Feb. 12, 1999, as amended by Order No. 
2255-99, 64 FR 49660, Sept. 14, 1999]



Sec. 68.34  Legal assistance.

    The Office of the Chief Administrative Hearing Officer does not have 
authority to appoint counsel.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.35  Standards of conduct.

    (a) All persons appearing in proceedings before an Administrative 
Law Judge are expected to act with integrity, and in an ethical manner.
    (b) The Administrative Law Judge may exclude from proceedings 
parties, witnesses, and their representatives for refusal to comply with 
directions, continued use of dilatory tactics, refusal to adhere to 
reasonable standards of orderly and ethical conduct, failure to act in 
good faith, or violation of the prohibition against ex parte 
communications. The Administrative Law Judge shall state in the record 
the cause for barring an attorney or other individual from participation 
in a particular proceeding. The Administrative Law Judge may suspend the 
proceeding for a reasonable time for the purpose of enabling a party to 
obtain another attorney or representative.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.36  Ex parte communications.

    (a) General. Except for other employees of the Executive Office for 
Immigration Review, the Administrative Law Judge shall not consult any 
person, or party, on any fact in issue unless upon notice and 
opportunity for all parties to participate. Communications by the Office 
of the Chief Administrative Hearing Officer, the assigned judge, or any 
party for the sole purpose of scheduling hearings, or requesting 
extensions of time are not considered ex parte communications, except 
that all other parties shall be notified of such request by the 
requesting party and be given an opportunity to respond thereto.
    (b) Sanctions. A party or participant who makes a prohibited ex 
parte communication, or who encourages or solicits another to make any 
such communication, may be subject to any appropriate sanction or 
sanctions, including but not limited to, exclusion from the proceedings 
and adverse ruling on the issue which is the subject of the prohibited 
communication.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.37  Waiver of right to appear and failure to participate or to appear.

    (a) Waiver of right to appear. If all parties waive in writing their 
right to appear before the Administrative Law Judge or to present 
evidence or argument personally or by representative, it shall not be 
necessary to give notice of and conduct an oral hearing. A waiver of the 
right to appear and present evidence and allegations as to facts and law 
shall be made in writing and filed with the Chief Administrative Hearing 
Officer or the Administrative Law Judge. Where such a waiver has been 
filed by all parties and they do not appear before the Administrative 
Law Judge personally or by representative, the Administrative Law Judge 
shall make a record of the relevant written evidence submitted by the 
parties, together with any pleadings they may submit with respect to the 
issues in the case. Such documents shall be considered as all of the 
evidence in the case and decision shall be based on them.
    (b) Dismissal--Abandonment by party. A complaint or a request for 
hearing may be dismissed upon its abandonment by the party or parties 
who filed it. A party shall be deemed to have abandoned a complaint or a 
request for hearing if:
    (1) A party or his or her representative fails to respond to orders 
issued by the Administrative Law Judge; or
    (2) Neither the party nor his or her representative appears at the 
time and place fixed for the hearing and either
    (i) Prior to the time for hearing, such party does not show good 
cause as to why neither he or she nor his or her representative can 
appear; or
    (ii) Within ten (10) days after the time for hearing or within such 
other period as the Administrative Law

[[Page 234]]

Judge may allow, such party does not show good cause for such failure to 
appear.
    (c) Default--Failure to appear. A default decision, under 
Sec. 68.9(b), may be entered, with prejudice, against any party failing, 
without good cause, to appear at a hearing.

[54 FR 48596, Nov. 24, 1989. Redesignated and amended by Order No. 1534-
91, 56 FR 50053, 50056, Oct. 3, 1991; Order No. 1635-92, 57 FR 57672, 
Dec. 7, 1992]



Sec. 68.38  Motion for summary decision.

    (a) A complainant, not fewer than thirty (30) days after receipt by 
respondent of the complaint, may move with or without supporting 
affidavits for summary decision on all or any part of the complaint. 
Motions by any party for summary decision on all or any part of the 
complaint will not be entertained within the twenty (20) days prior to 
any hearing, unless the Administrative Law Judge decides otherwise. Any 
other party, within ten (10) days after service of a motion for summary 
decision, may respond to the motion by serving supporting or opposing 
papers with affidavits, if appropriate, or countermove for summary 
decision. The Administrative Law Judge may set the matter for argument 
and/or call for submission of briefs.
    (b) Any affidavits submitted with the motion shall set forth such 
facts as would be admissible in evidence in a proceeding subject to 5 
U.S.C. 556 and 557 and shall show affirmatively that the affiant is 
competent to testify to the matters stated therein. When a motion for 
summary decision is made and supported as provided in this section, a 
party opposing the motion may not rest upon the mere allegations or 
denials of such pleading. Such response must set forth specific facts 
showing that there is a genuine issue of fact for the hearing.
    (c) The Administrative Law Judge shall enter a summary decision for 
either party if the pleadings, affidavits, material obtained by 
discovery or otherwise, or matters officially noticed show that there is 
no genuine issue as to any material fact and that a party is entitled to 
summary decision.
    (d) Form of summary decisions. Any final order entered as a summary 
decision shall conform to the requirements for all final orders. A final 
order made under this section shall include a statement of:
    (1) Findings of fact and conclusions of law, and the reasons 
therefor, on all issues presented; and
    (2) Any terms and conditions of the final order.
    (e) Hearings on issue of fact. Where a genuine question of material 
fact is raised, the Administrative Law Judge shall set the case for an 
evidentiary hearing.

[Order No. 2203-99, 64 FR 7078, Feb. 12, 1999]



Sec. 68.39  Formal hearings.

    (a) Public. Hearings shall be open to the public. The Administrative 
Law Judge may order a hearing or any part thereof closed, where to do so 
would be in the best interests of the parties, a witness, the public, or 
other affected persons. Any order closing the hearing shall set forth 
the reasons for the decision. Any objections thereto shall be made a 
part of the record.
    (b) Jurisdiction. The Administrative Law Judge shall have 
jurisdiction to decide all issues of fact and related issues of law.
    (c) Rights of parties. Every party shall have the right of timely 
notice and all other rights essential to a fair hearing, including, but 
not limited to, the right to present evidence, to conduct such cross-
examination as may be necessary for a full and complete disclosure of 
the facts, and to be heard by objection, motion, and argument.
    (d) Rights of participation. Every party shall have the right to 
make a written or oral statement of position. At the discretion of the 
Administrative Law Judge, participants may file proposed findings of 
fact, conclusions of law, and a post hearing brief.
    (e) Amendments to conform to the evidence. When issues not raised by 
the request for hearing, prehearing stipulation, or prehearing order are 
tried by express or implied consent of the parties, they shall be 
treated in all respects as if they had been raised in the pleadings. 
Such amendment of the pleadings as may be necessary to cause them to 
conform to the evidence may be made on motion of any party at any time; 
but failure to so amend does not

[[Page 235]]

affect the result of the hearing of these issues. The Administrative Law 
Judge may grant a continuance to enable the objecting party to meet such 
evidence.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.40  Evidence.

    (a) Applicability of Federal rules of evidence. Unless otherwise 
provided by statute or these rules, the Federal Rules of Evidence will 
be a general guide to all proceedings held pursuant to these rules.
    (b) Admissibility. All relevant material and reliable evidence is 
admissible, but may be excluded if its probative value is substantially 
outweighed by unfair prejudice or confusion of the issues, or by 
considerations of undue delay, waste of time, immateriality, or needless 
presentation of cumulative evidence. Stipulations of fact may be 
introduced in evidence with respect to any issue. Every party shall have 
the right to present his/her case or defense by oral or documentary 
evidence, depositions, and duly authenticated copies of records and 
documents; to submit rebuttal evidence; and to conduct such reasonable 
cross-examination as may be required for a full and true disclosure of 
the facts. The Administrative Law Judge shall have the right in his/her 
discretion to limit the number of witnesses whose testimony may be 
merely cumulative and shall, as a matter of policy, not only exclude 
irrelevant, immaterial, or unduly repetitious evidence but shall also 
limit the cross-examination of witnesses to reasonable bounds so as not 
to prolong the hearing unnecessarily, and unduly burden the record. 
Material and relevant evidence shall not be excluded because it is not 
the best evidence, unless its authenticity is challenged, in which case 
reasonable time shall be given to establish its authenticity. When only 
portions of a document are to be relied upon, the offering party shall 
prepare the pertinent excerpts, adequately identified, and shall supply 
copies of such excerpts, together with a statement indicating the 
purpose for which such materials will be offered, to the Administrative 
Law Judge and to the other parties. Only the excerpts, so prepared and 
submitted, shall be received in the record. However, the original 
document should be made available for examination and for use by 
opposing counsel for purposes of cross-examination. Compilations, 
charts, summaries of data, and photostatic copies of documents may be 
admitted in evidence if the proceedings will thereby be expedited, and 
if the material upon which they are based is available for examination 
by the parties.
    (c) Objections to evidence. Objections to the admission or exclusion 
of evidence shall be in short form, stating the grounds of objections 
relied upon, and to the extent permitted by the Administrative Law 
Judge, the transcript shall include argument or debate thereon. Rulings 
on such objections shall be made at the time of objection or prior to 
the receipt of further evidence. Such ruling shall be a part of the 
record.
    (d) Exceptions. Formal exceptions to the rulings of the 
Administrative Law Judge made during the course of the hearing are 
unnecessary. For all purposes for which an exception otherwise would be 
taken, it is sufficient that a party, at the time the ruling of the 
Administrative Law Judge is made or sought, makes known the action he/
she desires the Administrative Law Judge to take or his/her objection to 
an action taken, and his/her grounds therefor.
    (e) Offers of proof. Any offer of proof made in connection with an 
objection taken to any ruling of the Administrative Law Judge rejecting 
or excluding proffered oral testimony shall consist of a statement of 
the substance of the evidence which counsel contends would be adduced by 
such testimony, and, if the excluded evidence consists of evidence in 
documentary or written form or of reference to documents or records, a 
copy of such evidence shall be marked for identification and shall 
constitute the offer of proof.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.41  Official notice.

    Official notice may be taken of any material fact, not appearing in 
evidence in the record, which is among the traditional matters of 
judicial notice. Provided, however, that the parties shall be given 
adequate notice, at

[[Page 236]]

the hearing or by reference in the Administrative Law Judge's decision, 
of the matters so noticed, and shall be given adequate opportunity to 
show the contrary.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.42  In camera and protective orders.

    (a) Privileged communications. Upon application of any person, the 
Administrative Law Judge may limit discovery or introduction of evidence 
or enter such protective or other orders as in the Judge's judgment may 
be consistent with the objective of protecting privileged communications 
and of protecting data and other material the disclosure of which would 
unreasonably prejudice a party, witness, or third party.
    (b) Classified or sensitive matter. (1) Without limiting the 
discretion of the Administrative Law Judge to give effect to any other 
applicable privilege, it shall be proper for the Administrative Law 
Judge to limit discovery or introduction of evidence or to enter such 
protective or other orders as in the Judge's judgment may be consistent 
with the objective of preventing undue disclosure of classified or 
sensitive matter. When the Administrative Law Judge determines that 
information in documents containing sensitive matter should be made 
available the Judge may direct the producing party to prepare an 
unclassified or nonsensitive summary or extract of the original. The 
summary or extract may be admitted as evidence in the record.
    (2) If the Administrative Law Judge determines that this procedure 
is inadequate and that classified or otherwise sensitive matter must 
form part of the record in order to avoid prejudice to any party, the 
Judge may so advise the parties and provide an opportunity for 
arrangements to permit a party or a representative to have access to 
such matter. Such arrangements may include obtaining security clearances 
or giving counsel for a party access to sensitive information and 
documents subject to assurances against further disclosure.

[Order No. 2203-99, 64 FR 7079, Feb. 12, 1999]



Sec. 68.43  Exhibits.

    (a) Identification. All exhibits offered in evidence shall be 
numbered and marked with a designation identifying the party or 
intervenor by whom the exhibit is offered.
    (b) Exchange of exhibits. When written exhibits are offered in 
evidence, one copy must be furnished to each of the parties at the 
hearing, and two copies to the Administrative Law Judge, unless the 
parties previously have been furnished with copies or the Administrative 
Law Judge directs otherwise. If the Administrative Law Judge has not 
fixed a time for the exchange of exhibits, the parties shall exchange 
copies of exhibits at the earliest practicable time, preferably before 
the hearing or, at the latest, at the commencement of the hearing.
    (c) Substitution of copies for original exhibits. The Administrative 
Law Judge may permit a party to withdraw original documents offered in 
evidence and substitute true copies in lieu thereof.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991, and amended by Order No. 1635-92, 57 FR 57672, Dec. 
7, 1992]



Sec. 68.44  Records in other proceedings.

    In case any portion of the record in any other proceeding or civil 
or criminal action is offered in evidence, a true copy of such portion 
shall be presented for the record in the form of an exhibit unless the 
Administrative Law Judge directs otherwise.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.45  Designation of parts of documents.

    Where relevant and material matter offered in evidence is embraced 
in a document containing other matter not material or relevant and not 
intended to be put in evidence, the participant offering the same shall 
plainly designate the matter so offered, segregating and excluding 
insofar as practicable the immaterial or irrelevant parts. If other 
matter in such document is in such bulk or extent as would necessarily 
encumber the record, such

[[Page 237]]

document will not be received in evidence, but may be marked for 
identification, and if properly authenticated, the relevant and material 
parts thereof may be read into the record, or if the Administrative Law 
Judge so directs, a true copy of such matter in proper form shall be 
received in evidence as an exhibit, and copies shall be delivered by the 
participant offering the same to the other parties or their attorneys 
appearing at the hearing, who shall be afforded an opportunity to 
examine the entire document and to offer in evidence in like manner 
other material and relevant portions thereof.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.46  Authenticity.

    The authenticity of all documents submitted as proposed exhibits in 
advance of the hearing shall be deemed admitted unless written objection 
therto is filed prior to the hearing, except that a party will be 
permitted to challenge such authenticity at a later time upon a clear 
showing of good cause for failure to have filed such written objection.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.47  Stipulations.

    The parties may by stipulation in writing at any stage of the 
proceeding, or by stipulation made orally at the hearing, agree upon any 
pertinent facts in the processing. It is desirable that the facts be 
thus agreed upon so far as and whenever practicable. Stipulations may be 
recieved in evidence at a hearing or prior thereto, and when received in 
evidence, shall be binding on the parties thereto.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.48  Record of hearings.

    (a) General. A verbatim written record of all hearings shall be 
kept, except in cases where the proceedings are terminated in accordance 
with Sec. 68.14. All evidence upon which the Administrative Law Judge 
relies for decision shall be contained in the transcript of testimony, 
either directly or by appropriate reference. All exhibits introduced as 
evidence shall be marked for identification and incorporated into the 
record. Transcripts may be obtained by the parties and the public from 
the official court reporter of record. Any fees in connection therewith 
shall be the responsibility of the parties.
    (b) Corrections. Corrections to the official transcript will be 
permitted upon motion. Motions for correction must be submitted within 
ten (10) days of the receipt of the transcript by the Administrative Law 
Judge or such other time as may be permitted by the Administrative Law 
Judge. Corrections of the official transcript will be permitted only 
when errors of substance are involved and only upon approval of the 
Administrative Law Judge.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991, and amended by Order No. 1635-92, 57 FR 57672, Dec. 
7, 1992]



Sec. 68.49  Closing the record.

    (a) When there is a hearing, the record shall be closed at the 
conclusion of the hearing unless the Administrative Law Judge directs 
otherwise.
    (b) If any party waives a hearing, the record shall be closed on the 
date set by the Administrative Law Judge as the final date for the 
receipt of submissions of the parties to the matter.
    (c) Once the record is closed, no additional evidence shall be 
accepted into the record except upon a showing that new and material 
evidence has become available which was not readily available prior to 
the closing of the record. However, the Administrative Law Judge shall 
make part of the record any motions for attorney's fees authorized by 
statutes, and any supporting documentation, any determinations thereon, 
and any approved correction to the transcript.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.50  Receipt of documents after hearing.

    Documents submitted for the record after the close of the hearing 
will not be received in evidence except upon ruling of the 
Administrative Law Judge. Such documents when submitted shall be 
accompanied by proof

[[Page 238]]

that copies have been served upon all parties, who shall have an 
opportunity to comment thereon. Copies shall be received not later than 
twenty (20) days after the close of the hearing except for good cause 
shown, and not less than ten (10) days prior to the date set for filing 
briefs. Exhibit numbers should be assigned by counsel or the party.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.51  Restricted access.

    On his/her own motion, or on the motion of any party, the 
Administrative Law Judge may direct that there be a restricted access 
portion of the record to contain any material in the record to which 
public access is restricted by law or by the terms of a protective order 
entered in the proceedings. This portion of the record shall be placed 
in a separate file and clearly marked to avoid improper disclosure and 
to identify it as a portion of the official record in the proceedings.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.52  Final order of the Administrative Law Judge.

    (a) Proposed final order. (1) Within twenty (20) days of filing of 
the transcript of the testimony, or within such additional time as the 
Administrative Law Judge may allow, the Administrative Law Judge may 
require the parties to file proposed findings of fact, conclusions of 
law, and orders, together with supporting briefs expressing the reasons 
for such proposals. Such proposals and briefs shall be served on all 
parties and shall refer to all portions of the record and to all 
authorities relied upon in support of each proposal.
    (2) The Administrative Law Judge may, by order, require that when a 
proposed order is filed for the Administrative Law Judge's 
consideration, the filing party shall submit to the Administrative Law 
Judge a copy of the proposed order on a 3.5 
microdisk.
    (b) Entry of final order. Unless an extension of time is given by 
the Chief Administrative Hearing Officer for good cause, the 
Administrative Law Judge shall enter the final order within sixty (60) 
days after receipt of the hearing transcript or of post-hearing briefs, 
proposed findings of fact, and conclusions of law, if any, by the 
Administrative Law Judge. The final order entered by the Administrative 
Law Judge shall be based upon the whole record. It shall be supported by 
reliable and probative evidence. The standard of proof shall be by a 
preponderance of the evidence.
    (c) Contents of final order with respect to unlawful employment of 
unauthorized aliens. (1) If, upon the preponderance of the evidence, the 
Administrative Law Judge determines that a person or entity named in the 
complaint has violated section 274A(a)(1)(A) or (a)(2) of the INA, the 
final order shall require the person or entity to cease and desist from 
such violations and to pay a civil penalty in an amount of:
    (i) Not less than $250 and not more than $2,000 for each 
unauthorized alien with respect to whom there was a violation of either 
such paragraph occurring before March 15, 1999; not less than $275 and 
not more than $2,200 for each unauthorized alien with respect to whom 
there was a violation of either such paragraph ccurring on or after 
March 15, 1999;
    (ii) In the case or a person or entity previously subject to one 
final order under this paragraph (c)(1), not less than $2,000 and not 
more than $5,000 for each unauthorized alien with respect to whom there 
was a violation of either such paragraph occurring before March 15, 
1999, and not less than $2,200 and not more than $5,500 for each 
unauthorized alien with respect to whom there was a violation of either 
such paragraph occurring on or after March 15, 1999; or
    (iii) In the case of a person or entity previously subject to more 
than one final order under paragraph (c)(1) of this section, not less 
than $3,000 and not more than $10,000 for each unauthorized alien with 
respect to whom there was a violation of each such paragraph occurring 
before March 15, 1999, and not less than $3,300 and not more than 
$11,000 for each unauthorized alien with respect to whom there was a 
violation of each such paragraph occurring on or after March 15, 1999.
    (2) The final order may also require the respondent to participate 
in, and comply with the terms of, one of the

[[Page 239]]

pilot programs set forth in Pub. L. 104-208, Div. C, sections 401-05, 
110 Stat. 3009, 3009-655 to 3009-665 (1996) (codified at 8 U.S.C. 1324a 
(note)), with respect to the respondent's hiring or recruitment or 
referral of individuals in a state (as defined in section 101(a)(36) of 
the INA) covered by such a program.
    (3) The final order may also require the respondent to comply with 
the requirements of section 274A(b) of the INA with respect to 
individuals hired (or recruited or referred for employment for a fee) 
during a period of up to three years; and to take such other remedial 
action as is appropriate.
    (4) In the case of a person or entity composed of distinct, 
physically separate subdivisions, each of which provides separately for 
the hiring, recruiting, or referring for employment, without reference 
to the practices of, and under the control of, or common control with, 
another subdivision, each such subdivision shall be considered a 
separate person or entity.
    (5) If, upon a preponderance of the evidence, the Administrative Law 
Judge determines that a person or entity named in the complaint has 
violated section 274A(a)(1)(B) of the INA, except as set forth in 
paragraph (c)(6) of this section, the final order under this paragraph 
shall require the person or entity to pay a civil penalty in an amount 
of not less than $100 and not more than $1,000 for each individual with 
respect to whom such violation occurred before March 15, 1999, and not 
less than $110 and not more than $1,100 for each individual with respect 
to whom such violation occurred on or after March 15, 1999. In 
determining the amount of the penalty, due consideration shall be given 
to the size of the business of the employer being charged, the good 
faith of the employer, the seriousness of the violation, whether or not 
the individual was an unauthorized alien, and the history of previous 
violations.
    (6) With respect to a violation of section 274A(a)(1)(B) of the INA 
where a person or entity participating in a pilot program has failed to 
provide notice of final nonconfirmation of employment eligibility of an 
individual to the Attorney General as required by Pub. L. 104-208, Div. 
C, section 403(a)(4)(C), 110 Stat. 3009, 3009-661 (1996) (codified at 8 
U.S.C. 1324a (note)), the final order under this paragraph shall require 
the person or entity to pay a civil penalty in an amount of not less 
than $500 and not more than $1,000 for each individual with respect to 
whom such violation occurred.
    (7) Prohibition of indemnity bond cases. If, upon the preponderance 
of the evidence, the Administrative Law Judge determines that a person 
or entity has violated section 274A(g)(1) of the INA, the final order 
shall require the person or entity to pay a civil penalty of $1,000 for 
each individual with respect to whom such violation occurred before 
March 15, 1999, and $1,100 for each individual with respect to whom such 
violation occurred on or after March 15, 1999, and require the return of 
any amounts received in such violation to the individual or, if the 
individual cannot be located, to the general fund of the Treasury.
    (8) Adjustment of penalties for inflation. The civil penalties cited 
in paragraph (c) of this section shall be subject to adjustments for 
inflation at least every four years in accordance with the Debt 
Collection Improvement Act.
    (9) Attorney's fees. A prevailing respondent may receive, pursuant 
to 5 U.S.C. 504, an award of attorney's fees in unlawful employment and 
prohibition of indemnity bond cases. Any application for attorney's fees 
shall be accompanied by an itemized statement from the attorney or 
representative, stating the actual time expended and the rate at which 
fees and other expenses were computed. An award of attorney's fees will 
not be made if the Administrative Law Judge determines that the 
complainant's position was substantially justified or special 
circumstances make the award unjust.
    (d) Contents of final order with respect to unfair immigration-
related employment practice cases. (1) If, upon the preponderance of the 
evidence, the Administrative Law Judge determines that any person or 
entity named in the complaint has engaged in or is engaging in an unfair 
immigration-related employment practice, the final order shall include a 
requirement that the person or entity cease and desist from such 
practice. The final order may also require the person or entity:

[[Page 240]]

    (i) To comply with the requirements of section 274A(b) of the INA 
with respect to individuals hired (or recruited or referred for 
employment for a fee) during a period of up to three years;
    (ii) To retain for a period of up to three years, and only for 
purposes consistent with section 274A(b)(5) of the INA, the name and 
address of each individual who applies, in person or in writing, for 
hiring for an existing position, or for recruiting or referring for a 
fee, for employment in the United States;
    (iii) To hire individuals directly and adversely affected, with or 
without back pay;
    (iv) To post notices to employees about their rights under section 
274B and employers' obligations under section 274A;
    (v) To educate all personnel involved in hiring and in complying 
with section 274A or 274B about the requirements of 274A or 274B;
    (vi) To order, in an appropriate case, the removal of a false 
performance review or false warning from an employee's personnel file;
    (vii) To order, in an appropriate case, the lifting of any 
restrictions on an employee's assignments, work shifts, or movements;
    (viii) Except as provided in paragraph (d)(1)(xii) of this section, 
to pay a civil penalty of not less than $250 and not more than $2,000 
for each individual discriminated against before March 15, 1999, and not 
less than $275 and not more than $2,200 for each individual 
discriminated against on or after March 15, 1999;
    (ix) Except as provided in paragraph (d)(1)(xii) of this section, in 
the case of a person or entity previously subject to a single final 
order under section 274B(g)(2) of the INA, to pay a civil penalty of not 
less than $2,000 and not more than $5,000 for each individual 
discriminated against before March 15, 1999, and not less than $2,200 
and not more than $5,500 for each individual discriminated against on or 
after March 15, 1999;
    (x) Except as provided in paragraph (d)(1)(xii) of this section, in 
the case of a person or entity previously subject to more than one final 
order under section 274B(g)(2) of the INA, to pay a civil penalty of not 
less than $3,000 and not more than $10,000 for each individual 
discriminated against before March 15, 1999, and not less than $3,300 
and not more than $11,000 for each individual discriminated against on 
or after March 15, 1999;
    (xi) To participate in, and comply with the terms of, one of the 
pilot programs set forth in Pub. L. 104-208, Div. C, sections 401-05, 
110 Stat. 3009, 3009-655 to 3009-665 (1996) (codified at 8 U.S.C. 1324a 
(note)), with respect to the respondent's hiring or recruitment or 
referral of individuals in a state (as defined in section 101(a)(36) of 
the INA) covered by such a program; and
    (xii) In the case of an unfair immigration-related employment 
practice where a person or entity, for the purpose or with the intent of 
discriminating against an individual in violation of section 274B(a), 
requests more or different documents than are required under section 
274A(b) or refuses to honor documents that on their face reasonably 
appear to be genuine, to pay a civil penalty of not less than $100 and 
not more than $1,000 for each individual discriminated against before 
March 15, 1999, and not less than $110 and not more than $1,100 for each 
individual discriminated against on or after March 15, 1999, or to order 
any of the remedies listed as paragraphs (d)(1)(i) through (d)(1)(vii) 
of this section.
    (2) The civil penalties cited in paragraph (d) of this section shall 
be subject to adjustments for inflation at least every four years in 
accordance with the Debt Collection Improvement Act.
    (3) Back pay liability shall not accrue from a date more than two 
years prior to the date of the filing of a charge with the Special 
Counsel. In no event shall back pay accrue from before November 6, 1986. 
Interim earnings or amounts earnable with reasonable diligence by the 
individual or individuals discriminated against shall operate to reduce 
the back pay otherwise allowable. No order shall require the hiring of 
an individual as an employee, or the payment to an individual of any 
back pay, if the individual was refused employment for any reason other 
than discrimination on account of national

[[Page 241]]

origin or citizenship status unless it is determined that an unfair 
immigration-related employment practice exists under section 274B(a)(5) 
of the INA.
    (4) In applying paragraph (d) of this section in the case of a 
person or entity composed of distinct, physically separate subdivisions, 
each of which provides separately for the hiring, recruiting, or 
referring for employment, without reference to the practices of, and not 
under the control of or common control with another subdivision, each 
such subdivision shall be considered a separate person or entity.
    (5) If, upon the preponderance of the evidence, the Administrative 
Law Judge determines that a person or entity named in the complaint has 
not engaged in and is not engaging in an unfair immigration-related 
employment practice, then the final order shall dismiss the complaint.
    (6) Attorney's fees. The Administrative Law Judge in his or her 
discretion may allow a prevailing party, other than the United States, a 
reasonable attorney's fee if the losing party's argument is without 
reasonable foundation in law and fact. Any application for attorney's 
fees shall be accompanied by an itemized statement from the attorney or 
representative stating the actual time expended and the rate at which 
fees and other expenses were computed.
    (e) Contents of final order with respect to document fraud cases. 
(1) If, upon the preponderance of the evidence, the Administrative Law 
Judge determines that a person or entity has violated section 274C of 
the INA, the final order shall include a requirement that the respondent 
cease and desist from such violations and pay a civil money penalty in 
an amount of:
    (i) Not less than $250 and not more than $2,000 for each document 
that is the subject of a violation under section 274C(a)(1) through (6) 
of the INA before March 15, 1999, and not less than $275 and not more 
than $2,200 for each document that is the subject of a violation under 
section 274C(a)(1) through (6) of the INA on or after March 15, 1999; 
or,
    (ii) In the case of a respondent previously subject to one or more 
final orders under section 274C(d)(3) of the INA, not less than $2,000 
and not more than $5,000 for each document that is the subject of a 
violation under section 274C(a)(1) through (6) of the INA before March 
15, 1999, and not less than $2,200 and not more than $5,500 for each 
document that is the subject of a violation under section 274C(a) (1) 
through (6) of the INA on or after March 15, 1999.
    (2) In the case of a person or entity composed of distinct, 
physically separate subdivisions, each of which provides separately for 
the hiring, recruiting, or referring for employment, without reference 
to the practices of, and under the control of, or common control with, 
another subdivision, each such subdivision shall be considered a 
separate person or entity.
    (3) Adjustment of penalties for inflation. The civil penalties cited 
in paragraph (e) of this section shall be subject to adjustments for 
inflation at least every four years in accordance with the Debt 
Collection Improvement Act.
    (4) Attorney's fees. A prevailing respondent may receive, pursuant 
to 5 U.S.C. 504, an award of attorney's fees in document fraud cases. 
Any application for attorney's fees shall be accompanied by an itemized 
statement from the attorney or representative, stating the actual time 
expended and the rate at which fees and other expenses were computed. An 
award of attorney's fees shall not be made if the Administrative Law 
Judge determines that the complainant's position was substantially 
justified or special circumstances make the award unjust.
    (f) Corrections to orders. An Administrative Law Judge may, in the 
interest of justice, correct any clerical mistakes or typographical 
errors contained in a final order entered in a case arising under 
section 274A or 274C of the INA at any time within thirty (30) days 
after the entry of the final order. Changes other than clerical mistakes 
or typographical errors will be considered in cases arising under 
sections 274A and 274C of the INA by filing a request for review to the 
Chief Administrative Hearing Officer by a party under Sec. 68.54, or the 
Chief Administrative Hearing Officer may exercise discretionary review 
to make such changes pursuant to Sec. 68.54. In cases arising under 
section 274B of the INA,

[[Page 242]]

an Administrative Law Judge may correct any substantive, clerical, or 
typographical errors or mistakes in a final order at any time within 
sixty (60) days after the entry of the final order.
    (g) Final agency order. In a case arising under section 274A or 274C 
of the INA, the Administrative Law Judge's order becomes the final 
agency order sixty (60) days after the date of the Administrative Law 
Judge's order, unless the Chief Administrative Hearing Officer modifies, 
vacates, or remands the Administrative Law Judge's final order pursuant 
to Sec. 68.54, or unless the order is referred to the Attorney General 
pursuant to Sec. 68.55. In a case arising under section 274B of the INA, 
the Administrative Law Judge's order becomes the final agency order on 
the date the order is issued.

[Order No. 2203-99, 64 FR 7079, Feb. 12, 1999, as amended by Order No. 
2255-99, 64 FR 49660, Sept. 14, 1999]



Sec. 68.53  Review of an interlocutory order of an Administrative Law Judge in cases arising under section 274A or 274C.

    (a) Authority. In a case arising under section 274A or 274C of the 
Immigration and Nationality Act, the Chief Administrative Hearing 
Officer may, within thirty (30) days of the date of an Administrative 
Law Judge's interlocutory order, issue an order that modifies or vacates 
the interlocutory order. The Chief Administrative Hearing Officer may 
review an Administrative Law Judge's interlocutory order if:
    (1) An Administrative Law Judge, when issuing an interlocutory 
order, states in writing that the Judge believes:
    (i) That the order concerns an important question of law on which 
there is a substantial difference of opinion; and
    (ii) That an immediate appeal will advance the ultimate termination 
of the proceeding or that subsequent review will be an inadequate 
remedy; or
    (2) Within ten (10) days of the date of the entry of an 
interlocutory order a party requests by motion that the Chief 
Administrative Hearing Officer review the interlocutory order. This 
motion shall contain a clear statement of why interlocutory review is 
appropriate under the standards set out in paragraph (a)(1) of this 
section; or
    (3) Within ten (10) days of the entry of the interlocutory order, 
the Chief Administrative Hearing Officer, upon the Officer's own 
initiative, determines that such order is appropriate for interlocutory 
review pursuant to the standards set out in paragraph (a)(1) and issues 
a notification of review. This notification shall state the issues to be 
reviewed.
    (b) Stay of proceedings. Review of an Administrative Law Judge's 
interlocutory order will not stay the proceeding unless the 
Administrative Law Judge or the Chief Administrative Hearing Officer 
determines that the circumstances require a postponement.
    (c) Review by Chief Administrative Hearing Officer. Review by the 
Chief Administrative Hearing Officer of an interlocutory order shall be 
conducted in the same manner as is provided for review of final orders 
in Sec. 68.54(b) through (d). An interlocutory order, or an order 
modifying, vacating, or remanding an interlocutory order, shall not be 
considered a final agency order. If the Chief Administrative Hearing 
Officer does not modify, vacate, or remand an interlocutory order 
reviewed pursuant to paragraph (a) within thirty (30) days of the date 
that the order is entered, the Administrative Law Judge's interlocutory 
order is deemed adopted.
    (d) Effect of interlocutory review. (1) An order by the Chief 
Administrative Hearing Officer modifying or vacating an interlocutory 
order shall also remand the case to the Administrative Law Judge. 
Further proceedings in the case shall be conducted consistent with the 
Chief Administrative Hearing Officer's order.
    (2) Whether or not an interlocutory order is reviewed by the Chief 
Administrative Hearing Officer, all parties retain the right to request 
administrative review of the final order of the Administrative Law Judge 
pursuant to Sec. 68.54 with respect to all issues in the case.

[Order No. 2203-99, 64 FR 7081, Feb. 12, 1999]

[[Page 243]]



Sec. 68.54  Administrative review of a final order of an Administrative Law Judge in cases arising under section 274A or 274C.

    (a) Authority of the Chief Administrative Hearing Officer. In a case 
arising under section 274A or 274C of the INA, the Chief Administrative 
Hearing Officer has discretionary authority, pursuant to sections 
274A(e)(7) and 274C(d)(4) of the INA and 5 U.S.C. 557, to review any 
final order of an Administrative Law Judge in accordance with the 
provisions of this section.
    (1) A party may file with the Chief Administrative Hearing Officer a 
written request for administrative review within ten (10) days of the 
date of entry of the Administrative Law Judge's final order, stating the 
reasons for or basis upon which it seeks review.
    (2) The Chief Administrative Hearing Officer may review an 
Administrative Law Judge's final order on his or her own initiative by 
issuing a notification of administrative review within ten (10) days of 
the date of entry of the Administrative Law Judge's order. This 
notification shall state the issues to be reviewed.
    (b) Written and oral arguments. (1) In any case in which 
administrative review has been requested or ordered pursuant to 
paragraph (a) of this section, the parties may file briefs or other 
written statements within twenty-one (21) days of the date of entry of 
the Administrative Law Judge's order.
    (2) At the request of a party, or on the Officer's own initiative, 
the Chief Administrative Hearing Officer may, at the Officer's 
discretion, permit or require additional filings or may conduct oral 
argument in person or telephonically.
    (c) Filing and service of documents relating to administrative 
review. All requests for administrative review, briefs, and other 
filings relating to review by the Chief Administrative Hearing Officer 
shall be filed and served by facsimile or same-day hand delivery, or if 
such filing or service cannot be made, by overnight delivery, as 
provided in Sec. 68.6(c). A notification of administrative review by the 
Chief Administrative Hearing Officer shall also be served by facsimile 
or same-day hand delivery, or if such service cannot be made, by 
overnight delivery service.
    (d) Review by the Chief Administrative Hearing Officer. (1) On or 
before thirty (30) days subsequent to the date of entry of the 
Administrative Law Judge's final order, but not before the time for 
filing briefs has expired, the Chief Administrative Hearing Officer may 
enter an order that modifies or vacates the Administrative Law Judge's 
order, or remands the case to the Administrative Law Judge for further 
proceedings consistent with the Chief Administrative Hearing Officer's 
order. However, the Chief Administrative Hearing Officer is not 
obligated to enter an order unless the Administrative Law Judge's order 
is modified, vacated or remanded.
    (2) If the Chief Administrative Hearing Officer enters an order that 
remands the case to the Administrative Law Judge, the Administrative Law 
Judge will conduct further proceedings consistent with the Chief 
Administrative Hearing Officer's order. Any administrative review of the 
Administrative Law Judge's subsequent order shall be conducted in 
accordance with this section.
    (3) The Chief Administrative Hearing Officer may make technical 
corrections to the Officer's order up to and including thirty (30) days 
subsequent to the issuance of that order.
    (e) Final agency order. If the Chief Administrative Hearing Officer 
enters a final order that modifies or vacates the Administrative Law 
Judge's final order, and the Chief Administrative Hearing Officer's 
order is not referred to the Attorney General pursuant to Sec. 68.55, 
the Chief Administrative Hearing Officer's order becomes the final 
agency order thirty (30) days subsequent to the date of the modification 
or vacation.

[Order No. 2203-99, 64 FR 7082, Feb. 12, 1999]



Sec. 68.55  Referral of cases arising under sections 274A or 274C to the Attorney General for review.

    (a) Referral of cases by direction of the Attorney General. Within 
thirty (30) days of the entry of a final order by the Chief 
Administrative Hearing Officer modifying or vacating an Administrative 
Law Judge's final order, or within

[[Page 244]]

sixty (60) days of the entry of an Administrative Law Judge's final 
order, if the Chief Administrative Hearing Officer does not modify or 
vacate the Administrative Law Judge's final order, the Chief 
Administrative Hearing Officer shall promptly refer to the Attorney 
General for review any final order in cases arising under section 274A 
or 274C of the INA if the Attorney General so directs the Chief 
Administrative Hearing Officer. When a final order is referred to the 
Attorney General in accordance with this paragraph, the Chief 
Administrative Hearing Officer shall give the Administrative Law Judge 
and all parties a copy of the referral.
    (b) Request by Commissioner of Immigration and Naturalization for 
review by the Attorney General. The Chief Administrative Hearing Officer 
shall promptly refer to the Attorney General for review any final order 
in cases arising under sections 274A or 274C of the INA at the request 
of the Commissioner of Immigration and Naturalization within thirty (30) 
days of the entry of a final order modifying or vacating the 
Administrative Law Judge's final order or within sixty (60) days of the 
entry of an Administrative Law Judge's final order, if the Chief 
Administrative Hearing Officer does not modify or vacate the 
Administrative Law Judge's final order.
    (1) The Immigration and Naturalization Service must first seek 
review of an Administrative Law Judge's final order by the Chief 
Administrative Hearing Officer, in accordance with Sec. 68.54 before the 
Commissioner of Immigration and Naturalization may request that an 
Administrative Law Judge's final order be referred to the Attorney 
General for review.
    (2) To request referral of a final order to the Attorney General, 
the Commissioner of Immigration and Naturalization must submit a written 
request to the Chief Administrative Hearing Officer and transmit copies 
of the request to all other parties to the case and to the 
Administrative Law Judge at the time the request is made. The written 
statement shall contain a succinct statement of the reasons the case 
should be reviewed by the Attorney General and the grounds for appeal.
    (3) The Attorney General, in the exercise of the Attorney General's 
discretion, may accept the Commissioner's request for referral of the 
case for review by issuing a written notice of acceptance within sixty 
(60) days of the date of the request. Copies of such written notice 
shall be transmitted to all parties in the case and to the Chief 
Administrative Hearing Officer.
    (c) Review by the Attorney General. When a final order of an 
Administrative Law Judge or the Chief Administrative Hearing Officer is 
referred to the Attorney General pursuant to paragraph (a) of this 
section, or a referral is accepted in accordance with paragraph (b)(3) 
of this section, the Attorney General shall review the final order 
pursuant to section 274A(e)(7) or 274C(d)(4) of the INA and 5 U.S.C. 
557. No specific time limit is established for the Attorney General's 
review.
    (1) All parties shall be given the opportunity to submit briefs or 
other written statements pursuant to a schedule established by the Chief 
Administrative Hearing Officer or the Attorney General.
    (2) The Attorney General shall enter an order that adopts, modifies, 
vacates, or remands the final order under review. The Attorney General's 
order shall be stated in writing and shall be transmitted to all parties 
in the case and to the Chief Administrative Hearing Officer.
    (3) If the Attorney General remands the case for further 
administrative proceedings, the Chief Administrative Hearing Officer or 
the Administrative Law Judge shall conduct further proceedings 
consistent with the Attorney General's order. Any subsequent final order 
of the Administrative Law Judge or the Chief Administrative Hearing 
Officer shall be subject to administrative review in accordance with 
Sec. 68.54 and this section.
    (d) Final agency order. (1) The Attorney General's order pursuant to 
paragraph (c) of this section (other than a remand as provided in 
paragraph (c)(3)) shall become the final agency order on the date of the 
Attorney General's order.
    (2) If the Attorney General declines the Commissioner's request for 
referral of a case pursuant to paragraph (b) of

[[Page 245]]

this section, or does not issue a written notice of acceptance within 
sixty (60) days of the date of the Commissioner's request, then the 
final order of the Administrative Law Judge or the Chief Administrative 
Hearing Officer that was the subject of a referral pursuant to paragraph 
(b) shall become the final agency order on the day after that sixty (60) 
day period has expired.

[Order No. 2203-99, 64 FR 7082, Feb. 12, 1999]



Sec. 68.56  Judicial review of a final agency order in cases arising under section 274A or 274C.

    A person or entity adversely affected by a final agency order may 
file, within forty-five (45) days after the date of the final agency 
order, a petition in the United States Court of Appeals for the 
appropriate circuit for review of the final agency order. Failure to 
request review by the Chief Administrative Hearing Officer of a final 
order by an Administrative Law Judge shall not prevent a party from 
seeking judicial review.

[Order No. 2203-99, 64 FR 7083, Feb. 12, 1999]



Sec. 68.57  Judicial review of the final agency order of an Administrative Law Judge in cases arising under section 274B.

    Any person aggrieved by a final agency order issued under 
Sec. 68.52(d) may, within sixty (60) days after entry of the order, seek 
review of the final agency order in the United States Court of Appeals 
for the circuit in which the violation is alleged to have occurred or in 
which the employer resides or transacts business. If a final agency 
order issued under Sec. 68.52(d) is not appealed, the Special Counsel 
(or, if the Special Counsel fails to act, the person filing the charge, 
other than the Immigration and Naturalization Service officer) may file 
a petition in the United States District Court for the district in which 
the violation that is the subject of the final agency order is alleged 
to have occurred, or in which the respondent resides or transacts 
business, requesting that the order be enforced.

[Order No. 2203-99, 64 FR 7083, Feb. 12, 1999]



Sec. 68.58  Filing of the official record.

    Upon timely receipt of notification that an appeal has been taken, a 
certified copy of the record will be filed promptly with the appropriate 
United States Court.

[Order No. 2203-99, 64 FR 7083, Feb. 12, 1999]



PART 69--NEW RESTRICTIONS ON LOBBYING--Table of Contents




                           Subpart A--General

Sec.
69.100  Conditions on use of funds.
69.105  Definitions.
69.110  Certification and disclosure.

                 Subpart B--Activities by Own Employees

69.200  Agency and legislative liaison.
69.205  Professional and technical services.
69.210  Reporting.

            Subpart C--Activities by Other Than Own Employees

69.300  Professional and technical services.

                  Subpart D--Penalties and Enforcement

69.400  Penalties.
69.405  Penalty procedures.
69.410  Enforcement.

                          Subpart E--Exemptions

69.500  Secretary of Defense.

                        Subpart F--Agency Reports

69.600  Semi-annual compilation.
69.605  Inspector General report.

Appendix A to Part 69--Certification Regarding Lobbying
Appendix B to Part 69--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Public Law 101-121 (31 U.S.C. 1352); [citation 
to Agency rulemaking authority].

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.

    Source: 55 FR 6737 and 6751, Feb. 26, 1990, unless otherwise noted.



                           Subpart A--General



Sec. 69.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative

[[Page 246]]

ageement to pay any person for influencing or attempting to influence an 
officer or employee of any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any of the following covered Federal actions: the 
awarding of any Federal contract, the making of any Federal grant, the 
making of any Federal loan, the entering into of any cooperative 
agreement, and the extension, continuation, renewal, amendment, or 
modification of any Federal contract, grant, loan, or cooperative 
agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 69.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4

[[Page 247]]

of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 
450B). Alaskan Natives are included under the definitions of Indian 
tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.

[[Page 248]]



Sec. 69.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                 Subpart B--Activities by Own Employees



Sec. 69.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 69.100 
(a), does

[[Page 249]]

not apply in the case of a payment of reasonable compensation made to an 
officer or employee of a person requesting or receiving a Federal 
contract, grant, loan, or cooperative agreement if the payment is for 
agency and legislative liaison activities not directly related to a 
covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 69.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 69.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement or an extension, 
continuation, renewal, amendment, or modification of a Federal contract, 
grant, loan, or cooperative agreement if payment is for professional or 
technical services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission

[[Page 250]]

or negotiation of a covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 69.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C--Activities by Other Than Own Employees



Sec. 69.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 69.100 
(a), does not apply in the case of any reasonable payment to a person, 
other than an officer or employee of a person requesting or receiving a 
covered Federal action, if the payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 69.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                  Subpart D--Penalties and Enforcement



Sec. 69.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than

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$10,000 and not more than $100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 69.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec. 69.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E--Exemptions



Sec. 69.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F--Agency Reports



Sec. 69.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to

[[Page 252]]

the Committee on Foreign Relations of the Senate and the Committee on 
Foreign Affairs of the House of Representatives or the Committees on 
Armed Services of the Senate and the House of Representatives (whichever 
such committees have jurisdiction of matters involving such information) 
and to the Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 69.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

         Appendix A to Part 69--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a

[[Page 253]]

civil penalty of not less than $10,000 and not more than $100,000 for 
each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 254]]

        Appendix B to Part 69--Disclosure Form to Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC21OC91.027


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[GRAPHIC] [TIFF OMITTED] TC21OC91.028


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[GRAPHIC] [TIFF OMITTED] TC21OC91.029


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  PART 70--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS (INCLUDING SUBAWARDS) WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS AND OTHER NON-
PROFIT ORGANIZATIONS--Table of Contents




                           Subpart A--General

Sec.
70.1  Purpose and applicability.
70.2  Definitions.
70.3  Effect on other issuances.
70.4  Deviations.
70.5  Subawards.

                    Subpart B--Pre-Award Requirements

70.10  Purpose.
70.11  Pre-award policies.
70.12  Forms for applying for Federal assistance.
70.13  Debarment and suspension.
70.14  Special award conditions.
70.15  Metric system of measurement.
70.16  Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 
          codified at 42 U.S.C. 6962).
70.17  Certifications and representations.

                   Subpart C--Post-Award Requirements

                    Financial and Program Management

70.20  Purpose of financial and program management.
70.21  Standards for financial management systems.
70.22  Payment.
70.23  Cost sharing or matching.
70.24  Program income.
70.25  Revision of budget and program plans.
70.26  Non-Federal audits.
70.27  Allowable costs.
70.28  Period of availability of funds.

                           Property Standards

70.30  Purpose of property standards.
70.31  Insurance coverage.
70.32  Real property.
70.33  Federally-owned and exempt property.
70.34  Equipment.
70.35  Supplies and other expendable property.
70.36  Intangible property.
70.37  Property trust relationship.

                          Procurement Standards

70.40  Purpose of procurement standards.
70.41  Recipient responsibilities.
70.42  Codes of conduct.
70.43  Competition.
70.44  Procurement procedures.
70.45  Cost and price analysis.
70.46  Procurement records.
70.47  Contract administration.
70.48  Contract provisions.

                           Reports and Records

70.50  Purpose of reports and records.
70.51  Monitoring and reporting program performance.
70.52  Financial reporting.
70.53  Retention and access requirements for records.

                       Termination and Enforcement

70.60  Purpose of termination and enforcement.
70.61  Termination.
70.62  Enforcement.

                 Subpart D--After-the-Award Requirements

70.70  Purpose.
70.71  Closeout procedures.
70.72  Subsequent adjustments and continuing responsibilities.
70.73  Collection of amounts due.

Appendix A to Part 70--Contract Provisions

    Authority: 5 U.S.C. 301; the Omnibus Crime Control and Safe Streets 
Act of 1968, 42 U.S.C. 3711, et seq. (as amended); Juvenile Justice and 
Delinquency Prevention Act of 1974, 42 U.S.C. 5601, et seq. (as 
amended); Victims of Crime Act of 1984, 42 U.S.C. 10601, et seq. (as 
amended); 18 U.S.C. 4042, 4351-4353; OMB Circular A-110 (64 FR 54926, 
October 8, 1999).

    Source: Order No. 1980-95, 60 FR 38242, July 26, 1995, unless 
otherwise noted.



                           Subpart A--General



Sec. 70.1  Purpose and applicability.

    This part establishes uniform administrative requirements for the 
Department grants and agreements awarded to institutions of higher 
education, hospitals, and other non-profit organizations. It also 
establishes rules governing how State, local and Indian tribal 
governments shall administer subawards to nongovernmental entities.



Sec. 70.2  Definitions.

    (a) Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;

[[Page 258]]

    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    (b) Accrued income means the sum of:
    (1) Earnings during a given period from
    (i) Services performed by the recipient, and
    (ii) Goods and other tangible property delivered to purchasers, and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    (c) Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    (d) Advance means a payment made by Treasury check or other 
appropriate payment mechanism to a recipient upon its request either 
before outlays are made by the recipient or through the use of 
predetermined payment schedules.
    (e) Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Department to an eligible recipient. The term does not include: 
Technical assistance, which provides services instead of money; other 
assistance in the form of loans, loan guarantees, interest subsidies, or 
insurance; direct payments of any kind to individuals; and, contracts 
which are required to be entered into and administered under procurement 
laws and regulations.
    (f) Cash contributions means the recipient's cash outlay, including 
the outlay of money contributed to the recipient by third parties.
    (g) Closeout means the process by which the Department determines 
that all applicable administrative actions and all required work of the 
award have been completed by the recipient and the Department.
    (h) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (i) Cost sharing or matching means the portion of project or program 
costs not borne by the Federal Government.
    (j) The Department refers to the United States Department of Justice 
awarding agencies, which include the Office of Justice Programs (OJP), 
Community Relation Service (CRS), United States Marshals Service (USMS), 
National Institute of Corrections (NIC), Office of Special Counsel 
(OSC), and the Civil Rights Division (CRD).
    (k) Date of completion means the date on which all work under an 
award is completed or the date on the award document, or any supplement 
or amendment thereto, on which the Department sponsorship ends.
    (l) Disallowed costs means those charges to an award that the 
Department determines to be unallowable, in accordance with the 
applicable Federal cost principles or other terms and conditions 
contained in the award.
    (m) Equipment means tangible nonexpendable personal property 
including exempt property charged directly to the award having a useful 
life of more than one year and an acquisition cost of $5000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established.
    (n) Excess property means property under the control of the 
Department that, as determined by the head thereof, is no longer 
required for its needs or the discharge of its responsibilities.
    (o) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds, where the Department has statutory 
authority to vest title in the recipient without further obligation to 
the Federal Government. An example of exempt property authority is 
contained in the Federal Grant and Cooperative Agreement Act (31 U.S.C. 
6306), for property acquired under an award to conduct basic or applied 
research by a non-profit institution of higher education or non-profit

[[Page 259]]

organization whose principal purpose is conducting scientific research.
    (p) Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by agency regulations or agency 
implementing instructions.
    (q) Federal share of real property, equipment, or supplies means 
that percentage of the property's acquisition costs and any improvement 
expenditures paid with Federal funds.
    (r) Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    (s) Independent Research and Development costs means research and 
development conducted by an organization which is not sponsored by 
Federal or non-Federal awards, contracts, or other agreements.
    (t) Intangible property and debt instruments means, but is not 
limited to, trademarks, copyrights, patents and patent applications and 
such property as loans, notes and other debt instruments, lease 
agreements, stock and other instruments of property ownership, whether 
considered tangible or intangible.
    (u) Obligations means the amounts of orders placed, contracts and 
grants awarded, services received and similar transactions during a 
given period that require payment by the recipient during the same or a 
future period.
    (v) Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    (w) Personal property means property of any kind except real 
property. It may be tangible, having physical existence, or intangible, 
having no physical existence, such as copyrights, patents, or 
securities.
    (x) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (y) Program income means gross income earned by the recipient that 
is directly generated by a supported activity or earned as a result of 
the award (see exclusions in Sec. 70.24 (e) and (h)). Program income 
includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
Federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patents and copyrights, 
interest on loans made with award funds, and income from asset 
forfeitures accounted for from the time of seizure. Interest earned on 
advances of Federal funds is not program income. Except as otherwise 
provided in the Department regulations or the terms and conditions of 
the award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    (z) Project costs means all allowable costs, as set forth in the 
applicable Federal costs principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    (aa) Project period means the period established in the award 
document during which Federal sponsorship begins and ends.
    (bb) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.
    (cc) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment.

[[Page 260]]

    (dd) Recipient means an organization receiving financial assistance 
directly from the Department to carry out a project or program. The term 
includes public and private institutions of higher education, public and 
private hospitals, and other quasi-public and private non-profit 
organizations such as, but not limited to, community action agencies, 
research institutes, educational associations, and health centers. The 
term may include commercial organizations, foreign or international 
organizations (such as agencies of the United Nations) which are 
recipients, subrecipients, or contractors or subcontractors of 
recipients or subrecipients at the discretion of the Department. The 
term does not include government-owned contractor-operated facilities or 
research centers providing continued support for mission-oriented, 
large-scale programs that are government-owned or controlled, or are 
designed as Federally-funded research and development centers.
    (ee) Research and development means all research activities, both 
basic and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions. Research is 
defined as a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. ``Development'' is 
the systematic use of knowledge and understanding gained from research 
directed toward the production of useful materials, devices, systems, or 
methods, including design and development of prototypes and processes. 
The term research also includes activities involving the training of 
individuals in research techniques where such activities utilize the 
same facilities as other research and development activities and where 
such activities are not included in the instruction function.
    (ff) Small awards means a grant or cooperative agreement not 
exceeding the simplified acquisition threshold fixed at 41 U.S.C. 
403(11) (currently $100,000).
    (gg) Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded from the definition of 
``award'' in Sec. 70.2(e).
    (hh) Subrecipient means the legal entity to which a subaward is made 
and which is accountable to the recipient for the use of the funds 
provided. The term may include foreign or international organizations 
(such as agencies of the United Nations) at the discretion of the 
Department.
    (ii) Supplies means all personal property excluding equipment, 
intangible property, and debt instruments as defined in this section, 
and inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    (jj) Suspension means an action by the Department that temporarily 
withdraws the Department sponsorship under an award, pending corrective 
action by the recipient or pending a decision to terminate the award by 
the Department. Suspension of an award is a separate action from 
suspension under the Department regulations implementing Exec. Order No. 
12549 and 12689, ``Debarment and Suspension.''
    (kk) Termination means the cancellation of the Department 
sponsorship, in whole or in part, under an agreement at any time prior 
to the date of completion.
    (ll) Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    (mm) Unliquidated obligations, for financial reports prepared on a 
cash basis, means the amount of obligations incurred by the recipient 
that have not been paid. For reports prepared on an

[[Page 261]]

accrued expenditure basis, they represent the amount of obligations 
incurred by the recipient for which an outlay has not been recorded.
    (nn) Unobligated balance means the portion of the funds authorized 
by the Department that has not been obligated by the recipient and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.
    (oo) Unrecovered indirect cost means the difference between the 
amount awarded and the amount which could have been awarded under the 
recipient's approved negotiated indirect cost rate.
    (pp) Working capital advance means a procedure where by funds are 
advanced to the recipient to cover its estimated disbursement needs for 
a given initial period.

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57931, Nov. 24, 1995]



Sec. 70.3  Effect on other issuances.

    For awards subject to this part, all administrative requirements of 
codified program regulations, program manuals, handbooks and other 
nonregulatory materials which are inconsistent with the requirements of 
this part shall be superseded, except to the extent they are required by 
statute, or authorized in accordance with the deviations provision in 
Sec. 70.4.



Sec. 70.4  Deviations.

    OMB, after consultation with the Department's Division of Financial 
Management and Grants Administration may grant exceptions for classes of 
grants or recipients subject to the requirements of this part when 
exceptions are not prohibited by statute. However, in the interest of 
maximum uniformity, exceptions from the requirements of this part shall 
be permitted only in unusual circumstances. The Department shall apply 
more restrictive requirements to a class of recipients when approved by 
OMB. The Department may apply less restrictive requirements when 
awarding small awards, except for those requirements which are 
statutory. Exceptions on a case-by-case basis may also be made by 
Department.



Sec. 70.5  Subawards.

    Unless sections of this part specifically exclude subrecipients from 
coverage, all of the Department's recipients, including State and local 
governments, shall apply the provisions of this part to subrecipients 
performing work under awards if such subrecipients are institutions of 
higher education, hospitals or other non-profit organizations. State and 
local government subrecipients are subject to the provisions of 
regulations implementing the grants management common rule, ``Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments,'' published at 28 CFR part 66 (March 11, 
1988).



                    Subpart B--Pre-Award Requirements



Sec. 70.10  Purpose.

    Sections 70.11 through 70.17 prescribe forms and instructions and 
other pre-award matters to be used in applying for the Department's 
awards.



Sec. 70.11  Pre-award policies.

    (a) Use of grants and cooperative agreements, and contracts. In each 
instance, the Department shall decide on the appropriate award 
instrument (i.e., grant, cooperative agreement, or contract). The 
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-08) governs 
the use of grants, cooperative agreements and contracts. A grant or 
cooperative agreement shall be used only when the principal purpose of a 
transaction is to accomplish a public purpose of support or stimulation 
authorized by Federal statute. The statutory criterion for choosing 
between grants and cooperative agreements is that for the latter, 
``substantial involvement is expected between the executive agency and 
the State, local government, or other recipient when carrying out the 
activity contemplated in the agreement.'' Contracts shall be used when 
the principal purpose is acquisition of property or services for the 
direct benefit or use of the Federal Government.
    (b) Public notice and priority setting. The Department shall notify 
the public

[[Page 262]]

of its intended funding priorities for discretionary grant programs, 
unless funding priorities are established by Federal statute.



Sec. 70.12  Forms for applying for Federal assistance.

    (a) The Department shall comply with the applicable report clearance 
requirements of 5 CFR part 1320, ``Controlling Paperwork Burdens on the 
Public,'' with regard to all forms used by the Department as a 
supplement to the Standard Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 series and instructions 
prescribed by the Department.
    (c) For the Department's programs covered by Exec. Order No. 12372, 
``Intergovernmental Review of Federal Programs,'' the applicant shall 
complete the appropriate sections of the SF-424 (Application for Federal 
Assistance) indicating whether the application was subject to review by 
the State Single Point of Contact (SPOC). The name and address of the 
SPOC for a particular State can be obtained from the ``Catalog of 
Federal Domestic Assistance.'' The SPOC shall advise the applicant 
whether the program for which application is made has been selected by 
that State for review.



Sec. 70.13  Debarment and suspension.

    Recipients shall comply with the nonprocurement debarment and 
suspension common rule implementing Exec. Order No. 12549 and 12689, 
``Debarment and Suspension.'' This common rule restricts subawards and 
contracts with certain parties that are debarred, suspended or otherwise 
excluded from or ineligible for participation in Federal assistance 
programs or activities.



Sec. 70.14  Special award conditions.

    If an applicant or recipient: Has a history of poor performance, Is 
not financially stable, Has a management system that does not meet the 
standards prescribed in this part, Has not conformed to the terms and 
conditions of a previous award, or Is not otherwise responsible, the 
Department will impose additional requirements as needed, provided that 
such applicant or recipient is notified in writing as to: The nature of 
the additional requirements, the reason why the additional requirements 
are being imposed, the nature of the corrective action needed, the time 
allowed for completing the corrective actions, and the method for 
requesting reconsideration of the additional requirements imposed. Any 
special conditions will be promptly removed once the conditions that 
prompted them have been corrected.



Sec. 70.15  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205) declares that the metric system is 
the preferred measurement system for U.S. trade and commerce. The Act 
requires each Federal agency to establish a date or dates in 
consultation with the Secretary of Commerce, when the metric system of 
measurement will be used in the agency's procurements, grants, and other 
business-related activities. Metric implementation may take longer where 
the use of the system is initially impractical or likely to cause 
significant inefficiencies in the accomplishment of Federally-funded 
activities. The Department will follow the provisions of Exec. Order No. 
12770, ``Metric Usage in Federal Government Programs.''



Sec. 70.16  Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 codified at 42 U.S.C. 6962).

    Under the Act, any State agency or agency of a political subdivision 
of a State which is using appropriated Federal funds must comply with 
section 6002. Section 6002 requires that preference be given in 
procurement programs to the purchase of specific products containing 
recycled materials identified in guidelines developed by the 
Environmental Protection Agency (EPA) (40 CFR parts 247-254). 
Accordingly, State and local institutions of higher education, 
hospitals, and non-profit organizations that receive direct Federal 
awards or other Federal funds shall give preference in their procurement 
programs funded with Federal funds to the purchase of recycled products 
pursuant to the EPA guidelines.

[[Page 263]]



Sec. 70.17  Certifications and representations.

    Unless prohibited by statute or codified regulation, the Department 
will allow recipients to submit certifications and representations 
required by statute, executive order, or regulation on an annual basis, 
if the recipients have ongoing and continuing relationships with the 
agency. Annual certifications and representations must be signed by 
responsible officials with the authority to ensure recipients' 
compliance with the pertinent requirements.



                   Subpart C--Post-Award Requirements

                    Financial and Program Management



Sec. 70.20  Purpose of financial and program management.

    Sections 70.21 through 70.28 prescribe standards for financial 
management systems, methods for making payments and rules for: 
Satisfying cost sharing and matching requirements, accounting for 
program income, budget revision approvals, making audits, determining 
allowability of cost, and establishing fund availability.



Sec. 70.21  Standards for financial management systems.

    (a) Recipients must relate financial data to performance data and 
development unit cost information whenever practical.
    (b) Recipients' financial management systems must provide for the 
following:
    (1) Accurate, current and complete disclosure of the financial 
results of each Federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 70.52. When the 
Department requires reporting on an accrual basis from a recipient that 
maintains its records on other than an accrual basis, the recipient will 
not be required to establish an accrual accounting system. These 
recipients may develop such accrual data for its reports on the basis of 
an analysis of the documentation on hand.
    (2) Records that identify adequately the source and application of 
funds for Federally-sponsored activities. These records must contain 
information pertaining to Federal awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients must adequately safeguard all such 
assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, 
payment methods of State agencies, instrumentalities, and fiscal agents 
must be consistent with CMIA Treasury-State Agreements or the CMIA 
default procedures codified at 31 CFR part 205, ``Withdrawal of Cash 
from the Treasury for Advances under Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.
    (c) The Department, at its discretion, may require adequate bonding 
and insurance if the bonding and insurance requirements of the recipient 
are not deemed adequate to protect the interest of the Federal 
Government.
    (d) The Department will require adequate fidelity bond coverage when 
the recipient lacks sufficient coverage to protect the Federal 
Government's interest.
    (e) Where bonds are required in the situations described above, the 
bonds must be obtained from companies holding certificates of authority 
as acceptable sureties, as prescribed in 31 CFR part 223, ``Surety 
Companies Doing Business with the United States.''

[[Page 264]]



Sec. 70.22  Payment.

    (a) Payment methods must minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities must 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b) Recipients may be paid in advance, provided they maintain or 
demonstrate the willingness to maintain written procedures that minimize 
the time elapsing between the transfer of funds and disbursement by the 
recipient, and financial management systems that meet the standards for 
fund control and accountability as established in Sec. 70.21. Cash 
advances to a recipient organization will be limited to the minimum 
amounts needed and be timed to be in accordance with the actual, 
immediate cash requirements of the recipient organization in carrying 
out the purpose of the approved program or project. The timing and 
amount of cash advances must be as close as is administratively feasible 
to the actual disbursements by the recipient organization for direct 
program or project costs and the proportionate share of any allowable 
indirect costs.
    (c) Whenever possible, advances will be consolidated to cover 
anticipated cash needs for all awards made by the Department to the 
recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.
    (3) Recipients may be authorized to submit requests for advances and 
reimbursements at least monthly when electronic fund transfers are not 
used.
    (d) Requests for Treasury check advance payment must be submitted on 
SF-270, ``Request for Advance or Reimbursement.''
    (e) Reimbursement is the method that will be used when the 
requirements in paragraph (b) of this section cannot be met. The 
Department may also use this method on any construction agreement, or if 
the major portion of the construction project is accomplished through 
private market financing or Federal loans, and the Federal assistance 
constitutes a minor portion of the project.
    (1) When the reimbursement method is used, the Department will make 
payment within 30 days after receipt of the billing, unless the billing 
is improper.
    (2) Recipients will be authorized to submit requests for 
reimbursement at least monthly when electronic funds transfers are not 
used.
    (f) If a recipient cannot meet the criteria for advance payments and 
the Department has determined that reimbursement is not feasible because 
the recipient lacks sufficient working capital, the Department may 
provide cash on a working capital advance basis. Under this procedure, 
the Department will advance cash to the recipient to cover its estimated 
disbursement needs for an initial period generally geared to the 
awardee's disbursing cycle. Thereafter, the Department will reimburse 
the recipient for its actual cash disbursements. The working capital 
advance method of payment will not be used for recipients unwilling or 
unable to provide timely advances to their subrecipient to meet the 
subrecipient's actual cash disbursements.
    (g) To the extent available, recipients must disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements, audit recoveries 
and interest earned on such funds before requesting additional cash 
payments.
    (h) Unless otherwise required by statute, the Department will not 
withhold payments for proper charges made by recipients at any time 
during the project period unless paragraph (h) (1) or (2) of this 
section apply.
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or the Department's reporting 
requirements.
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, the Department may, upon 
reasonable notice, inform the recipient that payments must not be made 
for obligations incurred after a specified date until the

[[Page 265]]

conditions are corrected or the indebtedness to the Federal Government 
is liquidated.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows.
    (1) Except for situations described in paragraph (i)(2) of this 
section, the Department will not require separate depository accounts 
for funds provided to a recipient or establish any eligibility 
requirements for depositories for funds provided to a recipient. 
However, recipients must be able to account for the receipt, obligation 
and expenditure of funds.
    (2) Advances of the Department funds must be deposited and 
maintained in insured accounts whenever possible.
    (j) Consistent with the national goal of expanding the opportunities 
for women-owned and minority-owned business enterprises, recipients are 
encouraged to use women-owned and minority-owned banks (a bank which is 
owned at least fifty percent by women or minority group members).
    (k) Recipients must maintain advances of the Department's funds in 
interest bearing accounts, unless paragraphs (k) (1), (2) or (3) of this 
section apply.
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) For those entities where CMIA and its implementing regulations 
do not apply, interest earned on Federal advances deposited in interest 
bearing accounts must be remitted annually to Department of Health and 
Human Services, (HHS), Payment Management System, P.O. Box 6021, 
Rockville, MD 20852. Interest amounts up to $250 per year may be 
retained by the recipient for administrative expense. State universities 
and hospitals must comply with CMIA, as it pertains to interest. If an 
entity subject to CMIA uses its own funds to pay pre-award costs for 
discretionary awards without prior written approval from the Department, 
it waives its right to recover the interest under CMIA. In keeping with 
Electronic Funds Transfer rules, (31 CFR part 206), interest should be 
remitted to the HHS Payment Management System through an electronic 
medium such as the FEDWIRE Deposit System. Recipients which do not have 
this capability should use a check.
    (m) Recipients must use the SF-270, Request for Advance or 
Reimbursement or other standard form for all nonconstruction programs 
when electronic funds transfer is not used.

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57931, Nov. 24, 1995]



Sec. 70.23  Cost sharing or matching.

    (a) All contributions, including cash and third party in-kind, will 
be accepted as part of the recipient's cost sharing or matching when 
such contributions meet all of the following criteria.
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other Federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are provided for in the approved budget.
    (7) Conform to other provisions of this part, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or matching only with the prior approval of the Department.
    (c) Values for recipient contributions of services and property must 
be established in accordance with the applicable cost principles. If the 
Department authorizes recipients to donate buildings or land for 
construction/facilities acquisition projects or long-term use, the value 
of the donated property for cost sharing or matching must be the lesser 
of paragraph (c) (1) or (2) of this section.

[[Page 266]]

    (1) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient 
justification, the Department may approve the use of the current fair 
market value of the donated property, even if it exceeds the certified 
value at the time of donation to the project.
    (d) Volunteer services furnished by professional and technical 
personnel, consultants, and other skilled and unskilled labor may be 
counted as cost sharing or matching if the service is an integral and 
necessary part of an approved project or program. Rates for volunteer 
services must be consistent with those paid for similar work in the 
recipient's organization. In those instances in which the required 
skills are not found in the recipient organization, rates must be 
consistent with those paid for similar work in the labor market in which 
the recipient competes for the kind of services involved. In either 
case, paid fringe benefits that are reasonable, allowable, and allocable 
may be included in the valuation.
    (e) When an employer other than the recipient furnishes the services 
of an employee, these services must be valued at the employee's regular 
rate of pay (plus an amount of fringe benefits that are reasonable, 
allowable, and allocable, but exclusive of overhead costs), provided 
these services are in the same skills for which the employee would 
normally be paid.
    (f) Donated supplies may include such items as expendable equipment, 
office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share must be reasonable and must not exceed the fair market 
value of the property at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if paragraph 
(g) (1) or (2) of this section apply.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition of equipment, buildings or land, the total value of the 
donated property may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed, provided that the Department has 
approved the charges.
    (h) The value of donated property must be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings must not exceed its fair 
market value at the time of donation to the recipient as established by 
an independent appraiser (e.g., certified real property appraiser or 
General Services Administration representative) and certified by a 
responsible official of the recipient.
    (2) The value of donated equipment must not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space must not exceed the fair rental value 
of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment must not exceed its fair rental 
value.
    (5) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (i) Volunteer services must be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal service, 
material, equipment, buildings and land must be documented.



Sec. 70.24  Program income.

    (a) The standards set forth in this section requiring recipient 
organizations to account for program income related to projects financed 
in whole or in part with Department funds.

[[Page 267]]

    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period must be retained by the 
recipient and, in accordance with the Department regulations or the 
terms and conditions of the award, must be used in one or more of the 
ways listed in the following:
    (1) Added to funds committed to the project by the Department and 
recipient and used to further eligible project or program objectives.
    (2) Used to finance the non-Federal share of the project or program.
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.
    (c) When the Department authorizes the disposition of program income 
as described in paragraphs (b)(1) or (b)(2), of this section, program 
income in excess of any limits stipulated must be used in accordance 
with paragraph (b)(3) of this section.
    (d) In the event that the Department does not specify in its 
regulations or the terms and conditions of the award how program income 
is to be used, paragraph (b)(3), of this section applies automatically 
to all projects or programs.
    (e) Unless the Department's regulations or the terms and conditions 
of the award provide otherwise, recipients will have no obligation to 
the Federal Government regarding program income earned after the end of 
the project period.
    (f) If authorized by the terms and conditions of the award, costs 
incident to the generation of program income may be deducted from gross 
income to determine program income, provided these costs have not been 
charged to the award.
    (g) Proceeds from the sale of property must be handled in accordance 
with the requirements of the Property Standards (See Secs. 70.30 through 
70.37).
    (h) Unless the terms and conditions of the award provide otherwise, 
recipients will have no obligation to the Federal Government with 
respect to program income earned from license fees and royalties for 
copyrighted material, patents, patent applications, trademarks, and 
inventions produced under an award. However, Patent and Trademark 
Amendments (35 U.S.C. 18) apply to inventions made under an 
experimental, developmental, or research award.
    (i) Recipients must account for seized assets from the date of 
seizure until forfeiture and liquidation of funds occur.



Sec. 70.25  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It may include either the 
Federal and non-Federal share, or only the Federal share, depending upon 
the Department's requirements. It must be related to performance for 
program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, recipients must request in writing 
prior approval from the Department for one or more of the following 
program or budget related reasons:
    (1) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) Change in a key person specified in the application or award 
document.
    (3) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (4) The need for additional Federal funding.
    (5) The transfer of amounts budgeted for indirect costs to absorb 
increases in direct costs, or vice versa, approval is required by the 
Department.
    (6) The inclusion, unless waived by the Department, of costs that 
require prior approval in accordance with OMB Circular A-21, ``Cost 
Principles for Institutions of Higher Education,'' OMB Circular A-122, 
``Cost Principles for Non-Profit Organizations,'' or 45 CFR part 74 
appendix E, ``Principles for Determining Costs Applicable to Research 
and Development under Grants and Contracts with Hospitals,'' or 48 CFR

[[Page 268]]

part 31, ``Contract Cost Principles and Procedures,'' as applicable.
    (7) The transfer of funds allotted for training allowances (direct 
payment to trainees) to other categories of expense.
    (8) Unless described in the application and funded in the approved 
awards, the subaward, transfer or contracting out of any work under an 
award. This provision does not apply to the purchase of supplies, 
material, equipment or general support services.
    (d) The Department restricts the transfer of funds among direct cost 
categories or programs, functions and activities, without prior written 
approval for awards in which the Federal share of the project exceeds 
$100,000 and the cumulative amount of such transfers exceeds or is 
expected to exceed ten percent of the total budget as last approved by 
the Department. The Department will not permit a transfer that would 
cause any Federal appropriation or part thereof to be used for purposes 
other than those consistent with the original intent of the 
appropriation.
    (e) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (g) of this section, do not require prior 
approval.
    (f) For construction awards, recipients must request prior written 
approval promptly from the Department for budget revisions whenever 
paragraph (f) (1), (2) or (3) of this section apply.
    (1) The revision results from changes in the scope or the objective 
of the project or program.
    (2) The need arises for additional Department funds to complete the 
project.
    (3) A revision is desired which involves specific costs for which 
prior written approval requirements may be imposed consistent with 
applicable OMB cost principles listed in Sec. 70.27.
    (g) When the Department makes an award that provides support for 
both construction and nonconstruction work, the Department will require 
the recipient to request prior approval from the Department before 
making any fund or budget transfers between the two types of work 
supported.
    (h) For both construction and nonconstruction awards, the Department 
will require recipients to notify the Department in writing promptly 
whenever the amount of Federal authorized funds is expected to exceed 
the needs of the recipient for the project period by more than $5000 or 
five percent of the award, whichever is greater. This notification will 
not be required if an application for additional funding is submitted 
for a continuation award.
    (i) When requesting approval for budget revisions, recipients must 
use the budget forms that were used in the application unless the 
Department indicates a letter of request suffices.
    (j) Within thirty calendar days from the date of receipt of the 
request for budget revisions, the Department will review the request and 
notify the recipient whether the budget revisions have been approved. If 
the revision is still under consideration at the end of thirty calendar 
days, the Department will inform the recipient in writing of the date 
when the recipient may expect the decision.

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57931, Nov. 24, 1995]



Sec. 70.26  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations (including hospitals) shall 
be subject to the audit requirements contained in the Single Audit Act 
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.
    (d) Commercial organizations must follow the audit threshold in 
revised OMB Circular A-133 in determining

[[Page 269]]

whether to conduct an audit in accordance with Government Auditing 
Standards.

[62 FR 45939, 45942, Aug. 29, 1997]



Sec. 70.27  Allowable costs.

    (a) For each kind of recipient, there is a set of Federal principles 
for determining allowable costs. Allowability of costs must be 
determined in accordance with the cost principles applicable to the 
entity incurring the costs. Thus, allowability of costs incurred by 
State, local or Federally-recognized Indian tribal governments is 
determined in accordance with the provisions of OMB Circular A-87, 
``Cost Principles for State and Local Governments.'' The allowability of 
costs incurred by non-profit organizations is determined in accordance 
with the provisions of OMB Circular A-122, ``Cost Principles for Non-
Profit Organizations.'' The allowability of costs incurred by 
institutions of higher education is determined in accordance with the 
provisions of OMB Circular A-21, ``Cost Principles for Educational 
Institutions.'' The allowability of costs incurred by commercial 
organizations and those non-profit organizations listed in Attachment C 
to Circular A-122 is determined in accordance with the provisions of the 
Federal Acquisition Regulation (FAR) at 48 CFR part 31.
    (b) OMB Circular A-122 does not cover the treatment of bid and 
proposal costs or independent research and development costs. The 
following rules apply to these costs for non-profit organizations 
subject to the Circular.
    (1) Bid and proposal costs. Bid and proposal costs are the immediate 
costs of preparing bids, proposals, and applications for Federal and 
non-Federal awards, contracts, and agreements, including the development 
of scientific, costs, and other data needed to support the bids, 
proposals, and applications. Bid and proposal costs of the current 
accounting period are all allowable as indirect costs. Bid and proposal 
costs of past accounting periods are unallowable in the current period. 
However, if the recipient's established practice is to treat these costs 
by some other method, they may be accepted if they are found to be 
reasonable and equitable. Bid and proposal costs do not include 
independent research and development costs covered by paragraph (b)(2) 
of this section, or preaward costs covered by Attachment B, Paragraph 33 
of OMB Circular A-122.
    (2) Independent Research and Development costs. Independent research 
and development shall must be allocated its proportionate share of 
indirect costs on the same basis as the allocation of indirect costs to 
sponsored research and development. The costs of independent research 
and development, including its proportionate share of indirect costs, 
are unallowable.



Sec. 70.28  Period of availability of funds.

    Where a funding period is specified, a recipient must charge to the 
grant only allowable costs resulting from obligations incurred during 
the funding period and any pre-award costs authorized by the Department.

                           Property Standards



Sec. 70.30  Purpose of property standards.

    Sections 70.31 through 70.37 sets forth uniform standards governing 
management and disposition of property furnished by the Federal 
Government whose cost was charged to a project supported by a Federal 
award. The Department will require recipients to observe these standards 
under awards and will not impose additional requirements, unless 
specifically required by Federal statute. The recipient may use its own 
property management standards and procedures provided it observes the 
provisions of Secs. 70.31 through 70.37.



Sec. 70.31  Insurance coverage.

    Recipients must, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with Federal funds as 
provided to property owned by the recipient. Federally-owned property 
need not be insured unless required by the terms and conditions of the 
award.



Sec. 70.32  Real property.

    (a) Title to real property will vest in the recipient subject to the 
condition that the recipient use the real property for the authorized 
purpose of the project as long as it is needed and will

[[Page 270]]

not encumber the property without approval of the Department.
    (b) The recipient must obtain written approval by the Department for 
the use of real property in other Federally-sponsored projects when the 
recipient determines that the property is no longer needed for the 
purpose of the original project. Use in other projects will be limited 
to those under Federally-sponsored projects (i.e., awards) or programs 
that have purposes consistent with those authorized for support by the 
Department.
    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient must request 
disposition instructions from the Department. The Department will 
observe one or more of the following disposition instructions.
    (1) The recipient may be permitted to retain title without further 
obligation to the Federal Government after it compensates the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project.
    (2) The recipient may be directed to sell the property under 
guidelines provided by the Department and pay the Federal Government for 
that percentage of the current fair market value of the property 
attributable to the Federal participation in the project (after 
deducting actual and reasonable selling and fix-up expenses, if any, 
from the sales proceeds). When the recipient is authorized or required 
to sell the property, proper sales procedures must be established that 
provide for competition to the extent practicable and result in the 
highest possible return.
    (3) The recipient may be directed to transfer title to the property 
to the Federal Government or to an eligible third party provided that, 
in such cases, the recipient shall be entitled to compensation for its 
attributable percentage of the current fair market value of the 
property.



Sec. 70.33  Federally-owned and exempt property.

    (a) Federally-owned property. (1) Title to Federally-owned property 
remains vested in the Federal Government. Recipients may be required by 
the terms and conditions of the award, to submit annually an inventory 
listing of Federally-owned property in their custody to the Department. 
Upon completion of the award or when the property is no longer needed, 
the recipient must report the property to the Department for further 
Federal agency utilization.
    (2) If the Department has no further need for the property, it will 
be declared excess and reported to the General Services Administration, 
unless the Department has statutory authority to dispose of the property 
by alternative methods (e.g., the authority provided by the Federal 
Technology Transfer Act (15 U.S.C. 3710 (I)) to donate research 
equipment to educational and non-profit organizations in accordance with 
Exec. Order No. 12821, ``Improving Mathematics and Science Education in 
Support of the National Education Goals.'') Appropriate instructions 
shall be issued to the recipient by the Department.
    (b) Exempt property. When statutory authority exists, the Department 
may vest title to property acquired with Federal funds in the recipient 
without further obligation to the Federal Government when such property 
is ``exempt property.''

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57932, Nov. 24, 1995]



Sec. 70.34  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
will vest in the recipient, subject to conditions of this section.
    (b) The recipient must not use equipment acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute, for as long as the Federal 
Government retains an interest in the equipment.
    (c) The recipient must use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and must not 
encumber the property without approval of the Department. When no longer 
needed for

[[Page 271]]

the original project or program, the recipient must use the equipment in 
connection with its other Federally-sponsored activities, in the 
following order of priority:
    (1) Activities sponsored by the Department which funded the original 
project, then
    (2) Activities sponsored by other Federal awarding agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient must make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use must be given 
to other projects or programs sponsored by the Department. Second 
preference must be given to projects or programs sponsored by other 
Federal awarding agencies. If the equipment is owned by the Federal 
Government, use on other activities not sponsored by the Federal 
Government may be permissible if authorized in writing by the 
Department. User charges must be treated as program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
written approval of the Department.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and Federally-owned equipment must include 
all of the following:
    (1) Equipment records must be maintained accurately and must include 
the following information:
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.
    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the Department for its share.
    (2) Equipment owned by the Federal Government must be identified to 
indicate Federal ownership.
    (3) A physical inventory of equipment must be taken and the results 
reconciled with the equipment records annually. Any differences between 
quantities determined by the physical inspection and those shown in the 
accounting records must be investigated to determine the causes of the 
difference. The recipient must, in connection with the inventory, verify 
the existence, current utilization, and continued need for the 
equipment.
    (4) A control system must be in effect to insure adequate safeguards 
to prevent loss, damage, or theft of the equipment. Any loss, damage, or 
theft of equipment must be investigated and fully documented; if the 
equipment was owned by the Federal Government, the recipient must 
promptly notify the Department.
    (5) Adequate maintenance procedures must be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures must be established which provide for 
competition to the extent practicable and result in the highest possible 
return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5,000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the Department or its successor. 
The amount of compensation must be computed by applying the percentage 
of Federal participation in the cost of the original project or program

[[Page 272]]

to the current fair market value of the equipment. If the recipient has 
no need for the equipment, the recipient must request disposition 
instructions from the Department. The Department will determine whether 
the equipment can be used to meet the agency's requirements. If no 
requirement exists within that agency, the availability of the equipment 
must be reported to the General Services Administration by the 
Department to determine whether a requirement for the equipment exists 
in other Federal agencies. The Department will issue instructions to the 
recipient no later than 120 calendar days after the recipient's request 
and the following procedures will govern.
    (1) If so instructed or if disposition instructions are not issued 
within 120 calendar days after the recipient's request, the recipient 
may sell the equipment and reimburse the Department an amount computed 
by applying to the sales proceeds the percentage of Federal 
participation in the cost of the original project or program. However, 
the recipient may be permitted to deduct and retain from the Federal 
share $500 or ten percent of the proceeds, whichever is less, for the 
recipient's selling and handling expenses.
    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient may be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in the cost of the original project or program to the 
current fair market value of the equipment, plus any reasonable shipping 
or interim storage costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient may be reimbursed by the Department for such 
costs incurred in its disposition.
    (4) The Department reserves the right to transfer the title to the 
Federal Government or to a third party named by the Federal Government 
when such third party is otherwise eligible under existing statutes. 
Such transfer will be subject to the following standards.
    (i) The equipment must be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (ii) The Department will issue disposition instructions within 120 
calendar days after receipt of a final inventory. The final inventory 
must list all equipment acquired with grant funds and Federally-owned 
equipment. If the Department fails to issue disposition instructions 
within the 120 calendar day period, the recipient may apply the 
standards of this section, as appropriate.
    (iii) When the Department exercises its right to take title, the 
equipment is subject to the provisions for Federally-owned equipment.



Sec. 70.35  Supplies and other expendable property.

    (a) Title to supplies and other expendable property vests in the 
recipient upon acquisition. If there is a residual inventory of unused 
supplies exceeding $5000 in total aggregate value upon termination or 
completion of the project or program and the supplies are not needed for 
any other Federally-sponsored project or program, the recipient may 
retain the supplies for use on non-Federal sponsored activities or sell 
them, but must, in either case, compensate the Federal Government for 
its share. The amount of compensation must be computer in the same 
manner as for equipment.
    (b) The recipient must not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.



Sec. 70.36  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The Department reserves a royalty-free, nonexclusive and 
irrevocable right to reproduce, publish, or otherwise use the work for 
Federal purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide

[[Page 273]]

regulations issued by the Department of Commerce at 37 CFR part 401, 
``Rights to Inventions Made by Nonprofit Organizations and Small 
Business Firms Under Government Grants, Contracts and Cooperative 
Agreements.''
    (c) The Department has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d)(1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal Government in 
developing an agency action that has the force and effect of law, the 
Departamental awarding agency shall request, and the recipient shall 
provide, within a reasonable time, the research data so that they can be 
made available to the public through the procedures established under 
the FOIA. If the Departamental awarding agency obtains the research data 
solely in response to a FOIA request, the agency may charge the 
requester a reasonable fee equaling the full incremental cost of 
obtaining the research data. This fee should reflect costs incurred by 
the agency, the recipient, and applicable subrecipients. This fee is in 
addition to any fees the agency may assess under the FOIA (5 U.S.C. 
552(a)(4)(A)).
    (2) The following definitions apply for purposes of this paragraph 
(d):
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as necessary to validate 
research findings, but not any of the following: preliminary analyses, 
drafts of scientific papers, plans for future research, peer reviews, or 
communications with colleagues. This ``recorded'' material excludes 
physical objects (e.g., laboratory samples). Research data also do not 
include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:
    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient must use that property for the originally-authorized purpose, 
and the recipient must not encumber the property without approval of the 
Department. When no longer needed for the originally authorized purpose, 
disposition of the intangible property must occur in accordance with the 
provisions of Sec. 70.34(g).

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57932, Nov. 24, 1995; Order No. 2289-2000, 65 FR 14407, 14410, Mar. 16, 
2000]



Sec. 70.37  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal funds must be held in trust 
by the recipient as trustee for the beneficiaries of the project or 
program under which the property was acquired or improved. Recipients 
are required to record liens or other appropriate notices of record to 
indicate that personal or real property has been acquired or improved 
with Federal funds and that use and disposition conditions apply to the 
property.

[[Page 274]]

                          Procurement Standards



Sec. 70.40  Purpose of procurement standards.

    Sections 70.41 through 70.48 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with Federal funds. These standards are furnished to ensure 
that such materials and services are obtained in an effective manner and 
in compliance with the provisions of applicable Federal statutes and 
executive orders. No additional procurement standards will be imposed by 
the Department upon recipients, unless specifically required by Federal 
statute or executive order or approved by OMB.



Sec. 70.41  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to the 
Department, regarding the settlement and satisfaction of all contractual 
and administrative issues arising out of procurements entered into in 
support of an award or other agreement. This includes disputes, claims, 
protests of award, source evaluation or other matters of a contractual 
nature. Matters concerning violation of statute are to be referred to 
such Federal, State or local authority as may have proper jurisdiction.



Sec. 70.42  Codes of conduct.

    The recipient must maintain written standards of conduct governing 
the performance of its employees engaged in the award and administration 
of contracts. No employee, officer, or agent shall participate in the 
selection, award, or administration of a contract supported by Federal 
funds if a real or apparent conflict of interest would be involved. Such 
a conflict would arise when the employee, officer, or agent, any member 
of his or her immediate family, his or her partner, or an organization 
which employs or is about to employ any of the parties indicated herein, 
has a financial or other interest in the firm selected for an award. The 
officers, employees, and agents of the recipient shall neither solicit 
nor accept gratuities, favors, or anything of monetary value from 
contractors, or parties to subagreements. However, recipients may set 
standards for situations in which the financial interest is not 
substantial or the gift is an unsolicited item of nominal value. The 
standards of conduct must provide for disciplinary actions to be applied 
for violations of such standards by officers, employees, or agents of 
the recipient.



Sec. 70.43  Competition.

    All procurement transactions must be conducted in a manner to 
provide, to the maximum extent practical, open and free competition. The 
recipient must be alert to organizational conflicts of interest as well 
as noncompetitive practices among contractors that may restrict or 
eliminate competition or otherwise restrain trade. In order to ensure 
objective contractor performance and eliminate unfair competitive 
advantage, contractors that develop or draft specifications, 
requirements, statements of work, invitations for bids and/or requests 
for proposals must be excluded from competing for such procurements. 
Awards must be made to the bidder or offeror whose bid or offer is 
responsive to the solicitation and is most advantageous to the 
recipient, price, quality and other factors considered. Solicitations 
must clearly set forth all requirements that the bidder or offeror must 
fulfill in order for the bid or offer to be evaluated by the recipient. 
Any and all bids or offers may be rejected when it is in the recipient's 
interest to do so.



Sec. 70.44  Procurement procedures.

    (a) All recipients must establish written procurement procedures. 
These procedures must provide for, at a minimum, that paragraphs (a) 
(1), (2), and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government.
    (3) Solicitations for goods and services provide for all of the 
following:

[[Page 275]]

    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description must not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.
    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts must be made by recipients to utilize small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of Federal awards must take all of the 
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange time frames for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms and women's 
business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) may be determined by the recipient and must be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting must not 
be used.
    (d) Contracts must be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration must be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by agencies' implementation of Exec. Order No. 12549 and 
12689, ``Debarment and Suspension.''
    (e) Recipients must, on request, make available for the Department, 
pre-award review and procurement documents, such as request for 
proposals or invitations for bids, independent cost estimates, etc., 
when any of the following conditions apply.
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in the Department's regulation.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403(11) (currently $25,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.

[[Page 276]]

    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57932, Nov. 24, 1995]



Sec. 70.45  Cost and price analysis.

    Some form of cost or price analysis must be made and documented in 
the procurement files in connection with every procurement action. Price 
analysis may be accomplished in various ways, including the comparison 
of price quotations submitted, market prices and similar indicia, 
together with discounts. Cost analysis is the review and evaluation of 
each element of cost to determine reasonableness, allocability and 
allowability.



Sec. 70.46  Procurement records.

    Procurement records and files for purchases in excess of the small 
purchase threshold must include the following at a minimum:
    (a) Basis for contractor selection,
    (b) Justification for lack of competition when competitive bids or 
offers are not obtained, and
    (c) Basis for award cost or price.



Sec. 70.47  Contract administration.

    A system for contract administration must be maintained to ensure 
contractor conformance with the terms, conditions and specifications of 
the contract and to ensure adequate and timely follow up of all 
purchases. Recipients must evaluate contractor performance and document, 
as appropriate, whether contractors have met the terms, conditions and 
specifications of the contract.



Sec. 70.48  Contract provisions.

    The recipient must include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following provisions must also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold must contain 
contractual provisions or conditions that allow for administrative, 
contractual, or legal remedies in instances in which a contractor 
violates or breaches the contract terms, and provide for such remedial 
actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold must 
contain suitable provisions for termination by the recipient, including 
the manner by which termination must be effected and the basis for 
settlement. In addition, such contracts must describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements must provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, the Department 
may accept the bonding policy and requirements of the recipient, 
provided the Department has made a determination that the Federal 
Government's interest is adequately protected. If such a determination 
has not been made, the minimum requirements are to be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' must consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder must, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.

[[Page 277]]

    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by statute of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (4) Where bonds are required in the situations described herein, the 
bonds must be obtained from companies holding certificates of authority 
as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies 
Doing Business with the United States.''
    (d) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients must include a provision to 
the effect that the recipient, the Department, the Comptroller General 
of the United States, or any of their duly authorized representatives, 
must have access to any books, documents, papers and records of the 
contractor which are directly pertinent to a specific program for the 
purpose of making audits, examinations, excerpts and transcriptions.
    (e) All contracts, including small purchases, awarded by recipients 
and their contractors must contain the procurement provisions of 
appendix A to this part as applicable.

                           Reports and Records



Sec. 70.50  Purpose of reports and records.

    Sections 70.51 through 70.53 set forth the procedures for monitoring 
and reporting on the recipient's financial and program performance and 
the necessary standard reporting forms. They also set forth record 
retention requirements.



Sec. 70.51  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients must monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 70.26.
    (b) Performance reports must be submitted based on each calendar 
quarter. Reports are due thirty days after the reporting period, unless 
stated differently in the terms and conditions of the award. The final 
performance reports are due ninety calendar days after the expiration or 
termination of the award.
    (c) Performance reports must contain, for each award, brief 
information on each of the following.
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (d) Recipients are required to submit the original and two copies of 
performance reports.
    (e) Recipients must immediately notify the department, in writing, 
of developments that have a significant impact on the award-supported 
activities. Also, written notification must be given in the case of 
problems, delays, or adverse conditions which materially impair the 
ability to meet the objectives of the award. This notification must 
include a statement of the action taken or contemplated, and any 
assistance needed to resolve the situation.
    (f) The Department will make site visits, as needed.
    (g) The Department will comply with clearance requirements of 5 CFR 
part 1320 when requesting performance data from recipients.

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57932, Nov. 24, 1995]



Sec. 70.52  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report.
    (i) Recipients are required to use the SF-269 or SF-269A to report 
the status of funds for all nonconstruction projects or programs.

[[Page 278]]

    (ii) Reports must be on an accrual basis. Recipients are not 
required to convert their accounting system, but must develop such 
accrual information through best estimates based on an analysis of the 
documentation on hand.
    (iii) The Department requires the SF-269, SF-269A, or turnaround 
document to be submitted no later than forty five days after the 
calendar quarter. The final report is due ninety days from the end date 
of the award.
    (b) When the Department needs additional information or more 
frequent reports, the following will be observed.
    (1) When additional information is needed to comply with legislative 
requirements, the Department will issue instructions to require 
recipients to submit such information under the ``Remarks'' section of 
the reports.
    (2) When the Department determines that a recipient's accounting 
system does not meet the standards in Sec. 70.21, additional pertinent 
information to further monitor awards will be obtained upon written 
notice to the recipient until such time as the system is brought up to 
standard. The Department, in obtaining this information, will comply 
with report clearance requirements of 5 CFR part 1320.
    (3) The Department will accept the identical information from the 
recipients in machine readable format or computer printouts or 
electronic outputs in lieu of prescribed formats.
    (4) The Department will provide computer or electronic outputs to 
recipients when such expedites or contributes to the accuracy of 
reporting.

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57932, Nov. 24, 1995]



Sec. 70.53  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. The Department will not 
impose any other record retention or access requirements upon 
recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award must be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report, as authorized by the Department. The only exceptions 
are the following:
    (1) If any litigation, claim, or audit is started before the 
expiration of the three year period, the records must be retained until 
all litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds must be retained for three years after final disposition.
    (3) When records are transferred to or maintained by the Department, 
the three year retention requirement is not applicable to the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, etc. as 
specified in Sec. 70.53(g).
    (c) Copies of original records may be substituted for the original 
records if authorized by the Department.
    (d) The Department will request transfer of certain records to its 
custody from recipients when it determines that the records possess long 
term retention value. However, in order to avoid duplicate 
recordkeeping, the Department will make arrangements for recipients to 
retain any records that are continuously needed for joint use.
    (e) The Department, its Inspector General, Comptroller General of 
the United States, or any of their duly authorized representatives, have 
the right of timely and unrestricted access to any books, documents, 
papers, or other records of recipients that are pertinent to the awards, 
in order to make audits, examinations, excerpts, transcripts and copies 
of such documents. This right also includes timely and reasonable access 
to a recipient's personnel for the purpose of interview and discussion 
related to such documents. The rights of access in this paragraph are 
not limited to the required retention period, but must last as long as 
records are retained.
    (f) Unless required by statute, the Department will not place 
restrictions on recipients that limit public access to the records of 
recipients that are pertinent to an award, except when the

[[Page 279]]

Department can demonstrate that such records must be kept confidential 
and would have been exempted from disclosure pursuant to the Freedom of 
Information Act (5 U.S.C. 552) if the records had belonged to the 
Department.
    (g) Indirect cost rate proposals, cost allocation plans, etc. 
Paragraphs (g)(1) and (g)(2) of this section apply to the following 
types of documents, and their supporting records: Indirect cost rate 
computations or proposals, cost allocation plans, and any similar 
accounting computations of the rate at which a particular group of costs 
is chargeable (such as computer usage chargeback rates or composite 
fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to the 
Department or the subrecipient submits to the recipient the proposal, 
plan, or other computation to form the basis for negotiation of the 
rate, then the three year retention period for its supporting records 
starts on the date of such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the Department or the subrecipient is not required 
to submit to the recipient the proposal, plan, or other computation for 
negotiation purposes, then the three year retention period for the 
proposal, plan, or other computation and its supporting records starts 
at the end of the fiscal year (or other accounting period) covered by 
the proposal, plan, or other computation.

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57932, Nov. 24, 1995]

                       Termination and Enforcement



Sec. 70.60  Purpose of termination and enforcement.

    Sections 70.61 and 70.62 set forth uniform suspension, termination 
and enforcement procedures.



Sec. 70.61  Termination.

    (a) Awards may be terminated in whole or in part only if paragraph 
(a) (1), (2) or (3) of this section apply.
    (1) By the Department, if a recipient materially fails to comply 
with the terms and conditions of an award.
    (2) By the Department with the consent of the recipient, in which 
case the two parties must agree upon the termination conditions, 
including the effective date and, in the case of partial termination, 
the portion to be terminated.
    (3) By the recipient upon sending to the Department written 
notification setting forth the reasons for such termination, the 
effective date, and, in the case of partial termination, the portion to 
be terminated. However, if the Department determines in the case of 
partial termination that the reduced or modified portion of the grant 
will not accomplish the purposes for which the grant was made, it may 
terminate the grant in its entirety under either paragraph (a) (1) or 
(2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 70.71(a), including those for property 
management as applicable, must be considered in the termination of the 
award, and provision must be made for continuing responsibilities of the 
recipient after termination, as appropriate.



Sec. 70.62  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the Department will, in addition to imposing any of the special 
conditions outlined in Sec. 70.14, take one or more of the following 
actions, as appropriate in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
Department.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, the 
Department will provide the recipient an opportunity for hearing, 
appeal, or other administrative proceeding to which the recipient is 
entitled under any statute

[[Page 280]]

or regulation applicable to the action involved.
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless the Department 
expressly authorizes them in the notice of suspension or termination or 
subsequently. Other recipient costs during suspension or after 
termination which are necessary and not reasonably avoidable are 
allowable if paragraphs (c) (1) and (2) of this section apply.
    (1) The costs result from obligations which were properly incurred 
by the recipient before the effective date of suspension or termination, 
are not in anticipation of it, and in the case of a termination, are 
noncancellable.
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under Exec. Order No. 12549 and 12689 and the Department 
implementing regulations (see Sec. 70.13).

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57932, Nov. 24, 1995]



                 Subpart D--After-the-Award Requirements



Sec. 70.70  Purpose.

    Sections 70.71 through 70.73 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec. 70.71  Closeout procedures.

    (a) Recipients must submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. The 
Department may approve extensions when requested in writing by the 
recipient.
    (b) Unless the Department authorizes an extension, a recipient must 
liquidate all obligations incurred under the award not later than ninety 
calendar days after the funding period or the date of completion as 
specified in the terms and conditions of the award or in agency 
implementing instructions.
    (c) The Department will make prompt payments to a recipient for 
allowable reimbursable costs under the award being closed out.
    (d) The recipient must promptly refund any balances of unobligated 
cash that the Department has advanced or paid and that is not authorized 
to be retained by the recipient for use in other projects. OMB Circular 
A-129 governs unreturned amounts that become delinquent debts.
    (e) When authorized by the terms and conditions of the award, the 
Department will make a settlement for any upward or downward adjustments 
to the Federal share of costs after closeout reports are received.
    (f) The recipient must account for any real and personal property 
acquired with Federal funds or received from the Federal Government in 
accordance with Secs. 70.31 through 70.37.
    (g) In the event a final audit has not been performed prior to the 
closeout of an award, the Department retains the right to recover an 
appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec. 70.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of the Department to disallow costs and recover funds 
on the basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 70.26.
    (4) Property management requirements in Secs. 70.31 through 70.37.
    (5) Records retention as required in Sec. 70.53.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
the Department and the recipient, provided the

[[Page 281]]

responsibilities of the recipient referred to in Sec. 70.73(a), 
including those for property management as applicable, are considered 
and provisions made for continuing responsibilities of the recipient, as 
appropriate.



Sec. 70.73  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, the 
Department may reduce the debt by paragraph (a) (1), (2) or (3) of this 
section.
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, the Department may charge 
interest on an overdue debt in accordance with 4 CFR chapter II, 
``Federal Claims Collection Standards.''

               Appendix A to Part 70--Contract Provisions

    All contracts, awarded by a recipient including small purchases, 
must contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts must contain a 
provision requiring compliance with Exec. Order No. 11246, ``Equal 
Employment Opportunity,'' as amended by Exec. Order No. 11375, 
``Amending Executive Order 11246 Relating to Equal Employment 
Opportunity,'' and as supplemented by regulations at 41 CFR part 60, 
``Office of Federal Contract Compliance Programs, Equal Employment 
Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subawards in excess of $2000 for construction 
or repair awarded by recipients and subrecipients must include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in Part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient must be 
prohibited from inducing, by any means, any person employed in the 
construction, completion, or repair of public work, to give up any part 
of the compensation to which he is otherwise entitled. The recipient 
must report all suspected or reported violations to the Department.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2000 must 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
276a to a-7) and as supplemented by Department of Labor regulations (29 
CFR part 5, ``Labor Standards Provisions Applicable to Contracts 
Governing Federally Financed and Assisted Construction''). Under this 
Act, contractors must be required to pay wages to laborers and mechanics 
at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
are required to pay wages not less than once a week. The recipient must 
place a copy of the current prevailing wage determination issued by the 
Department of Labor in each solicitation and the award of a contract 
must be conditioned upon the acceptance of the wage determination. The 
recipient must report all suspected or reported violations to the 
Department.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333)-
-Where applicable, all contracts awarded by recipients in excess of 
$2000 for construction contracts and in excess of $2500 for other 
contracts that involve the employment of mechanics or laborers must 
include a provision for compliance with sections 102 and 107 of the 
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
section 102 of the Act, each contractor is required to compute the wages 
of every mechanic and laborer on the basis of a standard work week of 
forty hours. Work in excess of the standard work week is permissible 
provided that the worker is compensated at a rate of not less than one 
and one-half times the basic rate of pay for all hours worked in excess 
of forty hours in the work week. Section 107 of the Act is applicable to 
construction work and provides that no laborer or mechanic shall be 
required to work in surroundings or under working conditions which are 
unsanitary, hazardous or dangerous. These requirements do not apply to 
the purchases of supplies or materials or articles ordinarily available 
on the open market, or contracts for transportation or transmission of 
intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work must provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to

[[Page 282]]

Inventions Made by Nonprofit Organizations and Small Business Firms 
Under Government Grants, Contracts and Cooperative Agreements,'' and any 
implementing regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subawards of amounts in excess of $100,000 must contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations must be reported to the 
Department and the Regional Office of the Environmental Protection 
Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of $100,000 or more must file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a Member of Congress, officer or employee of 
Congress, or an employee of a Member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal 
funds that takes place in connection with obtaining any Federal award. 
Such disclosures are forwarded from tier to tier up to the recipient.
    8. Debarment and Suspension (Exec. Order No. 12549 and 12689)--No 
contract shall be made to parties listed on the General Services 
Administration's List of Parties Excluded from Federal Procurement or 
Nonprocurement Programs in accordance with Exec. Order No. 12549 and 
12689, ``Debarment and Suspension.'' This list contains the names of 
parties debarred, suspended, or otherwise excluded by agencies, and 
contractors declared ineligible under statutory or regulatory authority 
other than Exec. Order No. 12549. Contractors with awards that exceed 
the small purchase threshold must provide the required certification 
regarding its exclusion status and that of its principal employees.

[Order No. 1980-95, 60 FR 38242, July 26, 1995; Order No. 1998-95, 60 FR 
57932, Nov. 24, 1995]



PART 71--IMPLEMENTATION OF THE PROVISIONS OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986--Table of Contents




  Subpart A--Implementation for Actions Initiated by the Department of 
                                 Justice

Sec.
71.1  Purpose.
71.2  Definitions.
71.3  Basis for civil penalties and assessments.
71.4  Investigation.
71.5  Review by the reviewing official.
71.6  Prerequisites for issuing a complaint.
71.7  Complaint.
71.8  Service of complaint.
71.9  Answer.
71.10  Default upon failure to file an answer.
71.11  Referral of complaint and answer to the ALJ.
71.12  Notice of hearing.
71.13  Parties to the hearing.
71.14  Separation of functions.
71.15  Ex parte contacts.
71.16  Disqualification of reviewing official or ALJ.
71.17  Rights of parties.
71.18  Authority of the ALJ.
71.19  Prehearing conferences.
71.20  Disclosure of documents.
71.21  Discovery.
71.22  Exchange of witness lists, statements, and exhibits.
71.23  Subpoenas for attendance at hearing.
71.24  Protective order.
71.25  Fees.
71.26  Form, filing and service of papers.
71.27  Computation of time.
71.28  Motions.
71.29  Sanctions.
71.30  The hearing and burden of proof.
71.31  Determining the amount of penalties and assessments.
71.32  Location of hearing.
71.33  Witnesses.
71.34  Evidence.
71.35  The record.
71.36  Post-hearing briefs.
71.37  Initial decision.
71.38  Reconsideration of initial decision.
71.39  Appeal to authority head.
71.40  Stays ordered by the Department of Justice.
71.41  Stay pending appeal.
71.42  Judicial review.
71.43  Collection of civil penalties and assessments.

[[Page 283]]

71.44  Right to administrative offset.
71.45  Deposit in Treasury of the United States.
71.46  Compromise or settlement.
71.47  Limitations.
71.48-71.50  [Reserved]

  Subpart B--Assignment of Responsibilities Regarding Actions by Other 
                                Agencies

71.51  Purpose.
71.52  Approval of Agency requests to initiate a proceeding.
71.53  Stays of Agency proceedings at the request of the Department.
71.54  Collection and compromise of liabilities imposed by Agency.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 31 U.S.C. 3801-3812; 
Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 
1321.

    Source: Order No. 1268-88, 53 FR 11646, Apr. 8, 1988, unless 
otherwise noted.



  Subpart A--Implementation for Actions Initiated by the Department of 
                                 Justice



Sec. 71.1  Purpose.

    This subpart implements the Program Fraud Civil Remedies Act of 
1986, Public Law 99-509, 6101-6104, 100 Stat. 1874 (October 21, 1986), 
to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute 
requires each authority head to promulgate regulations necessary to 
implement the provisions of the statute. The subpart establishes 
administrative procedures for imposing civil penalties and assessments 
against persons who make, submit, or present, or cause to be made, 
submitted, or presented, false, fictitious, or fraudulent claims or 
written statements to authorities or to their agents, and specifies the 
hearing and appeal rights of persons subject to allegations of liability 
for such penalties and assessments.



Sec. 71.2  Definitions.

    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    Authority means the United States Department of Justice, including 
all offices, boards, divisions and bureaus.
    Authority head means the Attorney General or his designee. For 
purposes of these regulations, the Deputy Attorney General is designated 
to act on behalf of the Attorney General.
    Benefit means in the context of statement, anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status or loan guarantee.
    Claim means any request, demand, or submission--
    (a) Made to the authority for property, services, or money 
(including money representing grants, loans or insurance);
    (b) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (1) For property or services if the United States:
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or
    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States:
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the rviewing 
official on the defendant under Sec. 71.7.
    Defendant means any person alleged in a complaint under Sec. 71.7 to 
be liable for a civil penalty or assessment under Sec. 71.3.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. 71.10 or Sec. 71.37, and includes a revised initial decision issued 
following a remand or a motion for reconsideration.
    Investigating Official means the Inspector General.

[[Page 284]]

    Knows or has reason to know means that a person, with respect to a 
claim or statement:
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes shall include the terms presents, submits, and causes to be 
made, presented, or submitted. As the context requires, making or made, 
shall likewise include the corresponding forms of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization, and includes the plural of that term.
    Representative means an attorney who is in good standing of the bar 
of any State, Territory, or possession of the United States or of the 
District of Columbia or the Commonwealth of Puerto Rico.
    Reviewing Official means the Assistant Attorney General for 
Administration. For purposes of Sec. 71.5 of these rules, the Assistant 
Attorney General for Administration, personally or through his immediate 
staff, shall perform the functions of the reviewing official provided 
that such person is serving in a position for which the rate of basic 
pay is not less than the minimum rate of basic pay for grade GS-16 under 
the General Schedule. All other functions of the reviewing official, 
including administrative prosecution under these rules, shall be 
performed with respect to the components listed below by the individuals 
listed below acting on behalf of the Assistant Attorney General for 
Administration:
    (a) For the offices, boards, divisions and any other components not 
covered below, the General Counsel, Justice Management Division;
    (b) For the Bureau of Prisons (BOP), the General Counsel, BOP;
    (c) For the Drug Enforcement Administration (DEA), the Chief 
Counsel, DEA;
    (d) For the Federal Bureau of Investigation (FBI), the Assistant 
Director, Legal Counsel Division;
    (e) For the Bureau of Alcohol, Tobacco, Firearms, and Explosives 
(ATF), the Chief Counsel, ATF;
    (f) For the Immigration and Naturalization Service (INS), the 
General Counsel, INS; and
    (g) For the United States Marshals Service (USMS), the Associate 
Director for Administration.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made:
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for):
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from, the authority, or any State, 
political subdivision of a State, or other party, if the United States 
Government provides any portion of the money or property under such 
contract or for such grant, loan, or benefit, or if the Government will 
reimburse such State, political subdivision, or party for any portion of 
the money or property under such contract or for such grant, loan, or 
benefit.

[Order No. 1268-88, 53 FR 11646, Apr. 8, 1988, as amended by Order No. 
1444-90, 55 FR 38318, Sept. 18, 1990; Order No. 2650-2003, 68 FR 4929, 
Jan. 31, 2003]



Sec. 71.3  Basis for civil penalties and assessments.

    (a) Any person shall be subject, in addition to any other remedy 
that may be prescribed by law, to a civil penalty of not more than 
$5,000 for each claim listed in paragraphs (a)(1) through (a)(4) of this 
section made before September 29, 1999, and not more than $5,500 for 
each such claim made on or after September 29, 1999, if that person 
makes a claim that the person knows or has reason to know:
    (1) Is false, ficticious, or fraudulent;
    (2) Includes, or is supported by, any written statement which 
asserts a material fact which is false, ficticious or fraudulent;
    (3) Includes or is supported by, any written statement that
    (i) Omits a material fact;

[[Page 285]]

    (ii) Is false, ficticious, or fraudulent as a result of such 
omission; and
    (iii) Is a statement in which the person making such a statement has 
a duty to include such material fact; or
    (4) Is for payment for the provision of property or services which 
the person has not provided as claimed.
    (b) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (c) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the authority, recipient, or party.
    (d) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (e) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (f) Any person shall be subject, in addition to any other remedy 
that may be prescribed by law, to a civil penalty of not more than 
$5,000 for each statement listed in paragraphs (f)(1) and (f)(2) of this 
section made before September 29, 1999, and not more than $5,500 for 
each such statement made on or after September 29, 1999, if that person 
makes a written statement that:
    (1) The person knows or has reason to know
    (i) Asserts a material fact which is false ficticious, or 
fraudulent; or
    (ii) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (2) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement.
    (g) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (h) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the authority.
    (i) No proof of specific intent to defraud is required to establish 
liability under this section.
    (j) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (k) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[Order No. 1268-88, 53 FR 11646, Apr. 8, 1988, as amended by Order No. 
2249-99, 64 FR 47103, Aug. 30, 1999]



Sec. 71.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted, he may 
issue a subpoena.
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official, or the person designated to receive the 
documents, a certification that
    (i) The documents sought have been produced;
    (ii) Such documents are not available and the reasons therefor; or

[[Page 286]]

    (iii) Such documents, suitably identified, have been withheld based 
upon the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations within the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
defer or postpone a report or referral to the reviewing official to 
avoid interference with a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
appropriate component of the Department.



Sec. 71.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 71.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 71.3, the 
reviewing official shall transmit to the Assistant Attorney General, 
Civil Division, a written notice of the reviewing official's intention 
to have a complaint issued under Sec. 71.7. Such notice shall include
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that support the allegations 
of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money, or the value of property, 
services, or other benefits, requested or demanded in violation of 
Sec. 71.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec. 71.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 71.7 
only if
    (1) The Assistant Attorney General, Civil Division, approves the 
issuance of a complaint in a written statement described in 31 U.S.C. 
3803(b)(1), and
    (2) In the case of allegations of liability under Sec. 71.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money, or the value of property or services, demanded or 
requested in violation of Sec. 71.3(a) does not exceed $150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 71.7  Complaint.

    (a) On or after the date the Assistant Attorney General, Civil 
Division, approves the issuance of a complaint in accordance with 31 
U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the 
defendant, as provided in Sec. 71.8.
    (b) The complaint shall state the following:
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;

[[Page 287]]

    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) The fact that failure to file an answer within 30 days of 
service of the complaint will result in the imposition of the maximum 
amount of penalties and assessments without right to appeal, as provided 
in Sec. 71.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 71.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or his or her 
representative.



Sec. 71.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly with the ALJ the complaint, the general answer denying 
liability, and the request for an extension of time as provided in 
Sec. 71.11. For good cause shown, the ALJ may grant the defendant up to 
30 additional days within which to file an answer meeting the 
requirements of paragraph (b) of this section.



Sec. 71.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 71.9(a), the reviewing official may refer the 
complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on the defendant in the manner prescribed in Sec. 71.8, a notice that an 
initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under Sec. 71.3, the ALJ 
shall issue an initial decision imposing the maximum amount of penalties 
and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.

[[Page 288]]

    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the defendant an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 71.38.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such decision.



Sec. 71.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec. 71.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 71.8. At the same time, the ALJ shall send a copy of 
such notice to the reviewing official or his designee.
    (b) Such notice shall include
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 71.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 71.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case.
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to or subject to the 
supervision or direction of the investigating official or the reviewing 
official.



Sec. 71.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking

[[Page 289]]

routine questions concerning administrative functions or procedures.



Sec. 71.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with this section.
    (1) If the ALJ determines that a reviewing official is disqualified, 
the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec. 71.17  Rights of parties.

    Except as otherwise limited by this part, all parties may
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 71.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec. 71.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.

[[Page 290]]

    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec. 71.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 71.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Assistant Attorney General, Civil 
Division, from the reviewing official as described in Sec. 71.5 is not 
discoverable under any circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec. 71.9.



Sec. 71.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Secs. 71.22 and 71.23, the 
term ``documents'' includes information, documents, reports, answers, 
records, accounts, papers, and other data and documentary evidence. 
Nothing contained herein shall be interpreted to require the creation of 
a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery are to be handled according to the 
following procedures:
    (1) A party seeking discovery may file a motion with the ALJ. Such a 
motion shall be accompanied by a copy of the requested discovery, or in 
the case of depositions, a summary of the scope of the proposed 
deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in 
Sec. 71.24.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;

[[Page 291]]

    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 71.24.
    (e) Depositions are to be handled in the following manner:
    (1) If a motion for deposition is granted, the ALJ shall issue a 
subpoena for the deponent, which may require the deponent to produce 
documents. The subpoena shall specify the time and place at which the 
deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 71.8.
    (3) The deponent may file with the ALJ within ten days of service a 
motion to quash the subpoena or a motion for a protective order.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 71.22  Exchange of witness lists, statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 71.33(b). At the time the above documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, shall provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ may not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragaraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 71.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ upon a showing of good cause. Such request 
shall specify any documents to be produced and shall designate the 
witnesses and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 71.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec. 71.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice

[[Page 292]]

requires to protect a party or person from annoyance, embarrassment, 
oppression, or undue burden or expense, including one or more of the 
following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be the subject of inquiry, or that the 
scope of discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a sealed deposition be opened only by order of the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 71.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the authority, a 
check for witness fees and mileage need not accompany the subpoena.



Sec. 71.26  Form, filing and service of papers.

    (a) Form. Documents filed with the ALJ shall include an original and 
two copies. Every pleading and paper filed in the proceeding shall 
contain a caption setting forth the title of the action, the case number 
assigned by the ALJ, and a designation of the paper (e.g., motion to 
quash subpoena). Every pleading and paper shall be signed by, and shall 
contain the address and telephone number of the party or the person on 
whose behalf the paper was filed, or his or her representative.
    (b) Filing. Papers are considered filed when they are mailed. Date 
of mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (c) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than those required to be 
served as prescribed in Sec. 71.8 shall be made by delivering a copy or 
by placing a copy of the document in the United States mail, postage 
prepaid and addressed, to the party's last known address. When a party 
is represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (d) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 71.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an additional five days will be added to the time permitted for 
any response.



Sec. 71.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the

[[Page 293]]

authority relied upon, and the facts alleged, and shall be filed with 
the ALJ and served on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 71.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative, for the following reasons:
    (1) Failure to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failure to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the proceeding.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 71.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 71.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise closed 
by the ALJ for good cause shown.



Sec. 71.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, double damages and a 
significant civil penalty ordinarily should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e.,

[[Page 294]]

the false, fictitious, or fraudulent claims or statements) charged in 
the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon public 
confidence in the management of Government programs and operations;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 71.32  Location of hearing.

    (a) The hearing may be held:
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 71.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a writtten statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in 
Sec. 71.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to--
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth,
    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as

[[Page 295]]

may be required for a full and true disclosure of the facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of the following:
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party designated by the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 71.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 71.24.



Sec. 71.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 71.24.



Sec. 71.36  Post-hearing briefs.

    ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 71.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 71.3; and
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 71.31.

[[Page 296]]

    (c) The ALJ shall promptly serve the intial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all parties with a statement describing the right of any defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
authority head. If the ALJ fails to meet the deadline contained in this 
paragraph, he or she shall notify the parties of the reason for the 
delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the initial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec. 71.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the authority head and 
shall be final and binding on all parties 30 days after the ALJ denies 
the motion, unless the initial decision is timely appealed to the 
authority head in accordance with Sec. 71.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec. 71.39.



Sec. 71.39  Appeal to authority head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal with the authority head in accordance with this 
section.
    (1) A notice of appeal may be filed at any time within 30 days after 
the ALJ issues an initial decision. However, if another party files a 
motion for reconsideration under Sec. 71.38, consideration of the appeal 
shall be stayed automatically pending resolution of the motion for 
reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The authority head may extend the initial 30 day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30 day period and shows good 
cause.
    (b) If the defendant files a timely notice of appeal with the 
authority head and the time for filing motions for reconsideration under 
Sec. 71.38 has expired, the ALJ shall forward the record of the 
proceeding to the authority head.
    (c) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (d) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (e) There is no right to appear personally before the authority 
head.
    (f) There is no right to appeal any interlocutory ruling by the ALJ.
    (g) In reviewing the initial decision, the authority head shall not 
consider

[[Page 297]]

any objection that was not raised before the ALJ unless the objecting 
party can demonstrate extraordinary circumstances causing the failure to 
raise the objection.
    (h) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there was reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the ALJ for consideration of such additional evidence.
    (i) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment, determined by the ALJ in 
any initial decision.
    (j) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    (k) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under Sec. 71.3 is final and 
not subject to judicial review.



Sec. 71.40  Stays ordered by the Department of Justice.

    If at any time an Assistant Attorney General designated by the 
Attorney General transmits to the authority head a written finding that 
continuation of the administrative process described in this part with 
respect to a claim or statement may adversely affect any pending or 
potential criminal or civil action related to such claim or statement, 
the authority head shall stay the process immediately. The authority 
head may order the process resumed only upon receipt of the written 
authorization of the Assistant Attorney General who ordered the stay.



Sec. 71.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.



Sec. 71.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the authority head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec. 71.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec. 71.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 71.42 or Sec. 71.43, or 
any amount agreed upon in a compromise or settlement under Sec. 71.46, 
may be collected by administrative offset under 31 U.S.C. 3716, except 
that an administrative offset may not be made under this subsection 
against a refund of an overpayment of Federal taxes, then or later owing 
by the United States to the defendant.



Sec. 71.45  Deposit in Treasury of the United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 71.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after

[[Page 298]]

the date on which the ALJ issues an initial decision, except during the 
pendency of any review under Sec. 71.42 or during the pendency of any 
action to collect penalties and assessments under Sec. 71.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 71.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 71.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 71.8 within 6 years after the 
date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a 
notice under Sec. 71.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by written agreement 
of the parties.



Secs. 71.48-71.50  [Reserved]



  Subpart B--Assignment of Responsibilities Regarding Actions by Other 
                                Agencies



Sec. 71.51  Purpose.

    This subpart further implements the Program Fraud Civil Remedies Act 
of 1986. The Act authorizes the Attorney General, or certain officials 
whom the Attorney General may designate, to make determinations or 
otherwise act with respect to another agency's exercise of the 
provisions of the Program Fraud Civil Remedies Act. See, e.g., 31 U.S.C. 
3803(a)(2), 3803(b), 3805. This subpart designates officials within the 
Department of Justice who are authorized to exercise the authorities 
conferred upon the Attorney General by the Program Fraud Civil Remedies 
Act with respect to cases brought or proposed to be brought under it.



Sec. 71.52  Approval of Agency requests to initiate a proceeding.

    (a) The Assistant Attorney General of the Civil Division is 
authorized to act on notices by an agency submitted to the Department of 
Justice pursuant to 31 U.S.C. 3803(a)(2) and, pursuant to the provisions 
of section 3803(b), to approve or disapprove the referral to an agency's 
presiding officer of the allegations of liability stated in such notice.
    (b) The Assistant Attorney General of the Civil Division may
    (1) Require additional information prior to acting as set forth 
above, in which case the 90 day period shall be extended by the time 
necessary to obtain such additional information; and
    (2) Impose limitations and conditions upon such approval or 
disapproval as may be warranted in his or her judgment.



Sec. 71.53  Stays of Agency proceedings at the request of the Department.

    With respect to matters assigned to their divisions, the Assistant 
Attorneys General of the litigating divisions are authorized to 
determine that the continuation of any hearing under 31 U.S.C. 
3803(b)(3) with respect to a claim or statement may adversely affect any 
pending or potential criminal or civil action related to such claim or 
statement, and to so notify the authority head of this determination and 
thereafter to determine when such hearing may resume.



Sec. 71.54  Collection and compromise of liabilities imposed by Agency.

    The Assistant Attorney General of the Civil Division is authorized 
to initiate actions to collect assessments and civil penalties imposed 
under the Program Fraud Civil Remedies Act of 1986, and, subsequent to 
the filing of a petition for judicial review pursuant to section 3805 of 
the Act, to defend such actions and/or to approve settlements and 
compromises of such liability.

[[Page 299]]



PART 73--NOTIFICATIONS TO THE ATTORNEY GENERAL BY AGENTS OF FOREIGN GOVERNMENTS--Table of Contents




Sec.
73.1  Definition of terms.
73.2  Exceptions.
73.3  Form of notification.
73.4  Partial compliance not deemed compliance.
73.5  Termination of notification.
73.6  Relation to other statutes.

    Authority: 18 U.S.C. 951, 28 U.S.C. 509, 510.

    Source: Order No. 1373-89, 54 FR 46608, Nov. 6, 1989, unless 
otherwise noted.



Sec. 73.1  Definition of terms.

    (a) The term agent means all individuals acting as representatives 
of, or on behalf of, a foreign government or official, who are subject 
to the direction or control of that foreign government or official, and 
who are not specifically excluded by the terms of the Act or the 
regulations thereunder.
    (b) The term foreign government includes any person or group of 
persons exercising sovereign de facto or de jure political jurisdiction 
over any country, other than the United States, or over any part of such 
country, and includes any subdivision of any such group or agency to 
which such sovereign de facto or de jure authority or functions are 
directly or indirectly delegated. Such term shall include any faction or 
body of insurgents within a country assuming to exercise governmental 
authority whether such faction or body of insurgents has or has not been 
regarded by the United States as a governing authority.
    (c) The term prior notification means the notification letter, 
telex, or facsimile must be received by the addressee named in Sec. 73.3 
prior to commencing the services contemplated by the parties.
    (d) When used in 18 U.S.C. 951(d)(1), the term duly accredited means 
that the sending State has notified the Department of State of the 
appointment and arrival of the diplomatic or consular officer involved, 
and the Department of State has not objected.
    (e) When used in 18 U.S.C. 951(d) (2) and/or (3), the term 
officially and publicly acknowledged and sponsored means that the person 
described therein has filed with the Secretary of State a fully-executed 
notification of status with a foreign government; or is a visitor, 
officially sponsored by a foreign government, whose status is known and 
whose visit is authorized by an agency of the United States Government; 
or is an official of a foreign government on a temporary visit to the 
United States, for the purpose of conducting official business internal 
to the affairs of that foreign government; or where an agent of a 
foreign government is acting pursuant to the requirements of a Treaty, 
Executive Agreement, Memorandum of Understanding, or other understanding 
to which the United States or an agency of the United States is a party 
and which instrument specifically establishes another mechanism for 
notification of visits by agents and the terms of such visits.
    (f) The term legal commercial transaction, for the purpose of 18 
U.S.C. 951(d)(4), means any exchange, transfer, purchase or sale, of any 
commodity, service or property of any kind, including information or 
intellectual property, not prohibited by federal or state legislation or 
implementing regulations.



Sec. 73.2  Exceptions.

    (a) The exemption provided in 18 U.S.C. 951(d)(4) for a ``legal 
commercial transaction'' shall not be available to any person acting 
subject to the direction or control of a foreign government or official 
where such person is an agent of the Soviet Union, the German Democratic 
Republic, Hungary, Czechoslovakia, Poland, Bulgaria, Romania or Cuba; or 
has been convicted of or entered a plea of nolo contendere to any 
offense under 18 U.S.C. 792-799, 831 or 2381, or under section 11 of the 
Export Administration Act of 1979, 50 U.S.C. app. 2410.
    (b) The provisions of 18 U.S.C. 951(e)(2)(A) do not apply if the 
Attorney General, after consultation with the Secretary of State, 
determines and reports to Congress that the national security or foreign 
policy interests of the United States require that these provisions do 
not apply in specific circumstances to agents of such country.

[[Page 300]]

    (c) The provisions of 18 U.S.C. 951(e)(2)(B) do not apply to a 
person described in this clause for a period of more than five years 
beginning on the date of the conviction or the date of entry of the plea 
of nolo contendere.



Sec. 73.3  Form of notification.

    (a) Notification shall be made by the agent in the form of a letter, 
telex, or facsimile addressed to the Attorney General, directed to the 
attention of the Registration Unit of the Criminal Division, except for 
those agents described in paragraphs (b) and (c) of this section. The 
document shall state that it is a notification under 18 U.S.C. 951, and 
provide the name or names of the agent making the notification, the firm 
name, if any, and the business address or addresses of the agent, the 
identity of the foreign government or official for whom the agent is 
acting, and a brief description of the activities to be conducted for 
the foreign government or official and the anticipated duration of the 
activities. Each notification shall contain a certification, pursuant to 
28 U.S.C. 1746, that the notification is true and correct.
    (b) Notification by agents engaged in law enforcement investigations 
or regulatory agency activity shall be in the form of a letter, telex, 
or facsimile addressed to the Attorney General, directed to the 
attention of Interpol-United States National Central Bureau. 
Notification by agents engaged in intelligence, counterintelligence, 
espionage, counterespionage or counterterrorism assignment or service 
shall be in the form of a letter, telex, or facsimile addressed to the 
Attorney General, directed to the attention of the nearest FBI Legal 
Attache. In case of exceptional circumstances, notification shall be 
provided contemporaneously or as soon as reasonably possible by the 
agent or the agent's supervisor. The letter, telex, or facsimile shall 
include the information set forth in paragraph (a) of this section.
    (c) Notification made by agents engaged in judicial investigations 
pursuant to treaties or other mutual assistance requests or letters 
rogatory, shall be made in the form of a letter, telex, or facsimile 
addressed to the Attorney General, directed to the attention of the 
Office of International Affairs, Criminal Division. The letter, telex, 
or facsimile shall include the information set forth in paragraph (a) of 
this section.
    (d) Any subsequent change in the information required by paragraph 
(a) of this section shall require a notification within 10 days of the 
change.
    (e) Notification under 18 U.S.C. 951 shall be effective only if it 
has been done in compliance with this section, or if the agent has filed 
a registration under the Foreign Agents Registration Act of 1938, as 
amended, 22 U.S.C. 611, et seq., which provides the information required 
by paragraphs (a) and (d) of this section.



Sec. 73.4  Partial compliance not deemed compliance.

    The fact that a notification has been filed shall not necessarily be 
deemed full compliance with 18 U.S.C. 951 or these regulations on the 
part of the agent; nor shall it indicate that the Attorney General has 
in any way passed on the merits of such notification or the legality of 
the agent's activities; nor shall it preclude prosecution, as provided 
for in 18 U.S.C. 951, for failure to file a notification when due, or 
for a false statement of a material fact therein, or for an omission of 
a material fact required to be stated therein.



Sec. 73.5  Termination of notification.

    (a) An agent shall, within 30 days after the termination of his 
agency relationship, advise the Attorney General of such change.
    (b) All notifications pursuant to this part will automatically 
expire five years from the date of the most recent notification.
    (c) An agent, whose notification expires pursuant to (b) above, must 
file a new notification within 10 days if the relationship continues.



Sec. 73.6  Relation to other statutes.

    The filing of a notification under this section shall not be deemed 
compliance with the requirements of the Foreign Agents Registration Act 
of 1938, as amended, 22 U.S.C. 611, et seq., nor compliance with any 
other statute.

[[Page 301]]



PART 74--CIVIL LIBERTIES ACT REDRESS PROVISION--Table of Contents




                           Subpart A--General

Sec.
74.1  Purpose.
74.2  Definitions.

                   Subpart B--Standards of Eligibility

74.3  Eligibility determinations.
74.4  Individuals excluded from compensation pursuant to section 108(B) 
          of the Act.

                 Subpart C--Verification of Eligibility

74.5  Identification of eligible persons.
74.6  Location of eligible persons.

                   Subpart D--Notification and Payment

74.7  Notification of eligibility.
74.8  Notification of payment.
74.9  Conditions of acceptance of payment.
74.10  Authorization for payment.
74.11  Effect of refusal to accept payment.
74.12  Order of payment.
74.13  Payment in the case of a deceased eligible individual.
74.14  Determination of the relationship of statutory heirs.

                      Subpart E--Appeal Procedures

74.15  Notice of the right to appeal a finding of ineligibility.
74.16  Procedures for filing an appeal.
74.17  Action on appeal.

Appendix A to Part 74--Declarations of Eligibility by Persons Identified 
          by the Office of Redress Administration and Requests for 
          Documentation

    Authority: 50 U.S.C. app. 1989b.

    Source: Order No. 1359-89, 54 FR 34161, Aug. 18, 1989, unless 
otherwise noted.



                           Subpart A--General



Sec. 74.1  Purpose.

    The purpose of this part is to implement section 105 of the Civil 
Liberties Act of 1988, which authorizes the Attorney General to locate, 
identify, and make payments to all eligible individuals of Japanese 
ancestry who were evacuated, relocated, and interned during World War II 
as a result of government action.



Sec. 74.2  Definitions.

    (a) The Act means the Civil Liberties Act of 1988, Public Law 100-
383, 102 Stat. 903, as codified at 50 U.S.C. app. 1989b et seq., (August 
10, 1988).
    (b) The Administrator means the Administrator in charge of the 
Office of Redress Administration of the Civil Rights Division.
    (c) Assembly centers and relocation centers means those facilities 
established pursuant to the acts described in Sec. 74.4(i)-(ii).
    (d) Child of an eligible individual means a recognized natural 
child, an adopted child, or a step-child who lived with the eligible 
person in a regular parent-child relationship.
    (e) The Commission means the Commission on Wartime Relocation and 
Internment of Civilians established by the Commission on Wartime 
Relocation and Internment Act, 50 U.S.C. app. 1981 note.
    (f) Evacuation, relocation, and internment period means that period 
beginning December 7, 1941, and ending June 30, 1946.
    (g) The Fund means the Civil Liberties Public Education Fund in the 
Treasury of the United States administered by the Secretary of the 
Treasury pursuant to section 104 of the Civil Liberties Act of 1988.
    (h) The Office means the Office of Redress Administration 
established in the Civil Rights Division of the U.S. Department of 
Justice to execute the responsibilities and duties assigned the Attorney 
General pursuant to section 105 of the Civil Liberties Act of 1988.
    (i) Parent of an eligible individual means the natural father and 
mother, or fathers and mothers through adoption.
    (j) The Report means the published report by the Commission on 
Wartime Relocation and Internment of Civilians of its findings and 
recommendations entitled, Personal Justice Denied, Part I and Part II.
    (k) Spouse of an eligible individual means a wife or husband of an 
eligible individual who was married to that eligible person for at least 
one year immediately before the death of the eligible individual.

[[Page 302]]



                   Subpart B--Standards of Eligibility



Sec. 74.3  Eligibility determinations.

    (a) An individual is found to be eligible if such an individual:
    (1) Is of Japanese ancestry; and
    (2) Was living on the date of enactment of the Act, August 10, 1988; 
and
    (3) During the evacuation, relocation, and internment period was--
    (i) A United States citizen; or
    (ii) A permanent resident alien who was lawfully admitted into the 
United States; or
    (iii) An alien, who after the evacuation, relocation and internment 
period, was permitted by applicable statutes to obtain the status of 
permanent resident alien extending to the internment period; and
    (4) Was confined, held in custody, relocated, or otherwise deprived 
of liberty or property as a result of--
    (i) Executive Order 9066, dated February 19, 1942;
    (ii) The Act entitled ``An Act to provide a penalty for violation of 
restrictions or orders with respect to persons entering, remaining, 
leaving, or committing any act in military areas or zones,'' approved 
March 21, 1942; or
    (iii) Any other Executive order, Presidential proclamation, law of 
the United States, directive of the Armed Forces of the United States, 
or other action taken by or on behalf of the United States or its 
agents, representatives, officers, or employees, respecting the 
evacuation, relocation, or internment of individuals solely on the basis 
of Japanese ancestry.
    (b) The following individuals are deemed to have suffered a loss 
within the meaning of paragraph (a)(4) of this section:
    (1) Individuals who were interned under the supervision of the 
wartime Relocation Authority, the Department of Justice or the United 
States Army; or
    (2) Individuals enrolled on the records of the United States 
Government during the period beginning on December 7, 1941, and ending 
June 30, 1946, as being in a prohibited military zone, including those 
individuals who, during the voluntary phase of the government's 
evacuation program between the issuance of Public Proclamation No. l on 
March 2, 1942, and the enforcement of Public Proclamation No. 4 on March 
29, 1942, filed a ``Change of Residence'' card with the Wartime Civil 
Control Administration; or
    (3) Individuals ordered by the Navy to leave Bainbridge Island, off 
the coast of the State of Washington, or Terminal Island, near San 
Pedro, California; or
    (4) Individuals who were members of the Armed Forces of the United 
States at the time of the evacuation and internment period and whose 
domicile was in a prohibited zone and as a result of the government 
action lost property; or
    (5) Individuals who were members of the Armed Forces of the United 
States at the time of the evacuation and internment period and were 
prohibited by government regulations from visiting their interned 
families or forced to submit to undue restrictions amounting to a 
deprivation of liberty prior to visiting their families; or
    (6) Individuals who, after March 29, 1942, evacuated and relocated 
from the West Coast as a result of government action, including those 
who obtained written permission to travel to a destination outside of 
the unauthorized areas from the Western Defense Command and the Fourth 
Army; or
    (7) Individuals born in assembly centers, relocation centers or 
internment camps to parents of Japanese ancestry who had been evacuated, 
relocated or interned pursuant to paragraph (a)(4) of this section, 
including children born in the United States to parents of Japanese 
ancestry who were relocated to the United States from other countries in 
the Americas during the internment period; or
    (8) Individuals who, prior to or at the time of evacuation, 
relocation or internment period, were in institutions, such as a 
hospital, pursuant to acts described in paragraph (a)(4) and, were 
placed under the custody of the Wartime Relocation Authority and 
confined within the grounds of the institution and not permitted to 
return to their homes or to go anywhere else.
    (9) Individuals born on or before January 20, 1945, to a parent or 
parents who had been evacuated, relocated, or interned from his or her 
original place

[[Page 303]]

of residence in the prohibited military zones on the West Coast, on or 
after March 2, 1942, pursuant to paragraph (a)(4) of this section, and 
who were excluded by Executive Order 9066 or military proclamations 
issued under its authority, from their parent's or parents' original 
place of residence in the prohibited military zones on the West Coast. 
This also includes those individuals who were born to a parent or 
parents who had ``voluntarily'' evacuated from his or her original place 
of residence in the prohibited military zones on the West Coast, on or 
after March 2, 1942, pursuant to paragraph (b)(3) of this section, and 
who were excluded by Executive Order 9066 or military proclamations 
issued under its authority, from their parent's or parents' original 
place of residence in the prohibited military zones on the West Coast.
    (c) Paragraph (b) of this section is not an exhaustive list of 
individuals who are deemed eligible for compensation; there may be other 
individuals determined to be eligible under the Act on a case-by-case 
basis by the Redress Administrator.

[Order No. 1359-89, 54 FR 34161, Aug. 18, 1989, as amended by Order No. 
2077-97, 62 FR 19934, Apr. 24, 1997]



Sec. 74.4  Individuals excluded from compensation pursuant to section 108(B) of the Act.

    (a) The term ``eligible individual'' does not include any individual 
who, during the period beginning on December 7, 1941, and ending on 
September 2, 1945, relocated to a country while the United States was at 
war with that country.
    (b) Nothing in paragraph (a) of this section is meant to exclude 
from eligibility any person who, during the period beginning on December 
7, 1941, and ending on September 2, 1945, relocated to a country while 
the United States was at war with that country, and who had not yet 
reached the age of 21 and was not emancipated as of the date of 
departure from the United States, provided that such person is otherwise 
eligible for redress under these regulations and the following 
standards:
    (1) Persons who were 21 years of age or older, or emancipated 
minors, on the date they departed the United States for Japan are 
subject to an irrebuttable presumption that they relocated to Japan 
voluntarily and will be ineligible.
    (2) Persons who served in the active military service on behalf of 
the Government of Japan or an enemy government during the period 
beginning on December 7, 1941, and ending on September 2, 1945, are 
subject to an irrebuttable presumption that they departed the United 
States voluntarily for Japan. If such individuals served in the active 
military service of an enemy country, they must inform the Office of 
such service and, as a result, will be ineligible.

[Order No. 2056-96, 61 FR 51012, Sept. 30, 1996]



                 Subpart C--Verification of Eligibility



Sec. 74.5  Identification of eligible persons.

    (a) The Office shall establish an information system with names and 
other identifying information of potentially eligible individuals from 
the following sources:
    (1) Official sources:
    (i) The National Archives;
    (ii) The Department of Justice;
    (iii) The Social Security Administration;
    (iv) Internal Revenue Service;
    (v) University libraries;
    (vi) State and local libraries;
    (vii) State and local historical societies;
    (viii) State and local agencies.
    (2) Unofficial sources:
    (i) Potentially eligible individuals;
    (ii) Eligible individuals, relatives, legal guardians, 
representatives, or attorneys;
    (iii) Civic associations;
    (iv) Religious organizations;
    (v) Such other sources that the Administrator determines are 
appropriate.
    (b) Historic information pertaining to individuals listed in 
official United States Government records will be analyzed to determine 
if such persons are eligible for compensation as set forth in section 
108 of the Act.

[[Page 304]]

    (c) Persons not listed in the historic records of the United States 
Government who volunteer information pertaining to their eligibility may 
be required by the Administrator to submit affidavits and documentary 
evidence to support assertions of eligibility.



Sec. 74.6  Location of eligible persons.

    The Office shall compare the names and other identifying information 
of eligible individuals from the historical official records of the 
United States Government with current information from both official and 
unofficial sources in the information system to determine if such 
persons are living or deceased and, if living, the present location of 
these individuals.



                   Subpart D--Notification and Payment



Sec. 74.7  Notification of eligibility.

    (a) Each individual who has been found to be eligible or their 
statutory heirs will be sent written notification of such status by the 
Office. Enclosed with the notification will be a declaration to be 
completed by the person so notified, or by his or her legal guardian, 
and a request for documentation of identity.
    (b) The declaration and submitted documents (appendix A to part 74) 
will be used for a final verification of eligibility in order to ensure 
that the person identified as eligible by the Office is in fact the 
person who will receive payment, and shall include a request for the 
following information:
    (1) Current legal name;
    (2) Proof of name change if the current legal name is different from 
the name used when evacuated or interned, such as a marriage certificate 
or other evidence of the name change as described in appendix A;
    (3) Date of birth;
    (4) Proof of date of birth as set forth in appendix A;
    (5) Current address;
    (6) Proof of current address as set forth in appendix A;
    (7) Current telephone number;
    (8) Social Security Number;
    (9) Name when evacuated or interned;
    (10) Proof of guardianship by a person executing a declaration on 
behalf of an eligible person as set forth in appendix A.
    (11) Proof of the relationship to a deceased eligible individual by 
a statutory heir as set forth in Sec. 74.13 and appendix A;
    (12) Proof of the death of a deceased eligible person as set forth 
in appendix A.
    (c) The individual must submit a signed and dated statement swearing 
under penalty of perjury to the truth of all the information provided on 
the declaration. A natural or legal guardian, or any other person, 
including the spouse of an eligible person, who the Administrator 
determines is charged with the care of the individual, may submit a 
signed and dated statement on behalf of the eligible individual who is 
incompetent or otherwise under a legal disability.
    (d) Upon receipt of an individual's declaration and documentation, 
the Administrator shall make a determination of verification of the 
identity of the eligible person.
    (e) Each person determined not to be preliminarily eligible after 
review of the submitted documentation will be notified by the Redress 
Administrator of the finding of ineligibility and the right to petition 
for a reconsideration of such a finding.



Sec. 74.8  Notification of payment.

    The Administrator shall, when funds are appropriated for payment, 
notify an eligible individual in writing of his or her eligibility for 
payment. Section 104 of the Act limits any appropriation to not more 
than $500,000,000 for any fiscal year.



Sec. 74.9  Conditions of acceptance of payment.

    (a) Each eligible individual will be deemed to have accepted payment 
if, after receiving notification of eligibility from the Redress 
Administrator, the eligible individual does not refuse payment in the 
manner described in Sec. 74.11.
    (b) Acceptance of payment shall be in full satisfaction of all 
claims arising out of the acts described in Sec. 74.3(a)(4).

[[Page 305]]



Sec. 74.10  Authorization for payment.

    (a) Upon determination by the Administrator of the eligibility of an 
individual, the authorization for payment of $20,000 to the eligible 
individual will be certified by the Assistant Attorney General of the 
Civil Rights Division to the Assistant Attorney General of the Justice 
Management Division, who will give final authorization to the Secretary 
of the Treasury for payment out of the funds appropriated for this 
purpose.
    (b) Authorization of payments made to survivors of eligible persons 
will be certified in the manner described in paragraph (a) of this 
section to the Secretary of the Treasury for payment to the individual 
member or members of the class of survivors entitled to receive payment 
under the procedures set forth in Sec. 74.13. Payments to statutory 
heirs of a deceased eligible individual will be made only after all the 
statutory heirs of the deceased person have been identified and verified 
by the Office.
    (c) Any payment to an eligible person under a legal disability, may, 
in the discretion of the Assistant Attorney General for Civil Rights, be 
certified for payment for the use of the eligible person, to the natural 
or legal guardian, committee, conservator or curator, or, if there is no 
such natural or legal guardian, committee, conservator or curator, to 
any other person, including the spouse of such eligible person, who the 
Administrator determines is charged with the care of the eligible 
person.



Sec. 74.11  Effect of refusal to accept payment.

    If an eligible individual who has been notified by the Administrator 
of his or her eligibility refuses in writing within eighteen months of 
the notification to accept payment, the written record of refusal will 
be filed with the Office and the amount of payment as described in 
Sec. 74.10 shall remain in the Fund and no payment may be made as 
described in Sec. 74.12 to such individual or his or her survivors at 
any time after the date of receipt of the written refusal.



Sec. 74.12  Order of payment.

    Payment will be made in the order of date of birth pursuant to 
section 105(b) of the Act. Therefore, when funds are appropriated, 
payment will be made to the oldest eligible individual living on the 
date of the enactment of the Act, August 10, 1988, (or his or her 
statutory heirs) who has been located by the Administrator at that time. 
Payments will continue to be made until all eligible individuals have 
received payment.



Sec. 74.13  Payment in the case of a deceased eligible individual.

    In the case of an eligible individual as described in Sec. 74.3 who 
is deceased, payment shall be made only as follows--
    (a) If the eligible individual is survived by a spouse who is living 
at the time of payment, such payment shall be made to such surviving 
spouse.
    (b) If there is no surviving spouse as described in paragraph (a) of 
this subsection, such payment shall be made in equal shares to all 
children of the eligible individual who are living at the time of 
payment.
    (c) If there is no surviving spouse described in paragraph (a) of 
this section, and if there are no surviving children as described in 
paragraph (b) of this section, such payment shall be made in equal 
shares to the parents of the deceased eligible individual who are living 
at the time of payment.
    (d) If there are no surviving spouses, children or parents as 
described in paragraphs (a), (b), and (c) of this section, the amount of 
such payment shall remain in the Fund and may be used only for the 
purposes set forth in section 106(b) of the Act.



Sec. 74.14  Determination of the relationship of statutory heirs.

    (a) A spouse of a deceased eligible individual must establish his or 
her marriage by one (or more) of the following:
    (1) A copy of the public record of marriage, certified or attested;
    (2) An abstract of the public record, containing sufficient data to 
identify the parties, the date and place of 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

[[Page 306]]

public official authorized to certify the record;
    (3) A certified copy of the religious record of marriage;
    (4) The official report from a public agency as to a marriage which 
occurred while the deceased eligible individual was employed by such 
agency;
    (5) An affidavit of the clergyman or magistrate who officiated;
    (6) The original certificate of marriage accompanied by proof of its 
genuineness;
    (7) The affidavits or sworn statements of two or more eyewitnesses 
to the ceremony;
    (8) 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, 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 and wife and whether they were 
generally accepted as such in the communities in which they lived; or
    (9) Any other evidence which would reasonably support a finding by 
the Administrator that a valid marriage actually existed.
    (b) A child should establish that he or she is the child of a 
deceased eligible individual by one of the following types of evidence:
    (1) A birth certificate showing that the deceased eligible 
individual was the child's parent;
    (2) An acknowledgment in writing signed by the deceased eligible 
individual;
    (3) Evidence that the deceased eligible individual has been 
identified as the child's parent by a judicial decree ordering the 
deceased eligible individual to contribute to the child's support or for 
other purposes; or
    (4) Any other evidence that 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 deceased eligible individual was the informant 
and was named as the parent of the child;
    (ii) Affidavits or sworn statements of a person who knows that the 
deceased eligible individual accepted the child as his or hers; or
    (iii) Information obtained from public records or a public agency, 
such as school or welfare agencies, which shows that with the deceased 
eligible individual's knowledge, the deceased eligible individual was 
named as the parent of the child.
    (c) Except as may be provided in paragraph (b) of this section, 
evidence of the relationship by an adopted child must be shown by a 
certified copy of the decree of adoption. 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) The relationship of a step-child to a deceased eligible 
individual shall be demonstrated by--
    (1) Evidence of birth to the spouse of the deceased eligible 
individual as required by paragraphs (e) and (f) of this section;
    (2) Evidence of adoption as required by section (b) of this section 
when the step-child was adopted by the spouse;
    (3) Other evidence which reasonably supports the finding of a 
parent-child relationship between the child and the spouse;
    (4) Evidence that the step-child was either living with or in a 
parent-child relationship with the deceased eligible individual at the 
time of the eligible individual's death; and
    (5) Evidence of the marriage of the deceased eligible individual and 
the step-child's natural or adoptive parent, as required by paragraph 
(a) of this section.

[[Page 307]]

    (e) A parent of a deceased eligible individual may establish his or 
her parenthood of the deceased eligible individual by providing one of 
the following types of evidence:
    (1) A birth certificate that shows the person to be the deceased 
eligible individual's parent;
    (2) An acknowledgment in writing signed by the person before the 
eligible individual's death; or
    (3) Any other evidence which reasonably supports a finding of such a 
parent-child relationship, such as--
    (i) A certified copy of the public record of birth or a religious 
record showing that the person was the informant and was named as the 
parent of the deceased eligible individual;
    (ii) Affidavits or sworn statements of persons who know the person 
had accepted the deceased eligible individual as his or her child; or
    (iii) Information obtained from public records or a public agency 
such as school or welfare agencies, which shows that with the deceased 
eligible individual's knowledge, the person had been named as parent of 
the child.
    (f) An adoptive parent of a deceased eligible individual must show 
one of the following as evidence--
    (1) A certified copy of the decree of adoption and such other 
evidence as may be necessary; or
    (2) In jurisdictions where petition must be made to the court for 
release of such documents or information, or where release of such 
documents or information is prohibited, a revised birth certificate 
showing the person as the deceased eligible individual's parent will 
suffice.



                      Subpart E--Appeal Procedures



Sec. 74.15  Notice of the right to appeal a finding of ineligibility.

    Persons determined to be ineligible by the Administrator will be 
notified in writing of the determination, the right to petition for a 
reconsideration of the determination of ineligibility to the Assistant 
Attorney General for Civil Rights, and the right to submit any 
documentation in support of eligibility.



Sec. 74.16  Procedures for filing an appeal.

    A request for reconsideration shall be made to the Assistant 
Attorney General for Civil Rights within 60 days of the receipt of the 
notice from the Administrator of a determination of ineligibility. The 
request shall be made in writing, addressed to the Assistant Attorney 
General of the Civil Rights Division, P.O. Box 65808, Washington, DC 
20035-5808. Both the envelope and the letter of appeal itself must be 
clearly marked: ``Redress Appeal.'' A request not so addressed and 
marked shall be forwarded to the Office of the Assistant Attorney 
General for Civil Rights, or the official designated to act on his 
behalf, as soon as it is identified as an appeal of eligibility. An 
appeal that is improperly addressed shall be deemed not to have been 
received by the Department until the Office receives the appeal, or 
until the appeal would have been so received with the exercise of due 
diligence by Department personnel.



Sec. 74.17  Action on appeal.

    (a) The Assistant Attorney General or the official designated to act 
on his behalf shall:
    (1) Review the original determination;
    (2) Review additional information or documentation submitted by the 
individual to support a finding of eligibility;
    (3) Notify the petitioner when a determination of ineligibility is 
reversed on appeal; and
    (4) Inform the Redress Administrator.
    (b) Where there is a decision affirming the determination of 
ineligibility, the letter to the individual shall include a statement of 
the reason or reasons for the affirmance.
    (c) A decision of affirmance shall constitute the final action of 
the Department on that redress appeal.

[[Page 308]]

Appendix A to Part 74--Declarations of Eligibility by Persons Identified 
 by the Office of Redress Administration and Requests for Documentation

                                 Form A:

   Declaration of Eligibility by Persons Identified by the Office of 
                         Redress Administration

U.S. Department of Justice
Civil Rights Division
Office of Redress Administration

    This declaration shall be executed by the identified eligible person 
or such person's designated representative.
    Complete the following information:

(1) Current Legal Name:_________________________________________________
(2) Current Address:
Street:_________________________________________________________________
City, State and Zip Code:_______________________________________________
________________________________________________________________________
(3) Telephone Number:
________________________________________________________________________
    (Home)
________________________________________________________________________
    (Business)
(4) Social Security Number:_____________________________________________
(5) Date of Birth:______________________________________________________
(6) Name Used When Evacuated or Interned:_______________________________
    Read the following carefully before signing this document. A False 
Statement may be grounds for punishment by fine (U.S. Code, title 31, 
section 3729), and fine or imprisonment or both (U.S. Code, title 18, 
section 287 and section 1001).
    I declare under penalty of perjury that the foregoing is true and 
correct.
________________________________________________________________________
    Signature
________________________________________________________________________
    Date

    Privacy Act Statement: The authority for collecting this information 
is contained in 50 U.S.C. app. 1989b. The information that you provide 
will be used principally for verifying eligible persons for payment 
under the restitution provision of the Civil Liberties Act of 1988.
    Required Documentation: The following documentation must be 
submitted with the above Declaration to complete your verification.

                             DOCUMENTATION:

                            I. Identification

    A document with your current legal name and address. For example, 
you might send a bank or financial statement, or a monthly utility bill. 
Submit either a notarized copy of the record or an original that you do 
not need back.

                    II. One Document of Date of Birth

    A certified copy of a birth certificate or a copy of another record 
of birth that has been certified by the custodian of the records. For 
example, you might send a religious record which shows your date of 
birth, or a hospital birth record. If you do not have any record of your 
birth the Administrator will accept affidavits of two or more persons 
attesting to the date of your birth.
    If your notification letter says that the Social Security 
Administration has confirmed your date of birth, you do not have to send 
us any further evidence of your birth date.

                    III. One Document of Name Change

    If your current legal name is the same as your name when evacuated 
or interned, this section does not apply.
    This section is only required for persons whose current legal name 
is different from the name used when evacuated or interned.
    1. A certified copy of the public record of marriage.
    2. A certified copy of the divorce decree.
    3. A certified copy of the court order of a name change.
    4. Affidavits or sworn statements of two or more persons attesting 
to the name change.

              IV. One Document of Evidence of Guardianship

    If you are executing this document for the person identified as 
eligible, you must submit evidence of your authority.
    If you are the legally-appointed guardian, committee, or other 
legally-designated representative of such an individual, the evidence 
shall be a certificate executed by the proper official of the court 
appointment.
    If you are not such a legally-designated representative, the 
evidence shall be an affidavit describing your relationship to the 
recipient or the extent to which you have the care of the recipient or 
your position as an officer of the institution in which the recipient is 
institutionalized.

                                 Form B:

Declaration of Verification by Persons Identified as Statutory Heirs by 
                  the Office of Redress Administration

U.S. Department of Justice
Civil Rights Division
Office of Redress Administration

    This declaration shall be executed by the spouse of a deceased 
eligible individual as statutory heir in accordance with section 
105(a)(7) of the Civil Liberties Act of 1988, 50 U.S.C. app. 1989b.
    Complete the following information:

(1) Current Legal Name:_________________________________________________
(2) Current Address:
Street:_________________________________________________________________

[[Page 309]]

City, State and Zip Code:_______________________________________________
________________________________________________________________________
(3) Telephone Number:
________________________________________________________________________
    (Home)
________________________________________________________________________
    (Business)
(4) Social Security Number:_____________________________________________
(5) Date of Birth:______________________________________________________
(6) Relationship to the Deceased:_______________________________________
(8) Date of marriage to the Deceased:___________________________________
    Read the following carefully before signing this document.

    A False Statement may be grounds for punishment by fine (U.S. Code, 
title 31, section 3729), and fine or imprisonment or both (U.S. Code, 
title 18, sections 287 and section 1001).
    I declare under penalty of perjury that the foregoing is true and 
correct.

________________________________________________________________________
    Signature
________________________________________________________________________
    Date
    Privacy Act Statement: The authority for collecting this information 
is contained in 50 U.S.C. app. 1989b. The information that you provide 
will be used principally for verifying eligible persons for payment 
under the restitution provision of the Civil Liberties Act of 1988.
    Required Documentation: The following documentation must be 
submitted with the above Declaration to complete your verification.

                             DOCUMENTATION:

 I. One Document as Evidence of the Deceased Eligible Individual's Death

    1. A certified copy or extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury.
    2. A certificate by the custodian of the public record of death.
    3. A statement of the funeral director or attending physician, or 
intern of the institution where death occurred.
    4. A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States.
    5. If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    6. If you cannot obtain any of the above evidence of your spouse's 
death, you must submit other convincing evidence to ORA such as the 
signed statements of two or more people with personal knowledge of the 
death, giving the place, date, and cause of death.

 II. One Document as Evidence of Your Marriage to the Deceased Eligible 
                               Individual

    1. A copy of the public records of marriage, certified or attested, 
or an abstract of the public records, containing sufficient data to 
identify the parties, the date and place of 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. An offical report from a public agency as to a marriage which 
occurred while the deceased eligible individual who was employed by such 
agency.
    3. The affidavit of the clergyman or magistrate who officiated.
    4. The certified copy of a certificate of marriage attested to by 
the custodian of the records.
    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, 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 and wife and whether they were 
generally accepted as such in the communities in which they lived.
    7. Any other evidence which would reasonably support a belief by the 
Administrator that a valid marriage actually existed.

                           III. Identification

    A document with your current legal name and address. For example, 
you might send a bank or financial statement or a monthly utility bill. 
Submit either a notarized copy of the record or an original that you do 
not need back.

                    IV. One Document of Date of Birth

    A certified copy of a birth certificate or a copy of another record 
of birth that has been certified by the custodian of the records. For 
example, you might send a copy of a religious record which shows your 
date of birth, or a hospital birth record. If you do not have any record 
of your birth, the Administrator will accept affidavits of two or more 
persons attesting to the date of your birth.

[[Page 310]]

    If your notification letter says that the Social Security 
Administration has confirmed your date of brith, you do not have to send 
us any further evidence of your birth date.

                     V. One Document of Name Change

    If your current legal last name is the same as the last name of the 
deceased eligible individual or the same as at the time of marriage this 
section does not apply.
    This section is only required for persons whose current legal last 
name is different from the last name of the deceased eligible.
    1. A certified copy of the public record of marriage.
    2. A certified copy of the divorce decree.
    3. A certified copy of the court order of a name change.
    4. Affidavits or sworn statements of two or more persons attesting 
to the name change.

              VI. One Document of Evidence of Guardianship

    If you are executing this document for the person identified as 
eligible, you must submit evidence of your authority.
    If you are the legally-appointed guardian, committee, or other 
legally-designated representative of such an individual, the evidence 
shall be a certificate executed by the proper official of the court 
appointment.
    If you are not such a legally-designated representative, the 
evidence shall be an affidavit describing your relationship to the 
recipient or the extent to which you have the care of the recipient or 
your position as an officer of the institution in which the recipient is 
institutionalized.

                                 Form C:

   Declaration of Verification by Persons Identified by the Office of 
                Redress Administration as Statutory Heirs

U.S. Department of Justice
Civil Rights Division
Office of Redress Administration

    This declaration shall be executed by the child of a deceased 
eligible individual as a statutory heir in accordance with section 
105(a)(7) of the Civil Liberties Act of 1988, 50 U.S.C. app. 1988b.
    Complete the following information:

(1) Current Legal Name:_________________________________________________
(2) Current Address:
Street:_________________________________________________________________
City, State and Zip Code:_______________________________________________
________________________________________________________________________
(3) Telephone Number:
________________________________________________________________________
    (Home)
________________________________________________________________________
    (Business)
(4) Social Security Number:_____________________________________________
(5) Date of Birth:______________________________________________________
(6) Relationship to the Deceased:_______________________________________
(7) List the names and address (if known) of all other children of the 
deceased eligible individual. This includes all recognized natural 
children, step-children who lived with the deceased eligible and adopted 
children. Enter the date of death for any persons who are deceased.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    Read the following carefully before signing this document. A False 
Statement may be grounds for punishment by fine (U.S. Code, title 31, 
section 3729), and fine or imprisonment or both (U.S. Code, title 18, 
section 287 and section 1001).
    I declare under penalty or perjury that the foregoing is true and 
correct.
________________________________________________________________________
    Signature
________________________________________________________________________
    Date
    Privacy Act Statement: The authority for collecting this information 
is contained in 50 U.S.C. app. 1989b. The information that you provide 
will be used principally for verifying eligible persons for payment 
under the restitution provision of the Civil Liberties Act of 1988.

   Required Documentation for Children of Deceased Eligible Individual

    The following documentation must be submitted with the above 
Declaration to complete your verification.

                             DOCUMENTATION:

           I. One Document as Evidence of Your Parent's Death

    1. A certified copy or extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury.
    2. A certificate by the custodian of the public record of death.
    3. A statement of the funeral director or attending physician, or 
intern of the institution where death occurred.
    4. A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States.
    5. If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    6. If you cannot obtain any of the above evidence of your parent's 
death, you must submit other convincing evidence to ORA such as the 
signed statements of two or more people with personal knowledge of the 
death, giving the place, date, and cause of death.

[[Page 311]]

    II. One Document as Evidence of Your Relationship to Your Parent

                              Natural Child

    1. A certified copy of a birth certificate showing that the deceased 
eligible individual was your parent.
    2. If the birth certificate does not show the deceased eligible 
individual as your parent, other proof would be a certified copy of:
    (a) An acknowledgment in writing signed by the deceased eligible 
individual.
    (b) A judicial decree ordering the deceased eligible individual to 
contribute to your support or for other purposes.
    (c) A certified copy of the public record of birth or a religious 
record showing that the deceased eligible individual was the informant 
and was named as your parent.
    (d) Affidavits or sworn statements of a person who knows that the 
deceased eligible individual accepted the child as his or hers.
    (e) A record obtained from a public agency or public records, such 
as school or welfare agencies, which shows that with the deceased 
eligible individual's knowledge, the deceased eligible individual was 
named as the parent of the child.

                              Adopted Child

    Evidence of the relationship by an adopted child must be shown by a 
certified copy of the decree of adoption. 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.

                               Step-Child

    Submit all three as evidence of the step-child relationship.
    1. One document as evidence of birth to the spouse of the deceased 
eligible individual as listed under the ``natural child'' and ``adoptive 
child'' sections to show that you were born to or adopted by the 
deceased individual's spouse, or other evidence which reasonably 
supports the existence of a parent-child relationship between you and 
the spouse of the deceased eligible person.
    2. One document as evidence that you were either living with or in a 
parent-child relationship with the deceased eligible individual at the 
time of the eligible individual's death.
    3. One document as evidence of the marriage of the deceased eligible 
individual and the spouse, such as a copy of the record of marriage, 
certified or attested, or by an abstract of the public records, 
containing sufficient data to identify the parties and the date and 
place of marriage issued by the officer having custody of the record, or 
a certified copy of a religious record of marriage.

                           III. Identification

    A document with your current legal name and address. For example, 
you might send a bank or financial statement, or a monthly utility bill. 
Submit either a notarized copy of the record or an original that you do 
not want back.

                    IV. One Document of Date of Birth

    A certified copy of a birth certificate or a copy of another record 
of birth that has been certified by the custodian of the records. For 
example, you might send a copy of a religious record which shows your 
date of birth, or a hospital birth record. If you do not have any record 
of your birth, the Administrator will accept affidavits of two or more 
persons attesting to the date of your birth.
    If your notification letter says that the Social Security 
Administration has confirmed your date of birth, you do not have to send 
us any further evidence of your birth date.

                     V. One Document of Name Change

    If your current legal last name is the same as the last name of the 
deceased eligible, this section does not apply.
    This section is only required for persons whose current legal last 
name is different from the last name of the deceased eligible.
    Submit one of the following as evidence of the change of legal name.
    1. A certified copy of the public record of marriage.
    2. A certified copy of the divorce decree.
    3. A certified copy of the court order of a name change.
    4. Affidavits or sworn statements of two or more persons attesting 
to the name change.

              VI. One Document of Evidence of Guardianship

    If your are executing this document for the person identified as an 
eligible beneficiary, you must submit evidence of your authority.
    If you are a legally-appointed guardian, committee, or other 
legally-designated representative of such an individual, the evidence 
shall be a certificate executed by the proper official of the court 
appointment.
    If you are not such a legally-designated representative, the 
evidence shall be an affidavit describing your relationship to the 
recipient or the extent to which you have the care of the recipient or 
your position as an officer of the institution in which the recipient is 
institutionalized.

                                 Form D:

    Declaration of Verification by Persons Identified by the Office of 
Redress Administration as Statutory Heirs
    U.S. Department of Justice Civil Rights Division Office of Redress 
Administration

[[Page 312]]

    This declaration shall be executed by the identified parent of a 
deceased eligible individual as statutory heir in accordance with

  Section 105(a)(7) of the Civil Liberties Act of 1988, 50 U.S.C. app. 
                                 1989b.

Complete the following information:
(1) Current Legal Name:_________________________________________________
(2) Current Address:____________________________________________________
Street:_________________________________________________________________
City, State and Zip Code:_______________________________________________
(3) Telephone Number:___________________________________________________
(Home)__________________________________________________________________
(Business)______________________________________________________________
(4) Social Security Number:_____________________________________________
(5) Date of Birth:______________________________________________________
(6) Relationship to the Deceased:_______________________________________
(7) The name of the child's other parent and the address if known. This 
includes fathers and mothers through adoption. If the parent is deceased 
provide the date and place of death.____________________________________
________________________________________________________________________
    Read the following carefully before signing this document. A False 
Statement may be grounds for punishment by fine (U.S. Code, title 31, 
section 3729), and fine or imprisonment or both (U.S. Code, title 18, 
section 287 and section 1001).
I declare under penalty of perjury that the foregoing is true and 
correct.
Signature_______________________________________________________________
Date____________________________________________________________________
Privacy Act Statement: The authority for collecting this information is 
contained in 50 U.S.C. app. 1989b. The information that you provide will 
be used principally for verifying eligible persons for payment under the 
restitution provision of the Civil Liberties Act of 1988.

                         Required Documentation.

    The following documentation must be submitted with the above 
Declaration to complete your verification.

                             DOCUMENTATION:

            I. One Document as Evidence of Your Child's Death

    1. A certified copy or extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury.
    2. A certificate by the custodian of the public record of death.
    3. A statement of the funeral director or attending physician, or 
intern of the institution where death occurred.
    4. A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States.
    5. If death occurred outside the United States, an official report 
of death by a United States Consul or othe employee of the State 
Department, or a copy of public record of death in the foreign country.
    6. If you cannot obtain any of the above evidence, you must submit 
other convincing evidence to ORA such as the signed statements of two or 
more people with personal knowledge of the death, giving the place, 
date, and cause of death.

 II. One Document as Evidence of Your Parent-Child Relationship Natural 
                                 Parent

    1. A certified copy of a birth certificate that shows you to be the 
deceased eligible individual's parent.
    2. A certified acknowledgment in writing signed by you before the 
eligible individual's death.
    3. Any other evidence which reasonably supports a finding of such a 
parent-child relationship, such as a certified copy of the public record 
of birth or a religious record showing that you were the informant and 
were named as the parent of the deceased eligible individual.
    4. Affidavits or sworn statements of persons who know that you had 
accepted the deceased eligible individual as his or her child.
    5. Information obtained from a public agency or public records, such 
as school or welfare agencies, which shows that with the deceased 
eligible individual's knowledge, you were named as parent.

                             Adoptive Parent

    1. A certified copy of the decree of adoption and such other 
evidence as may be necessary.
    2. In jurisdictions where petition must be made to the court for 
release of such documents or information, or where release of such 
documents or information is prohibited, a revised birth certificate 
showing the person as the deceased eligible individual's parent will 
suffice.

                           III. Identification

    A document with your current legal name and address. For example, 
you might send a bank or financial statement, or a monthly utility bill. 
Submit either a notarized copy or an original that you do not need back.

                    IV. One Document of Date of Birth

    A certified copy of a birth certificate or a copy of another record 
of birth that has been certified by the custodian of the records. For 
example, you might send a copy of a religious record which shows your 
date of birth, or a hospital birth record. If you do not have any record 
of your birth, the Administrator will accept affidavits of two or more 
persons attesting to the date of your birth.
    If your notification letter says that the Social Security 
Administration has confirmed your date of birth, you do not have to send 
any further evidence of your birth date.

[[Page 313]]

                     V. One Document of Name Change

    If your current legal last name is the same as the last name of the 
deceased eligible individual this section does not apply.
    This section is only required for persons whose current legal last 
name is different from the last name of the deceased eligible.
    1. A certified copy of the public record of marriage.
    2. A certified copy of the divorce decree.
    3. A certified copy of the court order of a name change.
    4. Affidavits or sworn statements of two or more persons attesting 
to the name change.

              VI. One Document of Evidence of Guardianship

    If you are executing this document for the person identified as 
eligible, you must submit evidence of your authority.
    If you are the legally-appointed guardian, committee, or other 
legally-designated representative of such an individual, the evidence 
shall be a certificate executed by the proper official of the court 
appointment.
    If you are not such a legally-designated representative, the 
evidence shall be an affidavit describing your relationship to the 
recipient or the extent to which you have the care of the recipient or 
your position as an officer of the institution in which the recipient is 
institutionalized.



PART 75--CHILD PROTECTION RESTORATION AND PENALTIES ENHANCEMENT ACT OF 1990; RECORD-KEEPING PROVISIONS--Table of Contents




Sec.
75.1  Definitions.
75.2  Maintenance of records.
75.3  Categorization of records.
75.4  Location of records.
75.5  Inspection of records.
75.6  Statement describing location of books and records.
75.7  Exemption statement.
75.8  Location of the statement.

    Authority: 18 U.S.C. 2257.

    Source: Order No. 1586-92, 57 FR 15021, Apr. 24, 1992, unless 
otherwise noted.



Sec. 75.1  Definitions.

    (a) Terms used in this part shall have the meanings set forth in 18 
U.S.C. 2257.
    (b) Picture identification card shall mean a document issued by a 
government entity or by a private entity, such as a school or a private 
employer, that bears the photograph and the name of the individual 
identified. A picture identification card may be a passport, driver's 
license, work identification card, school identification card, selective 
service card, or identification card issued by a state.
    (c) Producer means any person, including any individual, 
corporation, or other organization, who is a primary producer or a 
secondary producer.
    (1) A primary producer is any person who actually films, videotapes, 
or photographs a visual depiction of actual sexually explicit conduct.
    (2) A secondary producer is any person who produces, assembles, 
manufactures, publishes, duplicates, reproduces, or reissues a book, 
magazine, periodical, film, videotape, or other matter intended for 
commercial distribution that contains a visual depiction of actual 
sexually explicit conduct.
    (3) The same person may be both a primary and a secondary producer.
    (4) Producer does not include persons whose activities relating to 
the visual depiction of actual sexually explicit conduct are limited to 
the following:
    (i) Photo processing;
    (ii) Distribution; or
    (iii) Any activity, other than those activities identified in 
paragraphs (c) (1) and (2) of this section, that does not involve the 
hiring, contracting for, managing, or otherwise arranging for the 
participation of the depicted performers.
    (d) Sell, distribute, redistribute, and rerelease refer to 
commercial distribution of a book, magazine, periodical, film, 
videotape, or other matter that contains a visual depiction of actual 
sexually explicit conduct, and does not refer to noncommercial 
distribution of the such matter, including transfers conducted by 
lending libraries.
    (e) Copy, when used in reference to an identification document or a 
picture identification card, means a photocopy or a photograph.



Sec. 75.2  Maintenance of records.

    (a) Any producer of any book, magazine, periodical, film, videotape, 
or other matter that contains one or more visual depictions of actual 
sexually explicit conduct made after November 1, 1990 shall, for each 
performer portrayed in such visual depiction, create and maintain 
records containing the following:

[[Page 314]]

    (1) The legal name and date of birth of each performer, obtained by 
the producer's examination of an identification document, as defined by 
18 U.S.C. 1028(d). For any performer portrayed in such a depiction made 
after May 26, 1992, the records shall also include a legible copy of the 
identification document examined and, if that document does not contain 
a recent and recognizable picture of the performer, a legible copy of a 
picture identification card.
    (2) Any name, other than each performer's legal name, ever used by 
the performer, including the performer's maiden name, alias, nickname, 
stage name, or professional name. For any performer portrayed in such a 
depiction made after May 26, 1992, such names shall be indexed by the 
title or identifying number of the book, magazine, film, videotape, or 
other matter.
    (b) A producer who is a secondary producer as defined in 
Sec. 75.1(c) may satisfy the requirements of this part to create and 
maintain records by accepting from the primary producer, as defined in 
Sec. 75.1(c), copies of the records described in paragraph (a) of this 
section. Such a secondary producer shall also keep records of the name 
and address of the primary producer from whom he received copies of the 
records.
    (c) The information contained in the records required to be created 
and maintained by this part need be current only as of the time the 
primary producer actually films, videotapes, or photographs the visual 
depiction of actual sexually explicit conduct. If the producer 
subsequently produces an additional book, magazine, film, videotape or 
other matter that contains one or more visual depictions of actual 
sexually explicit conduct made by a performer for whom he maintains 
records as required by this part, the producer may add the additional 
title and/or identifying number and the names of the performer to the 
existing records maintained pursuant to Sec. 75.2(a)(2).



Sec. 75.3  Categorization of records.

    Records required to be maintained under this part shall be 
categorized and retrievable to: All name(s) of each performer, including 
any alias, maiden name, nickname, stage name or professional name of the 
performer; and according to the title, number, or other similar 
identifier of each book, magazine, periodical, film, videotape, or other 
matter. Only one copy of each picture of a performer's picture 
identification card and identification document must be kept as long as 
each copy is categorized and retrievable according to any name, real or 
assumed, used by such performer, and according to any title or other 
identifier of the matter.



Sec. 75.4  Location of records.

    Any producer required by this part to maintain records shall make 
such records available at the producer's place of business. The business 
address shall refer to a street address and not to a post office box 
number. Such records shall be maintained as long as the producer remains 
in business. If the producer ceases to carry on the business, the 
records shall be maintained for five years thereafter. If the producer 
produces the book, magazine, periodical, film, videotape or other matter 
as part of his control of or through his employment with an 
organization, records shall be made available at the organization's 
place of business. If the organization is dissolved, the individual who 
was responsible for maintaining the records on behalf of the 
organization, as described in Sec. 75.6(b), shall continue to maintain 
the records for a period of five years after dissolution.



Sec. 75.5  Inspection of records.

    Any producer required by this part to maintain records shall make 
such records available to the Attorney General or his delegee for 
inspection at all reasonable times.



Sec. 75.6  Statement describing location of books and records.

    Any producer of any book, magazine, periodical, film, videotape, or 
other matter that contains one or more visual depictions of actual 
sexual explicit conduct made after November 1, 1990, and produced, 
manufactured, published, duplicated, reproduced, or reissued on or after 
May 26, 1992 shall cause to be affixed to every copy of the matter a 
statement describing the location of the records required by this

[[Page 315]]

part. A producer may cause such statement to be affixed, for example, by 
instructing the manufacturer of the book, magazine, periodical, film, 
videotape, or other matter to affix the statement.
    (a) Every statement shall contain:
    (1) The title of the book, magazine, periodical, film, or videotape, 
or other matter (unless the title is prominently set out elsewhere in 
the book, magazine, periodical, film, or videotape, or other matter) or, 
if there is no title, an identifying number or similar identifier which 
differentiates this matter from other matters which the producer has 
produced;
    (2) The date of production, manufacture, publication, duplication, 
reproduction, or reissuance of the matter; and,
    (3) A street address at which the records required by this part may 
be made available. The street address may be an address specified by the 
primary producer or, if the secondary producer satisfies the 
requirements of Sec. 75.2(b), the address of the secondary producer.
    (b) If the producer is an organization, the statement shall also 
contain the name, title, and business address of the individual employed 
by such organization who is responsible for maintaining the records 
required by this part.
    (c) The information contained in the statement must be accurate as 
of the date on which the book, magazine, periodical, film, videotape, or 
other matter is sold, distributed, redistributed, or rereleased.



Sec. 75.7  Exemption statement.

    (a) Any producer of any book, magazine, periodical, film, videotape, 
or other matter may cause to be affixed to every copy of the matter a 
statement attesting that the matter is not covered by the record-keeping 
requirements of 18 U.S.C. 2257(a)-(c) and of this part if:
    (1) The matter contains only visual depictions of actual sexually 
explicit conduct made before November 1, 1990, or is produced, 
manufactured, published, duplicated, reproduced, or reissued before May 
26, 1992;
    (2) The matter contains only visual depictions of simulated sexually 
explicit conduct; or,
    (3) The matter contains only some combination of the visual 
depictions described in paragraphs (a)(1) and (a)(2) of this section.
    (b) If the primary producer and the secondary producer are different 
entities, the primary producer may certify to the secondary producer 
that the visual depictions in the matter satisfy the standards under 
paragraphs (a)(1) through (a)(3) of this section. The secondary producer 
may then cause to be affixed to every copy of the matter a statement 
attesting that the matter is not covered by the record-keeping 
requirements of 18 U.S.C. 2257(a)-(c) and of this part.



Sec. 75.8  Location of the statement.

    All books, magazines, and periodicals shall contain the statement 
required in Sec. 75.6 or suggested in Sec. 75.7 either on the first page 
that appears after the front cover or on the page on which copyright 
information appears. In any film or videotape which contains end credits 
for the production, direction, distribution, or other activity in 
connection with the film or videotape, the statement referred to in 
Sec. 75.6 or Sec. 75.7 shall be presented at the end of the end titles 
or final credits and shall be displayed for a sufficient duration to be 
capable of being read by the average viewer. Any other film or videotape 
shall contain the required statement within one minute from the start of 
the film or videotape, and before the opening scene, and shall display 
the statement for a sufficient duration to be read by the average 
viewer. For all other categories not otherwise mentioned in this 
section, the statement is to be prominently displayed consistent with 
the manner of display required for the aforementioned categories.



PART 76--RULES OF PROCEDURE FOR ASSESSMENT OF CIVIL PENALTIES FOR POSSESSION OF CERTAIN CONTROLLED SUBSTANCES--Table of Contents




Sec.
76.1  Purpose.
76.2  Definitions.
76.3  Basis for civil penalty.
76.4  Enforcement procedures.
76.5  Complaint.
76.6  Service and filing of documents.

[[Page 316]]

76.7  Content of pleadings.
76.8  Time computations.
76.9  Responsive pleading--answer.
76.10  Motions and requests.
76.11  Notice of hearing.
76.12  Prehearing statements.
76.13  Parties to the hearing.
76.14  Separation of functions.
76.15  Ex parte communications.
76.16  Disqualification of a Judge.
76.17  Rights of parties.
76.18  Authority of the Judge.
76.19  Prehearing conferences.
76.20  Consent Order or settlement prior to hearing.
76.21  Discovery.
76.22  Exchange of witness lists, statements and exhibits.
76.23  Subpoenas.
76.24  Protective order.
76.25  Fees.
76.26  Sanctions.
76.27  The hearing and burden of proof.
76.28  Location of hearing.
76.29  Witnesses.
76.30  Evidence.
76.31  Standards of conduct.
76.32  Hearing room conduct.
76.33  Legal assistance.
76.34  Record of hearings.
76.35  Decision and Order of the Judge.
76.36  Administrative and judicial review.
76.37  Collection of civil penalties.
76.38  Deposit in the United States Treasury.
76.39  Compromise or settlement after Decision and Order of a Judge.
76.40  Records to be public.
76.41  Expungement of records.
76.42  Limitations.

    Authority: 5 U.S.C. 301; 21 U.S.C. 844a, 875, 876; 28 U.S.C. 509, 
510,; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 
Stat. 1321.

    Source: Order No. 1462-90, 56 FR 1089, Jan. 11, 1991, unless 
otherwise noted.



Sec. 76.1  Purpose.

    This part implements section 6486 of the Anti-Drug Abuse Act of 1988 
(the Act), 21 U.S.C. 844a. This part establishes procedures for imposing 
civil penalties against persons who knowingly possess a controlled 
substance for personal use that is listed in 21 CFR 1316.91(j)(2) in 
violation of 21 U.S.C. 844a and specifies the appeal rights of persons 
subject to a civil penalty pursuant to section 6486 of the Act.



Sec. 76.2  Definitions.

    (a) Act means the Anti-Drug Abuse Act of 1988, Public Law 100-690.
    (b) Adjudicatory proceeding means a judicial-type proceeding leading 
to the formulation of a final order.
    (c) Administrative Procedure Act means those provisions of the 
Administrative Procedure Act, as codified, which are contained in 5 
U.S.C. 551 through 559.
    (d) Attorney General means the Attorney General of the United States 
or his or her designee.
    (e) Department means the United States Department of Justice.
    (f) Judge means an Administrative Law Judge appointed pursuant to 
the provisions of 5 U.S.C. 3105.
    (g) Penalty means the amount described in 28 CFR 76.3 and includes 
the plural of that term.
    (h) The term Personal Use Amount means possession of controlled 
substances in circumstances where there is no other evidence of an 
intent to distribute, or to facilitate the manufacturing, compounding, 
processing, delivering, importing or exporting of any controlled 
substance. Evidence of personal use amounts shall not include sweepings 
or other evidence of possession of amounts of a controlled substance for 
other than personal use. The following criteria shall be used to 
determine whether an amount of controlled substance in a particular case 
is in fact a personal use amount. The absence of any of the factors 
listed in paragraphs (h)(1) through (h)(5) of this section and the 
existence of the factor in paragraph (h)(6) of this section shall be 
relevant, although not necessarily conclusive, to establish that the 
possession was for personal use, and amounts in excess of those listed 
in paragraph (h)(6) of this section may be determined to be personal use 
amounts where circumstances indicate possession of the substance without 
an intent to distribute or to facilitate the manufacturing, compounding, 
processing, delivering, importing or exporting of the controlled 
substance.
    (1) Evidence, such as drug scales, drug distribution paraphernalia, 
drug records, drug packaging material, method of drug packaging, drug 
``cutting'' agents and other equipment, that indicates an intent to 
process, package or distribute a controlled substance;

[[Page 317]]

    (2) Other information indicating possession of a controlled 
substance with intent to distribute;
    (3) The controlled substance is related to large amounts of cash or 
any amount of prerecorded government funds;
    (4) The controlled substance is possessed under circumstances that 
indicate such a controlled substance is a sample intended for 
distribution in anticipation of a transaction involving large amounts, 
or is part of a larger delivery; or
    (5) Statements by the possessor, or otherwise attributable to the 
possessor, including statements of co-conspirators, that indicate 
possession with intent to distribute.
    (6) The amounts do not exceed the following:
    (i) One gram of a mixture or substance containing a detectable 
amount of heroin;
    (ii) One gram of a mixture or substance containing a detectable 
amount of--
    (A) Coca leaves, except coca leaves and extracts of coca leaves from 
which cocaine, ecgonine, and derivations of ecgonine or their salts have 
been removed;
    (B) Cocaine, its salts, optical and geometric isomers, and salts of 
isomers;
    (C) Ecgonine, its derivatives, their salts, isomers, and salts of 
isomers; or
    (D) Any compound, mixture, or preparation which contains any 
quantity of any of the substances referred to in paragraphs (h)(6)(ii) 
(A) through (C) of this section;
    (iii) \1/10\ gram of a mixture or substance described in paragraph 
(h)(6)(ii) of this section which contains cocaine base;
    (iv) \1/10\ gram of a mixture or substance containing a detectable 
amount of phencyclidine (PCP);
    (v) 500 micrograms of a mixture or substance containing a detectable 
amount of lysergic acid diethylamide (LSD);
    (vi) One ounce of a mixture or substance containing a detectable 
among of marijuana;
    (vii) One gram of methamphetamine, its salts, isomers, and salts of 
its isomers, or one gram of a mixture or substance containing a 
detectable amount of methamphetamine, its salts, isomers, or salts of 
its isomers.
    (i) United States Attorney means the United States Attorney in the 
federal district in which the alleged violation occurred, or his or her 
designees, or an Assistant Attorney General.
    (j) Commencement of proceeding is the service upon a respondent of a 
Notice of Intent to Assess a Civil Penalty.
    (k) Complainant means the United States.
    (l) Complaint means the formal document initiating adjudicatory 
proceedings.
    (m) Consent Order means any written document containing a specified 
remedy or other relief agreed to by all parties and entered as an order 
by the Judge.
    (n) Hearing means that part of a proceeding which involves the 
submission of evidence, either by oral presentation or written 
submission.
    (o) Motion means an oral or written request, made by a person or 
party, for some action by a Judge.
    (p) Order means the whole or any part of a final procedural or 
substantive disposition of a matter by the Judge.
    (q) Party includes the United States of America and any person named 
as a respondent.
    (r) Respondent means any person alleged in a Notice of Intent to 
Assess a Civil Penalty or Complaint under 28 CFR 76.4 and 76.5 to be 
liable for a civil penalty under 28 CFR 76.3.



Sec. 76.3  Basis for civil penalty.

    (a) Any individual who knowingly possesses a controlled substance 
that is listed in Sec. 76.2(h) in violation of 21 U.S.C. 844a shall be 
liable to the United States for a civil penalty in an amount of not to 
exceed $10,000 for each such violation occurring before September 29, 
1999, and not to exceed $11,000 for each such violation occurring on or 
after September 29, 1999.
    (b) The income and net assets of an individual shall not be relevant 
to the determination whether to assess a civil penalty under this part 
or to prosecute the individual criminally. However, if a decision is 
made to assess a civil penalty, the income and net assets of an

[[Page 318]]

individual shall be considered in determining the amount of a penalty 
under this part.
    (c) A civil penalty may not be assessed under this part if the 
individual previously was convicted of a federal or state offense 
relating to a controlled substance as defined in section 102 of the 
Controlled Substances Act (21 U.S.C. 802).
    (d) A civil penalty may not be assessed on an individual under this 
part on more than two separate occasions.
    (e) A civil penalty under this part may be assessed by the Attorney 
General only after an order has been issued on the record and after an 
opportunity for a hearing has been given in accordance with 5 U.S.C. 
554. The Attorney General by and through the United States Attorney 
having jurisdiction over the matter shall provide written notice to the 
individual who is the subject of the proposed order informing the 
individual of the opportunity to receive such a hearing with respect to 
the proposed order. The hearing may be held only if the individual makes 
a request for the hearing before the expiration of the thirty (30) day 
period beginning on the date such notice is served.

[Order No. 1462-90, 56 FR 1089, Jan. 11, 1991, as amended by Order No. 
2249-99, 64 FR 47103, Aug. 30, 1999]



Sec. 76.4  Enforcement procedures.

    (a) Commencement of proceedings. If the United States Attorney's 
office having jurisdiction over the matter determines that a person has 
violated section 6486 of the Act, the proceeding to assess a civil 
penalty under section 6486 of the Act shall be commenced by the United 
States Attorney issuing a Notice of Intent to Assess Civil Penalty. 
Service of this Notice shall be accomplished pursuant to 28 CFR 76.6.
    (b) Notice of intent to assess a civil penalty. The Notice of Intent 
to Assess Civil Penalty (Notice) will contain a concise statement of 
factual allegations informing the respondent of the act or conduct 
alleged to be in violation of law, the statutory and regulatory 
provisions alleged to have been violated, and the amount of penalty for 
which the respondent could be liable. The Notice will advise the 
respondent of the following, in addition to any other specific 
information determined by the United States Attorney to be necessary:
    (1) That the respondent has the right to representation by counsel, 
but not at government expense;
    (2) That any statement given during the course of the proceeding may 
be used against the person in this or any other proceeding, including 
any criminal prosecution;
    (3) That a respondent may be able to assert a privilege, such as the 
privilege against self-incrimination;
    (4) That failure to file a response to the allegations listed in the 
Notice within thirty (30) days of the date of service may result in the 
entry of a non-appealable final order assessing a penalty in an amount 
to be determined by the Attorney General;
    (5) That the respondent has the right to request an adjudicatory 
proceeding, including a hearing, before a Judge pursuant to 5 U.S.C. 
554-557 and this part, and that such request, in accordance with 
paragraph (c) of this section, must be made within thirty (30) days from 
the date the notice is served;
    (6) That a respondent may waive an adjudicatory proceeding at any 
time and agree to pay a penalty in an amount to be determined by the 
Attorney General; and
    (7) That in determining the amount of the penalty the respondent's 
income and net assets must be considered.
    (c) Answer to notice. To timely request an adjudicatory proceeding 
in response to a Notice, a respondent must serve upon the United States 
Attorney designated in the Notice a written answer responding to each 
allegation listed in the Notice and request a hearing, in accordance 
with 28 CFR 76.4(b), within thirty (30) days from the date the Notice 
was served upon the respondent. If the respondent does not serve an 
answer within thirty (30) days, the Attorney General or his designee may 
enter a final order, from which there is no appeal, ordering a payment 
of a civil penalty.



Sec. 76.5  Complaint.

    (a) If the respondent requests an adjudicatory proceeding, the 
United States Attorney, within fifteen (15) days after receipt of the 
request, shall

[[Page 319]]

file a complaint against the respondent with a Judge who has been 
assigned to hear and decide the case and shall serve a copy of the 
complaint on the respondent as provided in 28 CFR 76.6(b).
    (b) The complaint shall contain a concise statement of factual 
allegations informing the respondent of the act or conduct alleged to be 
in violation of law, the approximate date, place and location of the 
alleged violation including the federal district, the statutory 
provisions alleged to have been violated, the amount of penalty for 
which the respondent could be held liable, and the amount of the 
proposed penalty. It shall also indicate the date upon which the Notice 
of Intent to Assess Civil Penalty was served and shall be accompanied by 
a copy of that notice.



Sec. 76.6  Service and filing of documents.

    (a) Generally. Unless ordered otherwise, an original and one copy of 
the complaint and all other pleadings shall be filed with the Judge who 
has been assigned to the case. Each party shall deliver or mail, in 
accordance with paragraph (b) of this section, a copy of all pleadings, 
including any attachments to the other party. Each pleading filed shall 
be clear and legible.
    (b) By and on parties. The Notice of Intent to Assess Civil Penalty 
and the Complaint shall be served by personal delivery or by certified 
or registered mail, return receipt requested, to the respondent. When it 
is known that a party is represented by an attorney, service of any 
other pleading, paper or document subsequent to the Notice and Complaint 
shall be made upon the party's attorney. Service of such other 
pleadings, papers, or documents may be made by personal delivery or by 
mailing, by first class mail, a copy to the party or attorney at the 
party's or attorney's last known address. The party serving the document 
shall certify the manner and date of service.
    (c) By the judge. Except as provided in paragraph (d) of this 
section, service of Notices, Orders and Decisions shall be made by first 
class mail to the last known address of a party or, if the party is 
known to be represented by an attorney, to the attorney.
    (d) Service of notice of hearing. Service of Notice of the Date Set 
for Hearing shall be made by the Judge with whom the complaint has been 
filed either by delivering a copy to the individual party or, if known, 
to the attorney of record of a party; or by mailing, by certified or 
registered mail, return receipt requested, a copy to the last known 
address of a party or a party's attorney.
    (e) Service is complete upon delivery to the addressee or, in the 
case of service by mail, upon mailing.
    (f) Filing of pleadings, papers or other documents shall be deemed 
completed upon delivery to the Judge assigned to the case or the Judge's 
designee.



Sec. 76.7  Content of pleadings.

    (a) Every pleading shall contain a caption setting forth the 
statutory provision under which the proceeding is instituted, the title 
of the proceeding, the docket number assigned by the Judge, the names of 
all parties, and a designation of the type of pleading or paper (e.g., 
complaint, motion to dismiss). The pleading shall be signed and shall 
contain the address and telephone number of the party or person 
representing the party. The pleadings should be typewritten when 
possible on standard-size (8\1/2\x11) paper. Legal size (8\1/2\x14) 
paper will not be accepted, except upon approval by the Judge.
    (b) Illegible documents, whether handwritten, typewritten, 
photocopied, or otherwise, will not be accepted. Papers may be 
reproduced by any duplicating process, provided all copies are clear and 
legible.
    (c) All documents presented by a party in a proceeding must be in 
English or, if in a foreign language, accompanied by a certified 
translation.



Sec. 76.8  Time computations.

    (a) Generally. In computing any period of time under this part or in 
an order issued hereunder, the time begins with the day following the 
act, event, or default requiring service, and includes the last day of 
the period unless it is a Saturday, Sunday, or legal holiday observed by 
the federal government, in which case the time period includes the next 
business day. When the period of time prescribed is eleven (11)

[[Page 320]]

days or less, intermediate Saturdays, Sundays, and holidays shall be 
excluded in the computation.
    (b) Date of entry of orders. In computing any period of time 
involving the date of the entry of an order, the date of entry shall be 
the date the order is signed by the Judge.
    (c) Computation of time for service by mail. Whenever a party has a 
right or is required to do some act or take some action within a 
prescribed period after service of a pleading, paper, or notice and the 
pleading, paper, or notice is served upon the party by mail, three (3) 
days shall be added to the prescribed period.



Sec. 76.9  Responsive pleading--answer.

    (a) Time for answer. A respondent shall file and serve on the United 
States Attorney having jurisdiction over the matter an answer within 
thirty (30) days after the service of a complaint.
    (b) Default. Failure of the respondent to file and serve an answer 
within the time provided shall be deemed to constitute a waiver of his 
or her right to appear and contest the allegations of the complaint. In 
such cases, the Judge may enter a judgment by default.
    (c) Answer. Any respondent contesting any material fact alleged in a 
complaint, or contending that he or she is entitled to judgment as a 
matter of law, shall file an answer in writing.
    (1) The answer shall include a statement of the facts supporting 
each affirmative defense.
    (2) The answer shall include a statement that the respondent admits, 
denies, does not have and is unable to obtain sufficient information to 
admit or deny each allegation, or that an answer to the allegation is 
protected by a privilege, including the privilege against self-
incrimination.
    (3) A statement of lack of information or a statement that the 
answer to the allegation is privileged shall have the effect of a 
denial.
    (4) Any allegation not denied shall be deemed to be admitted.
    (d) Reply. A complainant may file a reply responding to each 
affirmative defense arrested if the Judge, pursuant to 28 CFR 76.10, so 
provides.
    (e) Amendments and supplemental pleadings. If it will facilitate 
resolution of the controversy, the Judge may, upon such conditions as 
are necessary to avoid prejudicing the public interest and the rights of 
the parties, allow appropriate amendments to complaints and other 
pleadings at any time prior to the issuance of the Judge's order based 
on the complaint. When issues not raised by the pleadings are reasonably 
within the scope of the original complaint and are tried by express or 
implied consent of the parties, they shall be treated in all respects as 
if they had been raised in the pleadings, and such amendments may be 
made as necessary to make the pleadings conform to the evidence. The 
Judge may, upon reasonable notice and such terms as are just, permit 
supplemental pleadings setting forth transactions, occurrences, or 
events which have happened or new law promulgated since the date of the 
pleadings and which are relevant to any of the issues involved.



Sec. 76.10  Motions and requests.

    (a) Generally. Any application for an order or any other request 
shall: be made by motion which shall be in writing (unless the Judge in 
the course of an oral hearing or appearance consents to accept such 
motion orally), state with particularity the grounds therefor, and set 
forth the relief or order sought. Motions or requests made during the 
course of any oral hearing or appearance before a Judge may be stated 
orally or in writing and made part of the transcript. All parties shall 
be given reasonable opportunity to respond or object to the motion or 
request.
    (b) Responses to motions. Within ten (10) days after a written 
motion is served, or within such other period as the Judge may fix, the 
other party to the proceeding may file a response to the motion, 
accompanied by such affidavits or other evidence as the party desires to 
rely upon. Unless the Judge provides otherwise, no reply to a response 
shall be filed.
    (c) Oral arguments or briefs. No oral argument will be heard on 
motions unless the Judge otherwise directs. Written memoranda or briefs 
may be filed with motions or responses to motions,

[[Page 321]]

stating the points and authorities relied upon in support of the 
position taken.



Sec. 76.11  Notice of hearing.

    (a) When the Judge receives the complaint and answer, the Judge 
shall cause to be served a Notice of Hearing upon the parties in the 
manner prescribed by 28 CFR 76.6(d).
    (b) Such notice shall include:
    (1) The time and place and nature of the hearing. In fixing the time 
and place of the hearing, the Judge will attempt to minimize the costs 
to the parties;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The description of the procedures for the conduct of the 
hearing;
    (4) A notice that the respondent party may waive the right to an 
oral hearing and request that the matter be determined on written 
motions and written submission of the evidence; and
    (5) Such other matters as the Judge deems appropriate.



Sec. 76.12  Prehearing statements.

    (a) At any time prior to the commencement of the hearing, the Judge 
may order any party to file a prehearing statement of position.
    (b) A prehearing statement shall state the name of the party on 
whose behalf it is presented and shall briefly set forth the following 
matters, unless otherwise ordered by the Judge:
    (1) Issues involved in the proceedings and whether the respondent 
requests an oral hearing;
    (2) Facts stipulated;
    (3) Facts in dispute;
    (4) Witnesses, except to the extent that disclosure would be 
privileged, and exhibits by which disputed facts will be litigated;
    (5) A brief statement of applicable law;
    (6) The conclusions to be drawn;
    (7) The estimated time required for presentation of the party's 
case; and
    (8) Any appropriate comments, suggestions, or information which 
might assist the parties or the Judge in preparing for the hearing or 
otherwise aid in the disposition of the proceeding.



Sec. 76.13  Parties to the hearing.

    The parties to the hearing shall be the United States of America and 
the respondent.



Sec. 76.14  Separation of functions.

    An employee or an agent of the Department who is or was engaged in 
investigative or prosecutive functions for or on behalf of the United 
States in a case may not participate in the decision of that case.



Sec. 76.15  Ex parte communications.

    (a) Generally. The Judge shall not consult with any party, attorney 
or person (except persons in the office of the Judge) on any legal or 
factual issue unless upon notice and opportunity for all parties to 
participate. No party or attorney representing a party shall communicate 
in any instance with the Judge on any matter at issue in a case, unless 
notice and opportunity has been afforded for the other party to 
participate. This provision does not prohibit a party or attorney from 
inquiring about the status of a case or asking questions concerning 
administrative functions or procedures.
    (b) Sanctions. A party or participant who makes a prohibited ex 
parte communication, or who encourages or solicits another to make any 
such communication, may be subject to any appropriate sanctions. An 
attorney who makes a prohibited ex parte communication, or who 
encourages or solicits another to make any such communication, may be 
subject to sanctions, including, but not limited to, exclusion from the 
proceedings.



Sec. 76.16  Disqualification of a Judge.

    (a) When a Judge deems himself or herself disqualified to preside in 
a particular proceeding, such Judge shall withdraw therefrom by notice 
on the record directed to the Chief Administrative Hearing Officer for 
the district in which the case is brought or, if there is no Chief 
Administrative Hearing Officer, to the Attorney General.
    (b) Whenever any party shall deem the Judge for any reason to be 
disqualified to preside, or to continue to preside, in a particular 
proceeding, that

[[Page 322]]

party shall file with the Judge a motion to recuse. The motion shall be 
supported by an affidavit setting forth the alleged grounds for 
disqualification. The Judge shall rule upon the motion.
    (c) In the event of disqualification or recusal of a Judge as 
provided in paragraph (a) or (b) of this section, the Chief 
Administrative Hearing Officer or the Attorney General shall refer the 
matter to another Judge for further proceedings.
    (d) If the Judge denies a motion to disqualify, the Attorney General 
may determine the matter only as part of the Attorney General's review 
of the initial decision on appeal, if any.



Sec. 76.17  Rights of parties.

    Except as otherwise limited by this part, all parties may:
    (a) Be represented, advised and accompanied by an attorney at law 
who is a member in good standing of the bar of the District of Columbia 
or of any state, territory or commonwealth of the United States;
    (b) Participate in any conference held by the Judge;
    (c) Conduct discovery in accordance with 28 CFR 76.18 and 76.21;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral argument at the adjudicatory proceeding as 
permitted by the Judge; and
    (h) Submit a written brief and a proposed final order after the 
hearing.



Sec. 76.18  Authority of the Judge.

    (a) The Judge shall conduct a fair and impartial hearing, avoid 
delay, maintain order, and assure that a record of the proceeding is 
made.
    (b) The Judge has the authority to:
    (1) Set and change the date, time and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas in accordance with 21 U.S.C. 875 and 876 
requiring the attendance of witnesses and the production of documents at 
dispositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as necessary to carry out the 
responsibilities of the Judge under this part.
    (c) The Judge does not have the authority to rule upon the validity 
of federal statutes or regulations.



Sec. 76.19  Prehearing conferences.

    (a) Purpose and scope. Upon motion of a party or in the Judge's 
discretion, the Judge may direct the parties or their counsel to 
participate in a prehearing conference at any reasonable time prior to a 
hearing, or during the course of a hearing, when the Judge finds that 
the proceeding would be expedited by such a conference. Prehearing 
conferences normally shall be conducted by telephone unless, in the 
opinion of the Judge, such method would be impractical, or when such 
conferences can be conducted in a more expeditious or effective manner 
by correspondence or personal appearance. Reasonable notice of the time, 
place, and manner of the prehearing conference shall be given. At the 
conference, the following matters may be considered:
    (1) The simplification of issues;

[[Page 323]]

    (2) The necessity of amendments to pleadings;
    (3) The possibility of obtaining stipulations of facts and of the 
authenticity, accuracy, and admissibility of documents, which will avoid 
unnecessary proof;
    (4) The limitations on the number of expert or other witnesses;
    (5) Negotiation, compromise, or settlement of issues;
    (6) The exchange of copies of proposed exhibits;
    (7) The identification of documents or matters of which official 
notice may be required;
    (8) A schedule to be followed by the parties for completion of the 
actions decided at the conference; and
    (9) Such other matters, including the disposition of pending motions 
and resolution of issues regarding the admissibility of evidence, as may 
expedite and aid in the disposition of the proceeding.
    (b) Reporting. A verbatim record of the conference shall not be kept 
unless directed by the Judge.
    (c) Order. Actions taken as a result of a prehearing conference 
shall be reduced to a written order unless the Judge concludes that a 
stenographic report shall suffice or, if the conference takes place 
within seven (7) days of the beginning of a hearing, and the Judge 
elects to make a statement on the record at the hearing summarizing the 
actions taken.



Sec. 76.20  Consent Order or settlement prior to hearing.

    (a) Generally. At any time after the commencement of a proceeding, 
the parties jointly may move to defer the hearing for a reasonable time 
to permit negotiation of a settlement or an agreement containing 
findings and an order disposing of the whole or any part of the 
proceeding. The allowance of such deferment and the duration thereof 
shall be at the discretion of the Judge, after consideration of such 
factors as the nature of the proceeding, the requirements of the public 
interest, the representations of the parties, and the probability of 
reaching an agreement which will result in a just disposition of the 
issue involved. The Judge may require the parties to submit progress 
reports on a regular basis as to the status of negotiations.
    (b) Consent orders. Any agreement containing consent findings and an 
order disposing of a proceeding or any part thereof shall also provide:
    (1) That the order shall have the same force and effect as an order 
made after full hearing;
    (2) That the entire record on which any order may be based shall 
consist solely of the complaint or notice of administrative 
determination (or amended notice, if one is filed), as appropriate, and 
the agreement;
    (3) A waiver of any further procedural steps before the Judge; and
    (4) A waiver of any right to challenge or contest the validity of 
the order entered into in accordance with the agreement.
    (c) Submission. On or before the expiration of the time granted for 
negotiations, the parties or their counsel may:
    (1) Submit the proposed agreement containing consent findings and an 
order for consideration by the Judge; or
    (2) Notify the Judge that the parties have reached a full settlement 
and have agreed to dismissal of the action; or
    (3) Inform the Judge that agreement cannot be reached.
    (d) Disposition. In the event that an agreement containing consent 
findings and an order is submitted, the Judge, within thirty (30) days 
or as soon as practicable thereafter may, if satisfied with its 
timeliness, form, and substance, accept such agreement by issuing a 
decision based upon the agreed findings. The Judge has the discretionary 
authority to conduct a hearing to determine the fairness of the 
agreement, consent findings, and proposed order.



Sec. 76.21  Discovery.

    (a) Scope. Discovery under this part covers any matter not otherwise 
privileged or protected by law, which is directly relevant to the issues 
involved in the case, including the existence, description, nature, 
custody, condition, and location of documents or other tangible things, 
and the identity and location of persons having knowledge

[[Page 324]]

of relevant facts. To the extent not inconsistent with this part, the 
Federal Rules of Civil Procedure may be used as a general guide for 
discovery practices in proceedings before the Judge. However, unless 
otherwise stated in this part, the Federal Rules shall be deemed to be 
instructive rather than controlling.
    (b) Methods. Discovery may be obtained by one or more of the methods 
provided under the Federal Rules of Civil Procedure, including: written 
interrogatories, depositions, requests for production of documents or 
things for inspection or copying, and requests for admission addressed 
to parties.
    (c) Procedures governing discovery--(1) Discovery from a party. A 
party seeking discovery from another party shall initiate the process by 
serving a request for discovery on the other party. The request for 
discovery shall:
    (i) State the time limit for responding, as prescribed in 28 CFR 
76.21(c)(4);
    (ii) In the case of a request for a deposition of a party or an 
employee of a party shall
    (A) Specify the time and place of the taking of the deposition, and
    (B) Be served on the person to be deposed.
    (2) Discovery from a nonparty. Whenever possible, a party seeking a 
deposition and/or production of documents from a nonparty shall attempt 
to obtain the nonparty's voluntary cooperation. A party seeking such 
discovery from a nonparty may initiate such discovery by serving a 
request for discovery on the nonparty directly and by serving the other 
party. Upon failure to obtain voluntary cooperation, discovery from a 
nonparty may be sought by a written motion directed to the Judge in 
accordance with paragraph (c)(3) of this section.
    (3) Discovery motions. (i) A party shall answer a discovery request 
within the time provided by 28 CFR 76.21(c)(4), either by furnishing to 
the requesting party the information or testimony requested, agreeing to 
make deponents available to testify within a reasonable time, or by 
stating an objection to the particular request and the reasons for 
objection. Upon the failure of a party to respond in full to a discovery 
request, the requesting party may file with the Judge a motion to 
compel. A copy of the motion shall be served on the other party. The 
motion shall be accompanied by:
    (A) A copy of the original request and a statement showing the 
relevance and materiality of the information sought; and
    (B) A copy of the objections to discovery or, where appropriate, a 
statement with accompanying affidavit that no response has been 
received.
    (ii) If a nonparty will not voluntarily respond to a discovery 
request in full, the requesting party may file with the Judge a written 
motion seeking a subpoena. A copy of the motion shall be served on the 
other party in accordance with 28 CFR 76.23. The motion shall be 
accompanied by:
    (A) A copy of the original request and a statement showing the 
relevance, materiality and reasonable scope of the information sought;
    (B) A copy of the objections to discovery or, where appropriate, a 
statement with accompanying affidavit that no response has been 
received; and
    (C) In the case of a deposition, the date, time, and place of the 
proposed deposition.
    (iii) The other party may respond to a motion to compel discovery or 
for issuance of a subpoena requiring a deposition or production of 
documents under this section by filing an opposition and/or a motion for 
a protective order in accordance with 28 CFR 76.24 within the time 
limits set forth in paragraph (c)(4)(iv) of this section.
    (4) Time limits. (i) Discovery may be initiated after the filing of 
a complaint and shall be completed within the time designated by the 
Judge, but no later than seventy-five (75) days after the filing of the 
answer, unless a different time limit is set by the Judge after due 
consideration of the particular situation, including the dates set for 
hearing.
    (ii) A party or nonparty shall file and serve a response to a 
discovery request promptly, but not later than twenty (20) days after 
the date of service of the request or order of the Judge.
    (iii) A motion seeking a subpoena for the deposition testimony of a 
nonparty or for the production of documents by a nonparty, or a motion 
for an order

[[Page 325]]

compelling discovery from a party, shall be filed with the Judge and 
served upon the other party within ten (10) days of the date of service 
of objections, or within ten (10) days of the expiration of the time 
limit for response when no response is received, unless otherwise 
ordered by the Judge.
    (iv) An opposition to a motion to compel, an opposition to a motion 
for an order to depose a nonparty or for the production of documents by 
a nonparty, or a motion for a protective order must be filed with the 
Judge and served upon the other party within ten (10) days of the date 
of service of the motion to which such motion relates.
    (5) Orders for discovery. (i) Any order issued compelling discovery 
shall include, as appropriate:
    (A) Provision for notice to the person to be deposed as to the time 
and place of such deposition;
    (B) Such conditions or limitations concerning the conduct or scope 
of the discovery or the subject matter of the discovery as may be 
necessary to prevent undue delay or to protect a party or other 
individual or entity from undue expense, embarrassment or oppression;
    (C) Limitations upon the time for conducting depositions, answering 
written interrogatories, or producing documentary evidence; and
    (D) Other restrictions upon the discovery process as determined by 
the Judge.
    (ii) The order will be served on the parties by the Judge, together 
with a subpoena, if approved in the case of discovery sought from 
nonparties, directed to the individual or entity from which discovery is 
sought, specifying the manner and time limit for compliance. It shall be 
the responsibility of the party seeking discovery from a nonparty to 
serve or arrange for service of an approved discovery request and 
subpoena on the nonparty from whom discovery is sought and on the other 
party.
    (iii) Failure to comply with an order compelling discovery may 
subject the noncomplying party to sanctions under 28 CFR 76.26.
    (6) Costs. Each party shall bear its own costs of discovery unless 
otherwise agreed by the parties or ordered by the Judge. The party 
seeking the deposition shall provide for a verbatim transcript of the 
description, which shall be available to all parties for inspection and 
copying.



Sec. 76.22  Exchange of witness lists, statements and exhibits.

    (a) At least twenty-one (21) days before the hearing or at such 
other time as may be ordered by the Judge, the parties shall exchange 
witness lists, copies of prior statements of proposed witnesses, and 
copies of proposed hearing exhibits, including copies of any written 
statements that the respondent intends to offer in lieu of live 
testimony in accordance with 28 CFR 76.29. At the time these documents 
are exchanged, any party that intends to rely on the transcript of 
deposition testimony in lieu of live testimony at the hearing, if 
permitted by the Judge, shall provide each party with a copy of the 
specific pages of the transcript it intends to introduce into evidence.
    (b) If a party objects to admission, the Judge may not admit into 
evidence the testimony of any witness whose name does not appear on the 
witness list or any exhibit not provided to the opposing party as 
provided above unless the Judge finds good cause for the failure and 
that there is no prejudice to the objecting party.
    (c) Unless a party objects within the times set by the Judge, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 76.23  Subpoenas.

    (a) Requests for the issuance of subpoenas requiring the attendance 
and testimony of witnesses or the production of documents or other 
evidence under 21 U.S.C. 875 and 876 shall be filed with the Judge. 
Subpoenas are not ordinarily required to obtain the attendance of 
federal employees as witnesses, but such testimony shall be sought first 
by filing a request with the United States Attorney.
    (b) Requests for subpoenas shall be filed with the Judge in writing 
and shall specify with particularity the books, papers, or testimony 
desired,

[[Page 326]]

supported by a showing of general relevance and reasonable scope, and a 
statement of the facts expected to be proven thereby. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses or documents to be found.
    (c) A party seeking a subpoena for the attendance of a witness at a 
hearing shall file a written request therefor not less than fifteen (15) 
days before the date fixed for the hearing unless otherwise allowed by 
the Judge upon a showing of good cause.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) Unless otherwise ordered by the Judge, the party seeking the 
subpoena is responsible for service of the subpoena. A subpoena may be 
served by any person at least eighteen (18) years of age who is not a 
party, including a private process server or other person authorized to 
serve process in actions brought in state courts of general jurisdiction 
or in Federal courts. Service shall be by personal delivery. Proof of 
service shall be made by affidavit of the person serving a subpoena 
entered on a true copy of the subpoena.
    (f) A party or the individual to whom the subpoena is directed may 
file with the Judge a motion to quash the subpoena within ten (10) days 
after service of the subpoena, or on or before the time specified in the 
subpoena for compliance if it is less than ten (10) days after service.
    (g) Upon failure of any person to comply with a subpoena issued by 
the Judge, the Attorney General, in the name of the Judge, but on 
relation of the party, shall institute proceedings in the appropriate 
district court for the enforcement of the subpoena, unless the 
enforcement of the subpoena would be inconsistent with law. Neither the 
Attorney General nor the Judge shall be deemed thereby to have assumed 
responsibility for prosecution of the same before the court.



Sec. 76.24  Protective order.

    (a) A party or a prospective witness or deponent may seek to limit 
the availability or disclosure of evidence by filing a motion for a 
protective order with respect to discovery sought by an opposing party 
or with respect to the hearing.
    (b) In issuing a protective order, the Judge may make any order 
which justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, or to protect 
privileged information including one or more of the following orders:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be the subject of inquiry, or that the 
scope of discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the Judge;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a sealed deposition be opened only by order of the Judge;
    (8) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
Judge.



Sec. 76.25  Fees.

    Unless otherwise ordered by the Judge, the party requesting a 
subpoena shall pay the cost of the fees and mileage of any witness 
subpoenaed. Such costs shall be in the amounts that would be payable to 
a witness in a proceeding in United States district court. A check for 
witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the complainant, a 
check for witness fees and mileage need not accompany the subpoena.

[[Page 327]]



Sec. 76.26  Sanctions.

    (a) As necessary to meet the ends of justice, the Judge may impose 
sanctions upon any party or a party's counsel, including, but not 
limited to sanctions based upon the following reasons:
    (1) Failure to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failure to prosecute an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the proceeding.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission the Judge may, as appropriate under 
law:
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission as to unprivileged 
matters, deem admitted each matter of which an admission is requested;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought;
    (4) Strike any appropriate part of the pleadings or other 
submissions of the party failing to comply with such order; and
    (5) Permit the requesting party to introduce secondary evidence 
concerning the information sought.
    (d) If a party fails to prosecute an action under this part 
commenced by service of a notice of hearing, the Judge may dismiss the 
action.
    (e) If a respondent who has requested a hearing pursuant to 28 CFR 
76.4, and who has been served with a Notice of a Hearing under 28 CFR 
76.6, fails to appear at the hearing, absent good cause shown by the 
respondent, the Judge may issue an initial decision imposing a penalty.
    (f) The Judge may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 76.27  The hearing and burden of proof.

    (a) The Judge shall conduct a hearing on the record in order to 
determine whether the respondent is liable for a civil penalty under 28 
CFR 76.3 and, if so, the appropriate amount of any such civil penalty, 
considering the income and net assets of the respondent.
    (b) The United States Attorney shall prove respondent's liability 
and appropriateness of the amount of the penalty by a preponderance of 
the evidence.
    (c) The respondent shall prove any affirmative defenses by a 
preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise closed 
by the Judge for good cause shown.



Sec. 76.28  Location of hearing.

    The hearing shall be held in the judicial district of the United 
States Attorney's Office having jurisdiction over the matter.



Sec. 76.29  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the Judge and to the extent otherwise 
permitted by law, testimony may be admitted in the form of a written 
statement or deposition. Any such written statement must be provided to 
all other parties, along with the last known address of such witness, in 
a manner which allows sufficient time for other parties to subpoena, if 
necessary, such witness for cross-examination at the hearing. Prior 
written statements of witnesses proposed to testify at the hearing and 
deposition transcripts shall be exchanged as provided in 28 CFR 76.22.
    (c) The Judge shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to:
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth;
    (2) Avoid needless consumption of time; and

[[Page 328]]

    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The Judge shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the Judge, a witness may be cross-examined 
on matters relevant to the proceeding without regard to the scope of his 
or her direct examination.
    (f) Upon motion of any party, the Judge shall order witnesses 
excluded so that they cannot hear the testimony of other witnesses. This 
part does not authorize exclusion of the following:
    (1) The respondent;
    (2) An individual whose presence is shown by a party to be essential 
to the presentation of its case.



Sec. 76.30  Evidence.

    (a) The Judge shall determine the admissibility of evidence.
    (b) Except as provided in this part, the Judge shall not be bound by 
the Federal Rules of Evidence. However, the Judge may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The Judge shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Relevant evidence may be excluded if it is privileged under 
federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The Judge shall permit the parties to introduce rebuttal 
witnesses and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the Judge pursuant to 28 CFR 76.27.



Sec. 76.31  Standards of conduct.

    (a) All persons appearing in proceedings before a Judge are expected 
to act with integrity and in an ethical manner.
    (b) The Judge may exclude parties, witnesses, and their attorneys 
for refusal to comply with directions, continued use of dilatory 
tactics, refusal to adhere to reasonable standards of orderly and 
ethical conduct, failure to act in good faith, or violation of the 
prohibition against ex parte communications. The Judge shall state in 
the record the cause for suspending or barring an attorney from 
participation in a proceeding. Any attorney so suspended or barred may 
appeal to the Chief Administrative Hearing Officer for the District, or 
if there is no Chief Administrative Hearing Officer, to the Attorney 
General but no proceeding shall be delayed or suspended pending 
disposition of the appeal; provided, however, that the Judge shall 
suspend the proceeding for a reasonable time for the purpose of enabling 
the party to obtain another attorney.



Sec. 76.32  Hearing room conduct.

    Proceedings shall be conducted in an orderly manner. The consumption 
of food or beverage, smoking, or rearranging of courtroom furniture, 
unless specifically authorized by the Judge, is prohibited.



Sec. 76.33  Legal assistance.

    The Judge does not have authority to appoint counsel, nor can it 
refer a party to an attorney.



Sec. 76.34  Record of hearings.

    (a) General. Unless otherwise agreed by the parties, a verbatim 
written record of all hearings shall be kept. All evidence upon which 
the Judge relies for decision shall be contained in the transcript of 
testimony, either directly or by appropriate reference. All exhibits 
introduced as evidence shall be marked for identification and 
incorporated into the record. Upon completion of the transcript, the 
transcript shall be filed by the official court reporter with the Judge, 
who will notify the parties. Transcripts may be obtained by the parties 
and the public from the official court reporter of record. Unless 
otherwise ordered by the

[[Page 329]]

Judge, any fees in connection therewith shall be the responsibility of 
the parties.
    (b) Corrections. Corrections to the official transcript will be 
permitted upon motion. Motions for corrections must be submitted within 
ten (10) days of the service by the Judge of the notice of the filing of 
the transcript, or such other time as may be permitted by the Judge. 
Corrections of the official transcript will be permitted only when 
errors of substance are involved and only upon approval of the Judge.
    (c) The record of the proceedings shall consist of the notices, 
pleadings, motions, rulings, exhibits, orders, the findings, decisions 
or opinions of the Judge, the stipulations and briefs, and the 
transcript(s) of the hearing(s).



Sec. 76.35  Decision and Order of the Judge.

    (a) Proposed decision and order. Within twenty (20) days of the 
filing of the transcript of the testimony, or such additional time as 
the Judge may allow, a party, if authorized by the Judge, may file 
proposed Findings of Fact, Conclusions of Law, and Order together with a 
supporting brief expressing the reasons for such proposals. Such 
proposals and briefs shall be served on all parties, and shall refer to 
all portions of the record and to all authorities relied upon in support 
of each proposal.
    (b) Decision. Within a reasonable time, but not later than forty-
five (45) days after the filing of the hearing transcript, and the time 
allowed for the filing of the post-hearing briefs, proposed Findings of 
Fact, Conclusions of Law, and Order, if any, or within thirty (30) days 
after receipt of an agreement containing Consent Findings and Order 
disposing of the disputed matter in whole, the Judge shall make a 
decision. The decision of the Judge shall include Findings of Fact and 
Conclusions of Law upon each material issue of fact or law presented on 
the record. The decision of the Judge shall be based upon the whole 
record. It shall be supported by reliable and probative evidence. The 
standard of proof shall be a preponderance of the evidence. Such 
decision shall be in accordance with the regulations and the statutes 
conferring jurisdiction. If the Judge fails to meet the deadline 
contained in this paragraph, he or she shall notify the parties and the 
Attorney General of the reason for the delay and shall set a new 
deadline.
    (c) Order. If the Judge determines, by a preponderance of the 
evidence, that the respondent knowingly possessed a controlled substance 
that is listed in section 401(b)(1)(A) of the Controlled Substances Act 
(21 U.S.C. 841(b)) in violation of 21 U.S.C. 844, in an amount that, as 
specified by this part, is a personal use amount, the order shall 
require the respondent to pay a civil penalty of not more than $10,000 
for each violation. If the Judge determines that a preponderance of the 
evidence does not establish that the respondent knowingly possessed a 
controlled substance as described above, for his or her personal use, 
then the order shall dismiss the complaint. A copy of the decision and 
order together with a record of the proceedings will be forwarded to the 
Attorney General.



Sec. 76.36  Administrative and judicial review.

    (a) Upon entry of an order by a Judge, any party may file with the 
Attorney General, within ten (10) days of the date of the Judge's 
decision and order, a written request for review of the decision and 
order together with supporting arguments. Within thirty (30) days from 
the date of the filing of the request for review, the Attorney General 
may enter an order which adopts, affirms, modifies or vacates the 
Judge's order.
    (b) If a party does not seek review of the Judge's decision, or if 
the Attorney General enters no order within thirty (30) days from the 
date of the filing of the request for review, the order of the Judge 
becomes the final order of the Attorney General. If the Attorney General 
modifies or vacates the order, the order of the Attorney General becomes 
the final order.
    (c) An individual subject to an order assessing a penalty after a 
hearing may, before the expiration of the thirty (30) day period 
beginning on the date the final order is entered, either by the Judge or 
the Attorney General, whichever is applicable, bring a civil action in 
the appropriate District Court of the

[[Page 330]]

United States pursuant to the provisions of 21 U.S.C. 844a(g) and obtain 
de novo judicial review of the final order.



Sec. 76.37  Collection of civil penalties.

    (a) Collection of any penalty shall be the responsibility of the 
United States Attorney having jurisdiction over the matter.
    (b) The United States Attorney having jurisdiction over the matter 
may commence a civil action in any appropriate district court of the 
United States for the purpose of recovering the amount assessed and an 
amount representing interest at a rate computed in accordance with 28 
U.S.C. 1961.



Sec. 76.38  Deposit in the United States Treasury.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the United States Treasury.



Sec. 76.39  Compromise or settlement after Decision and Order of a Judge.

    (a) The United States Attorney having jurisdiction over the case 
may, at any time before the Attorney General issues an order, 
compromise, modify, or remit, with or without conditions, any civil 
penalty imposed under this section.
    (b) Any compromise or settlement must be in writing.



Sec. 76.40  Records to be public.

    All documents contained in the records of formal proceedings for 
imposing a penalty under this part may be inspected and copied, unless 
ordered sealed by the Judge.



Sec. 76.41  Expungement of records.

    (a) The Attorney General shall expunge all official Department 
records created pursuant to this part upon application of a respondent 
at any time after the expiration of three (3) years from the date of the 
final order of assessment if:
    (1) The respondent has not previously been assessed a civil penalty 
under this section;
    (2) The respondent has paid the penalty;
    (3) The respondent has complied with any conditions imposed by the 
Attorney General;
    (4) The respondent has not been convicted of a federal or state 
offense relating to a controlled substance as defined in section 102 of 
the Controlled Substances Act (21 U.S.C. 802); and
    (5) The respondent agrees to submit to a drug test, and such test 
shows the individual to be drug free.
    (b) A non-public record of a disposition under this part shall be 
retained by the Department solely for the purpose of determining in any 
subsequent proceeding whether the person qualifies for a civil penalty 
or expungement under this part.
    (c) If a record is expunged under this part, the individual for whom 
such an expungement was made shall not be held guilty of perjury, false 
swearing, or making a false statement by reason of his failure to recite 
or acknowledge a proceeding under this part or the results thereof in 
response to an inquiry made of him for any purpose.



Sec. 76.42  Limitations.

    No action under this part shall be entertained unless commenced 
within five (5) years from the date on which the violation occurred.



PART 77--ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT--Table of Contents




Sec.
77.1  Purpose and authority.
77.2  Definitions.
77.3  Application of 28 U.S.C. 530B.
77.4  Guidance.
77.5  No private remedies.

    Authority: 28 U.S.C. 530B.

    Source: Order No. 2216-99, 64 FR 19275, Apr. 20, 1999, unless 
otherwise noted.



Sec. 77.1  Purpose and authority.

    (a) The Department of Justice is committed to ensuring that its 
attorneys perform their duties in accordance with the highest ethical 
standards. The purpose of this part is to implement 28 U.S.C. 530B and 
to provide guidance to attorneys concerning the requirements imposed on 
Department attorneys by 28 U.S.C. 530B.

[[Page 331]]

    (b) Section 530B requires Department attorneys to comply with state 
and local federal court rules of professional responsibility, but should 
not be construed in any way to alter federal substantive, procedural, or 
evidentiary law or to interfere with the Attorney General's authority to 
send Department attorneys into any court in the United States.
    (c) Section 530B imposes on Department attorneys the same rules of 
professional responsibility that apply to non-Department attorneys, but 
should not be construed to impose greater burdens on Department 
attorneys than those on non-Department attorneys or to alter rules of 
professional responsibility that expressly exempt government attorneys 
from their application.
    (d) The regulations set forth in this part seek to provide guidance 
to Department attorneys in determining the rules with which such 
attorneys should comply.



Sec. 77.2  Definitions.

    As used in this part, the following terms shall have the following 
meanings, unless the context indicates otherwise:
    (a) The phrase attorney for the government means the Attorney 
General; the Deputy Attorney General; the Solicitor General; the 
Assistant Attorneys General for, and any attorney employed in, the 
Antitrust Division, Civil Division, Civil Rights Division, Criminal 
Division, Environment and Natural Resources Division, and Tax Division; 
the Chief Counsel for the DEA and any attorney employed in that office; 
the Chief Counsel for ATF and any attorney employed in that office; the 
General Counsel of the FBI and any attorney employed in that office or 
in the (Office of General Counsel) of the FBI; any attorney employed in, 
or head of, any other legal office in a Department of Justice agency; 
any United States Attorney; any Assistant United States Attorney; any 
Special Assistant to the Attorney General or Special Attorney duly 
appointed pursuant to 28 U.S.C. 515; any Special Assistant United States 
Attorney duly appointed pursuant to 28 U.S.C. 543 who is authorized to 
conduct criminal or civil law enforcement investigations or proceedings 
on behalf of the United States; and any other attorney employed by the 
Department of Justice who is authorized to conduct criminal or civil law 
enforcement proceedings on behalf of the United States. The phrase 
attorney for the government also includes any independent counsel, or 
employee of such counsel, appointed under chapter 40 of title 28, United 
States Code. The phrase attorney for the government does not include 
attorneys employed as investigators or other law enforcement agents by 
the Department of Justice who are not authorized to represent the United 
States in criminal or civil law enforcement litigation or to supervise 
such proceedings.
    (b) The term case means any proceeding over which a state or federal 
court has jurisdiction, including criminal prosecutions and civil 
actions. This term also includes grand jury investigations and related 
proceedings (such as motions to quash grand jury subpoenas and motions 
to compel testimony), applications for search warrants, and applications 
for electronic surveillance.
    (c) The phrase civil law enforcement investigation means an 
investigation of possible civil violations of, or claims under, federal 
law that may form the basis for a civil law enforcement proceeding.
    (d) The phrase civil law enforcement proceeding means a civil action 
or proceeding before any court or other tribunal brought by the 
Department of Justice under the authority of the United States to 
enforce federal laws or regulations, and includes proceedings related to 
the enforcement of an administrative subpoena or summons or civil 
investigative demand.
    (e) The terms conduct and activity means any act performed by a 
Department attorney that implicates a rule governing attorneys, as that 
term is defined in paragraph (h) of this section.
    (f) The phrase Department attorney[s] is synonymous with the phrase 
``attorney[s] for the government'' as defined in this section.
    (g) The term person means any individual or organization.
    (h) The phrase state laws and rules and local federal court rules 
governing attorneys means rules enacted or adopted

[[Page 332]]

by any State or Territory of the United States or the District of 
Columbia or by any federal court, that prescribe ethical conduct for 
attorneys and that would subject an attorney, whether or not a 
Department attorney, to professional discipline, such as a code of 
professional responsibility. The phrase does not include:
    (1) Any statute, rule, or regulation which does not govern ethical 
conduct, such as rules of procedure, evidence, or substantive law, 
whether or not such rule is included in a code of professional 
responsibility for attorneys;
    (2) Any statute, rule, or regulation that purports to govern the 
conduct of any class of persons other than attorneys, such as rules that 
govern the conduct of all litigants and judges, as well as attorneys; or
    (3) A statute, rule, or regulation requiring licensure or membership 
in a particular state bar.
    (i) The phrase state of licensure means the District of Columbia or 
any State or Territory where a Department attorney is duly licensed and 
authorized to practice as an attorney. This term shall be construed in 
the same manner as it has been construed pursuant to the provisions of 
Pub. L. 96-132, 93 Stat. 1040, 1044 (1979), and Sec. 102 of the 
Departments of Commerce, Justice and State, the Judiciary, and Related 
Agency Appropriations Act, 1999, Pub. L. 105-277.
    (j)(1) The phrase where such attorney engages in that attorney's 
duties identifies which rules of ethical conduct a Department attorney 
should comply with, and means, with respect to particular conduct:
    (i) If there is a case pending, the rules of ethical conduct adopted 
by the local federal court or state court before which the case is 
pending; or
    (ii) If there is no case pending, the rules of ethical conduct that 
would be applied by the attorney's state of licensure.
    (2) A Department attorney does not ``engage[] in that attorney's 
duties'' in any states in which the attorney's conduct is not 
substantial and continuous, such as a jurisdiction in which an attorney 
takes a deposition (related to a case pending in another court) or 
directs a contact to be made by an investigative agent, or responds to 
an inquiry by an investigative agent. Nor does the phrase include any 
jurisdiction that would not ordinarily apply its rules of ethical 
conduct to particular conduct or activity by the attorney.
    (k) The phrase to the same extent and in the same manner as other 
attorneys means that Department attorneys shall only be subject to laws 
and rules of ethical conduct governing attorneys in the same manner as 
such rules apply to non-Department attorneys. The phrase does not, 
however, purport to eliminate or otherwise alter state or federal laws 
and rules and federal court rules that expressly exclude some or all 
government attorneys from particular limitations or prohibitions.

[Order No. 2216-99, 64 FR 19275, Apr. 20, 1999, as amended by Order No. 
2650-2003, 68 FR 4929, Jan. 31, 2003



Sec. 77.3   Application of 28 U.S.C. 530B.

    In all criminal investigations and prosecutions, in all civil 
investigations and litigation (affirmative and defensive), and in all 
civil law enforcement investigations and proceedings, attorneys for the 
government shall conform their conduct and activities to the state rules 
and laws, and federal local court rules, governing attorneys in each 
State where such attorney engages in that attorney's duties, to the same 
extent and in the same manner as other attorneys in that State, as these 
terms are defined in Sec. 77.2 of this part.



Sec. 77.4   Guidance.

    (a) Rules of the court before which a case is pending. A government 
attorney shall, in all cases, comply with the rules of ethical conduct 
of the court before which a particular case is pending.
    (b) Inconsistent rules where there is a pending case. (1) If the 
rule of the attorney's state of licensure would prohibit an action that 
is permissible under the rules of the court before which a case is 
pending, the attorney should consider:
    (i) Whether the attorney's state of licensure would apply the rule 
of the court before which the case is pending, rather than the rule of 
the state of licensure;
    (ii) Whether the local federal court rule preempts contrary state 
rules; and

[[Page 333]]

    (iii) Whether application of traditional choice-of-law principles 
directs the attorney to comply with a particular rule.
    (2) In the process of considering the factors described in paragraph 
(b)(1) of this section, the attorney is encouraged to consult with a 
supervisor or Professional Responsibility Officer to determine the best 
course of conduct.
    (c) Choice of rules where there is no pending case. (1) Where no 
case is pending, the attorney should generally comply with the ethical 
rules of the attorney's state of licensure, unless application of 
traditional choice-of-law principles directs the attorney to comply with 
the ethical rule of another jurisdiction or court, such as the ethical 
rule adopted by the court in which the case is likely to be brought.
    (2) In the process of considering the factors described in paragraph 
(c)(1) of this section, the attorney is encouraged to consult with a 
supervisor or Professional Responsibility Officer to determine the best 
course of conduct.
    (d) Rules that impose an irreconcilable conflict. If, after 
consideration of traditional choice-of-law principles, the attorney 
concludes that multiple rules may apply to particular conduct and that 
such rules impose irreconcilable obligations on the attorney, the 
attorney should consult with a supervisor or Professional Responsibility 
Officer to determine the best course of conduct.
    (e) Supervisory attorneys. Each attorney, including supervisory 
attorneys, must assess his or her ethical obligations with respect to 
particular conduct. Department attorneys shall not direct any attorney 
to engage in conduct that violates section 530B. A supervisor or other 
Department attorney who, in good faith, gives advice or guidance to 
another Department attorney about the other attorney's ethical 
obligations should not be deemed to violate these rules.
    (f) Investigative Agents. A Department attorney shall not direct an 
investigative agent acting under the attorney's supervision to engage in 
conduct under circumstances that would violate the attorney's 
obligations under section 530B. A Department attorney who in good faith 
provides legal advice or guidance upon request to an investigative agent 
should not be deemed to violate these rules.



Sec. 77.5   No private remedies.

    The principles set forth herein, and internal office procedures 
adopted pursuant hereto, are intended solely for the guidance of 
attorneys for the government. They are not intended to, do not, and may 
not be relied upon to create a right or benefit, substantive or 
procedural, enforceable at law by a party to litigation with the United 
States, including criminal defendants, targets or subjects of criminal 
investigations, witnesses in criminal or civil cases (including civil 
law enforcement proceedings), or plaintiffs or defendants in civil 
investigations or litigation; or any other person, whether or not a 
party to litigation with the United States, or their counsel; and shall 
not be a basis for dismissing criminal or civil charges or proceedings 
or for excluding relevant evidence in any judicial or administrative 
proceeding. Nor are any limitations placed on otherwise lawful 
litigative prerogatives of the Department of Justice as a result of this 
part.



PART 79--CLAIMS UNDER THE RADIATION EXPOSURE COMPENSATION ACT--Table of Contents




                           Subpart A--General

Sec.
79.1  Purpose.
79.2  General definitions.
79.3  Compensable claim categories under the Act.
79.4  Determination of claims and affidavits.
79.5  Requirements for medical documentation, contemporaneous records, 
          and other records or documents.

     Subpart B--Eligibility Criteria for Claims Relating to Leukemia

79.10  Scope of subpart.
79.11  Definitions.
79.12  Criteria for eligibility.
79.13  Proof of physical presence for the requisite period and proof of 
          participation onsite during a period of atmospheric nuclear 
          testing.
79.14  Proof of initial exposure prior to age 21.
79.15  Proof of onset of leukemia more than two years after first 
          exposure.

[[Page 334]]

79.16  Proof of medical condition.

Subpart C--Eligibility Criteria for Claims Relating to Certain Specified 
                 Diseases Contracted in an Affected Area

79.20  Scope of subpart.
79.21  Definitions.
79.22  Criteria for eligibility.
79.23  Proof of physical presence for the requisite period.
79.24  Proof of initial or first exposure after age 20 for claims under 
          Sec. 79.22(b)(1).
79.25  Proof of onset of leukemia at least two years after first 
          exposure, and proof of onset of a specified compensable 
          disease more than five years after first exposure.
79.26  Proof of medical condition.
79.27  Indication of the presence of hepatitis B or cirrhosis.

    Subpart D--Eligibility Criteria for Claims by Onsite Participants

79.30  Scope of subpart.
79.31  Definitions.
79.32  Criteria for eligibility.
79.33  Proof of participation onsite during a period of atmospheric 
          nuclear testing.
79.34  Proof of medical condition.
79.35  Proof of onset of leukemia at least two years after first 
          exposure, and proof of onset of a specified compensable 
          disease more than five years after first exposure.
79.36  Indication of the presence of hepatitis B or cirrhosis.

Subparts E-G [Reserved]

                          Subpart H--Procedures

79.70  Attorney General's delegation of authority.
79.71  Filing of claims.
79.72  Review and resolution of claims.
79.73  Appeals procedures.
79.74  [Reserved]
79.75  Procedures for payment of claims.

Appendix A to Part 79--Pulmonary Function Tables
Appendix B to Part 79--Blood-Gas Tables
Appendix C to Part 79--Radiation Exposure Compensation Act Offset 
          Worksheet--Onsite Particpants

    Authority: Secs. 6(a), 6(i) and 6(j), Pub. L. 101-426, 104 Stat. 
920, as amended by secs. 3(c)-(h), Pub. L. 106-245, 114 Stat. 501 (42 
U.S.C. 2210 note).

    Source: Order No. 1580-92, 57 FR 12435, Apr. 10, 1992, unless 
otherwise noted.



                           Subpart A--General

    Source: Order No. 2604-2002, 67 FR 51423, Aug. 7, 2002, unless 
otherwise noted.



Sec. 79.1  Purpose.

    The purpose of these regulations is to implement the Radiation 
Exposure Compensation Act (``Act''), as amended by the Radiation 
Exposure Compensation Act Amendments of 2000, which authorizes the 
Attorney General of the United States to establish procedures for making 
certain payments to qualifying individuals who contracted one of the 
diseases listed in the Act. The amount of each payment and a general 
statement of the qualifications are indicated in Sec. 79.3(a). The 
procedures established in these regulations are designed to utilize 
existing records so that claims can be resolved in a reliable, 
objective, and non-adversarial manner, quickly and with little 
administrative cost to the United States or to the person filing the 
claim.



Sec. 79.2  General definitions.

    (a) Act means the Radiation Exposure Compensation Act of 1990, 
Public Law 101-426, as amended by section 3139 of Public Law 101-510 and 
by the Radiation Exposure Compensation Act Amendments of 2000, Public 
Law 106-245 (see 42 U.S.C. 2210 note).
    (b) Child means a recognized natural child of the claimant, a 
stepchild who lived with the claimant in a regular parent-child 
relationship, or an adopted child of the claimant.
    (c) Claim means a petition for compensation under the Act filed with 
the Radiation Exposure Compensation Program by a claimant or by his or 
her eligible surviving beneficiary or beneficiaries.
    (d) Claimant means the individual, living or deceased, who is 
alleged to satisfy the criteria for compensation set forth either in 
section 4 or in section 5 of the Act.
    (e) Contemporaneous Record means any document created at or around 
the time of the event that is recorded in the document.
    (f) Eligible surviving beneficiary means a spouse, child, parent, 
grandchild or grandparent who is entitled under section 6(c)(4) (A) or 
(B) of the Act to file a claim or receive a payment on behalf of a 
deceased claimant.
    (g) Grandchild means a child of a child of the claimant.

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    (h) Grandparent means a parent of a parent of the claimant.
    (i) Immediate family member of a person means a spouse or child if 
the person is an adult, but if the person is a minor, immediate family 
member means either parent.
    (j) Indian tribe means any Indian tribe, band, nation, pueblo, or 
other organized group or community that is recognized as eligible for 
special programs and services provided by the United States to Indian 
tribes.
    (k) Medical document, documentation, or record means any 
contemporaneous record of any physician, hospital, clinic, or other 
certified or licensed health care provider, or any other records 
routinely and reasonably relied on by physicians in making a diagnosis.
    (l) Onset or incidence of a specified compensable disease means the 
date a physician first diagnosed the disease.
    (m) Parent means the natural or adoptive father or mother of the 
claimant.
    (n) Program or Radiation Exposure Compensation Program means the 
component of the Constitutional and Specialized Tort Litigation Section 
of the Torts Branch of the Civil Division of the United States 
Department of Justice designated by the Attorney General to execute the 
powers, duties, and responsibilities assigned to the Attorney General 
pursuant to pertinent provisions of the Act.
    (o) Spouse means a wife or husband who was married to the claimant 
for a period of at least one (1) year immediately before the death of 
the claimant.
    (p) Trust Fund or Fund means the Radiation Exposure Compensation 
Trust Fund in the Department of the Treasury, administered by the 
Secretary of the Treasury pursuant to section 3 of the Act.



Sec. 79.3  Compensable claim categories under the Act.

    (a) In order to receive a compensation payment, each claimant or 
eligible surviving beneficiary must establish that the claimant meets 
each and every criterion of eligibility for at least one of the 
following compensable categories designated in the Act:
    (1) Claims of leukemia. (i) For persons exposed to fallout from the 
atmospheric detonation of nuclear devices at the Nevada Test Site due to 
their physical presence in an affected area during a designated time 
period, the amount of compensation is $50,000.
    (ii) For persons exposed to fallout from the atmospheric detonation 
of nuclear devices due to their participation onsite in a test involving 
the atmospheric detonation of a nuclear device, the amount of 
compensation is $75,000. The regulations governing these claims are set 
forth in subpart B of this part.
    (2) Claims Related to the Nevada Test Site Fallout. For persons 
exposed to fallout from the atmospheric detonation of nuclear devices at 
the Nevada Test Site due to their physical presence in an affected area 
during a designated time period, the amount of compensation is $50,000. 
The regulations governing these claims are set forth in subpart C of 
this part.
    (3) Claims of Onsite Participants. For persons who contracted 
certain specified diseases after onsite participation in the atmospheric 
detonation of a nuclear device, the amount of compensation is $75,000. 
The regulations governing these claims are set forth in subpart D of 
this part.
    (4) Miners' Claims. For persons who contracted lung cancer or 
certain nonmalignant respiratory diseases after being employed in 
uranium mines located in a specified state during the designated time 
period who were exposed to a specified minimum level of radiation during 
the course of their employment, the amount of compensation is $100,000. 
The regulations governing these claims are set forth in subpart E of 
this part.
    (5) Millers' Claims. For persons who contracted lung cancer, certain 
nonmalignant respiratory diseases, renal cancer, or chronic renal 
disease (including nephritis and kidney tubal tissue injury) following 
employment for at least one year (12 consecutive or cumulative months) 
in a uranium mill in a specified state during the designated time 
period, the amount of compensation is $100,000. The regulations 
governing these claims are set forth in subpart F of this part.

[[Page 336]]

    (6) Ore Transporters' Claims. For persons who contracted lung 
cancer, certain nonmalignant respiratory diseases, renal cancer, or 
chronic renal disease (including nephritis and kidney tubal tissue 
injury) following employment for at least one year (12 consecutive or 
cumulative months) as a transporter of uranium ore or vanadium-uranium 
ore from a uranium mine or uranium mill located in a specified state 
during the designated time period, the amount of compensation is 
$100,000. The regulations governing these claims are set forth in 
subpart G of this part.
    (b) Any claim that does not meet all the criteria for at least one 
of these categories, as set forth in these regulations, must be denied.
    (c) All claims for compensation under the Act must comply with the 
claims procedures and requirements set forth in subpart H of this part 
before any payment can be made from the Fund.



Sec. 79.4  Determination of claims and affidavits.

    (a) The claimant or eligible surviving beneficiary or beneficiaries 
bears the burden of providing evidence of the existence of each element 
necessary to establish eligibility under any compensable claim category 
set forth in Sec. 79.3(a).
    (b) In the event that reasonable doubt exists with regard to whether 
a claim meets the requirements of the Act, that doubt shall be resolved 
in favor of the claimant or eligible surviving beneficiary.
    (c) Written affidavits or declarations, subject to penalty for 
perjury, will be accepted only for the following purposes:
    (1) To establish eligibility of family members as set forth in 
Sec. 79.71(e), (f), (g), (h), or (i);
    (2) To establish other compensation received as set forth in 
Sec. 79.75(c) or (d);
    (3) To establish employment in a uranium mill or as an ore 
transporter in the manner set forth in Secs. 79.53(d) and 79.63(d), 
respectively; and
    (4) To substantiate the claimant's uranium mining employment history 
for purposes of determining working level months of radiation exposure, 
in the manner set forth in Sec. 79.43(d), provided the affidavit or 
declaration:
    (i) Is provided in addition to any other material that may be used 
to substantiate the claimant's employment history as set forth in 
Sec. 79.43;
    (ii) Is made subject to penalty for perjury;
    (iii) Attests to the employment history of the claimant; and
    (iv) As made by a person other than the individual filing the claim.



Sec. 79.5  Requirements for medical documentation, contemporaneous records, and other records or documents.

    (a) All medical documentation, contemporaneous records, and other 
records or documents submitted by a claimant or eligible surviving 
beneficiary to prove any criterion provided for in these regulations 
must be originals, or certified copies of the originals, unless it is 
impossible to obtain an original or certified copy of the original. If 
it is impossible for a claimant to provide an original or certified copy 
of an original, the claimant or eligible surviving beneficiary must 
provide a written statement with the uncertified copy setting forth the 
reason why it is impossible.
    (b) All documents submitted by a claimant or eligible surviving 
beneficiary must bear sufficient indicia of authenticity or a sufficient 
guarantee of trustworthiness. The Program shall not accept as proof of 
any criterion of eligibility any document that does not bear sufficient 
indicia of authenticity, or is in such a physical condition, or contains 
such information, that otherwise indicates the record or document is not 
reliable or trustworthy. When a record or document is not accepted by 
the Program under this section, the claimant or eligible surviving 
beneficiary shall be notified and afforded the opportunity to submit 
additional documentation in accordance with Sec. 79.72(b) or (c).
    (c) To establish eligibility the claimant or eligible surviving 
beneficiary may be required to provide additional records to the extent 
they exist. Nothing in the regulations in this section

[[Page 337]]

shall be construed to limit the Assistant Director's ability to require 
additional documentation.



     Subpart B--Eligibility Criteria for Claims Relating to Leukemia

    Source: Order No. 2604-2002, 67 FR 51423, Aug. 7, 2002, unless 
otherwise noted.



Sec. 79.10  Scope of subpart.

    The regulations in this subpart describe the criteria for 
eligibility for compensation under section 4(a)(1) of the Act and the 
evidence that will be accepted as proof of the various criteria. Section 
4(a)(1) of the Act provides for a payment of $50,000 to individuals 
exposed to fallout from the detonation of atmospheric nuclear devices at 
the Nevada Test Site due to their physical presence in an affected area 
during a designated time period, and $75,000 to individuals who 
participated onsite in a test involving the atmospheric detonation of a 
nuclear device and who later developed leukemia.



Sec. 79.11  Definitions.

    (a) Affected area means one of the following geographical areas, as 
they were recognized by the state in which they are located, as of July 
10, 2000:
    (1) In the State of Utah, the counties of Beaver, Garfield, Iron, 
Kane, Millard, Piute, San Juan, Sevier, Washington, and Wayne;
    (2) In the State of Nevada, the counties of Eureka, Lander, Lincoln, 
Nye, White Pine, and that portion of Clark County that consists of 
townships 13 through 16 at ranges 63 through 71;
    (3) In the State of Arizona, the counties of Coconino, Yavapai, 
Navajo, Apache, and Gila.
    (b) Atmospheric detonation of a nuclear device means only a test 
conducted by the United States prior to January 1, 1963, as listed in 
Sec. 79.31(f).
    (c) Designated time period means the period beginning on January 21, 
1951, and ending on October 31, 1958, or the period beginning on June 
30, 1962, and ending on July 31, 1962, whichever is applicable.
    (d) First exposure or initial exposure means the date on which the 
claimant was first physically present in the affected area during the 
designated time period, or the date on which the claimant first 
participated onsite in an atmospheric nuclear test, whichever is 
applicable.
    (e) Leukemia means any medically recognized form of acute or chronic 
leukemia other than chronic lymphocytic leukemia.
    (f) Onsite means physical presence above or within the official 
boundaries of any of the following locations:
    (1) The Nevada Test Site (NTS), Nevada;
    (2) The Pacific Test Sites (Bikini Atoll, Enewetak Atoll, Johnston 
Island, Christmas Island, the test site for the shot during Operation 
Wigwam, the test site for Shot Yucca during Operation Hardtack I, and 
the test sites for Shot Frigate Bird and Shot Swordfish during Operation 
Dominic I) and the official zone around each site from which non-test 
affiliated ships were excluded for security and safety purposes;
    (3) The Trinity Test Site (TTS), New Mexico;
    (4) The South Atlantic Test Site for Operation Argus and the 
official zone around the site from which non-test affiliated ships were 
excluded for security and safety purposes;
    (5) Any designated location within a Naval Shipyard, Air Force Base, 
or other official government installation where ships, aircraft, or 
other equipment used in an atmospheric nuclear detonation were 
decontaminated; or
    (6) Any designated location used for the purpose of monitoring 
fallout from an atmospheric nuclear test conducted at the Nevada Test 
Site.
    (g) Participant means an individual
    (1) Who was:
    (i) A member of the armed forces;
    (ii) A civilian employee or contract employee of the Manhattan 
Engineer District, the Armed Forces Special Weapons Project, the Defense 
Atomic Support Agency, the Defense Nuclear Agency, or the Department of 
Defense or its components or agencies or predecessor components or 
agencies;
    (iii) An employee or contract employee of the Atomic Energy 
Commission, the Energy Research and Development Administration, or the 
Department of Energy;

[[Page 338]]

    (iv) A member of the Federal Civil Defense Administration or the 
Office of Civil and Defense Mobilization; or
    (v) A member of the United States Public Health Service; and
    (2) Who:
    (i) Performed duties within the identified operational area around 
each atmospheric nuclear test;
    (ii) Participated in the decontamination of any ships, planes, or 
equipment used during the atmospheric nuclear test;
    (iii) Performed duties as a cloud tracker or cloud sampler;
    (iv) Served as a member of the garrison or maintenance forces on the 
atoll of Enewetak between June 21, 1951, and July 1, 1952; between 
August 7, 1956, and August 7, 1957; or between November 1, 1958, and 
April 30, 1959; or
    (v) Performed duties as a member of a mobile radiological safety 
team monitoring the pattern of fallout from an atmospheric nuclear test.
    (h) Period of atmospheric nuclear testing means any of the periods 
associated with each test operation specified in Sec. 79.31(f), plus an 
additional six-month period thereafter.
    (i) Physically present (or physical presence) means present (or 
presence) for a substantial period of each day.



Sec. 79.12  Criteria for eligibility.

    To establish eligibility for compensation under this subpart, a 
claimant or eligible surviving beneficiary must establish each of the 
following:
    (a)(1) That the claimant was physically present at any place within 
the affected area for a period of at least one year (12 consecutive or 
cumulative months) during the period beginning on January 21, 1951, and 
ending on October 31, 1958;
    (2) That the claimant was physically present at any place within the 
affected area for the entire, continuous period beginning on June 30, 
1962, and ending on July 31, 1962; or
    (3) That the claimant was present onsite at any time during a period 
of atmospheric nuclear testing and was a participant during that period 
in the atmospheric detonation of a nuclear device;
    (b) That after such period of physical presence or onsite 
participation the claimant contracted leukemia;
    (c) That the claimant's initial exposure occurred prior to age 21; 
and
    (d) The onset of the leukemia occurred more than two years after the 
date of the claimant's first exposure to fallout.



Sec. 79.13  Proof of physical presence for the requisite period and proof of participation onsite during a period of atmospheric nuclear testing.

    (a) Proof of physical presence may be made by the submission of any 
trustworthy contemporaneous records that, on their face or in 
conjunction with other such records, establish that the claimant was 
present in the affected area for the requisite period during the 
designated time period. Examples of such records include:
    (1) Records of the federal government (including verified 
information submitted for a security clearance), any tribal government, 
or any state, county, city or local governmental office, agency, 
department, board or other entity, or other public office or agency;
    (2) Records of any accredited public or private educational 
institution;
    (3) Records of any private utility licensed or otherwise approved by 
any governmental entity, including any such utility providing telephone 
services;
    (4) Records of any public or private library;
    (5) Records of any state or local historical society;
    (6) Records of any religious organization that has tax-exempt status 
under section 501(c)(3) of the United States Internal Revenue Code;
    (7) Records of any regularly conducted business activity or entity;
    (8) Records of any recognized civic or fraternal association or 
organization; and
    (9) Medical records created during the designated time period.
    (b) Proof of physical presence by contemporaneous records may also 
be made by submission of original postcards and envelopes from letters 
(not copies) addressed to the claimant or an immediate family member 
during the designated time period that bear a postmark and a cancelled 
stamp(s).

[[Page 339]]

    (c) The Program will presume that an individual who resided or was 
employed on a full-time basis within the affected area was physically 
present during the time period of residence or full-time employment.
    (d) For purposes of establishing eligibility under Sec. 79.12(a)(1), 
the Program will presume that proof of a claimant's residence at one or 
more addresses or proof of full-time employment at one location within 
the affected area on any two dates less than three years apart during 
the period beginning on January 21, 1951, and ending on October 31, 
1958, establishes the claimant's presence within the affected area for 
the period between the two dates reflected in the documentation 
submitted as proof of presence.
    (e) For purposes of establishing eligibility under Sec. 79.12(a)(1), 
the Program will presume that proof of residence at one or more 
addresses or proof of full-time employment at one location within the 
affected area on two dates, one of which is before January 21, 1951, and 
another of which is within the specified time period, establishes the 
claimant's presence in the affected area between January 21, 1951, and 
the date within the specified time period, provided the dates are not 
more than three years apart.
    (f) For purposes of establishing eligibility under Sec. 79.12(a)(1), 
the Program will presume that proof of residence at one or more 
addresses or proof of full-time employment at one location within the 
affected area on two dates, one of which is after October 31, 1958, and 
another which is within the specified time period, establishes the 
claimant's presence in the affected area between the date within the 
specified time period and October 31, 1958, provided the dates are not 
more than three years apart.
    (g) For purposes of establishing eligibility under Sec. 79.12(a)(2), 
the Program will presume that proof of residence or proof of full-time 
employment within the affected area at least one day during the period 
beginning June 30, 1962, and ending July 31, 1962, and proof of 
residence or proof of full-time employment at the same address within 
six months before June 30, 1962, and six months after July 31, 1962, 
establishes the claimant's physical presence for the necessary one-
month-and-one-day period.
    (h) For purposes of establishing eligibility under Sec. 79.12(a)(2), 
the Program will presume that proof of residence or full-time employment 
at the same address or location on two separate dates at least 14 days 
apart within the time period beginning June 30, 1962, and ending July 
31, 1962, establishes the claimant's physical presence for the necessary 
one-month-and-one-day period.
    (i) For purposes of establishing eligibility under Sec. 79.12(a)(3), 
the claimant must establish, in accordance with Sec. 79.33, that he or 
she participated onsite in the atmospheric detonation of a nuclear 
device.



Sec. 79.14  Proof of initial exposure prior to age 21.

    (a) Proof of the claimant's date of birth must be established by the 
submission of any of the following:
    (1) Birth certificate;
    (2) Baptismal certificate;
    (3) Tribal records; or
    (4) Hospital records of birth.
    (b) Absent any indication to the contrary, the Program will assume 
that the earliest date within the designated time period indicated on 
any records accepted by the Program as proof of the claimant's physical 
presence in the affected area or participation during a period of 
atmospheric nuclear testing was also the date of initial exposure.



Sec. 79.15  Proof of onset of leukemia more than two years after first exposure.

    The Program will presume that the date of onset was the date of 
diagnosis as indicated in the medical documentation accepted by the 
Program as proof of the claimant's leukemia. The date of onset must be 
more than two years after the date of first exposure as determined under 
Sec. 79.14(b).



Sec. 79.16  Proof of medical condition.

    (a) Medical documentation is required in all cases to prove that the 
claimant suffered from or suffers from leukemia. Proof that the claimant 
contracted leukemia must be made either by using the procedure outlined 
in

[[Page 340]]

paragraph (b) of this section or submitting the documentation required 
in paragraph (c) of this section.
    (b) If a claimant was diagnosed as having leukemia in one of the 
States of Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, the 
claimant or eligible surviving beneficiary need not submit any medical 
documentation of disease at the time the claim is filed (although 
medical documentation may subsequently be required). Instead, the 
claimant or eligible surviving beneficiary must submit with the claim an 
Authorization To Release Medical and Other Information, valid in the 
state of diagnosis, that authorizes the Program to contact the 
appropriate state cancer or tumor registry. The Program will accept as 
proof of medical condition verification from the state cancer or tumor 
registry that it possesses medical records or abstracts of medical 
records of the claimant that contain a verified diagnosis of one type of 
leukemia. If the designated state does not possess medical records or 
abstracts of medical records that contain a verified diagnosis of 
leukemia, the Radiation Exposure Compensation Program will notify the 
claimant or eligible surviving beneficiary and afford that individual 
the opportunity to submit the medical documentation required in 
paragraph (c) of this section, in accordance with the provisions of 
Sec. 79.72(b).
    (c)(1) Proof that the claimant contracted leukemia may be made by 
the submission of one or more of the following contemporaneous medical 
records provided that the specified document contains an explicit 
statement of diagnosis or such other information or data from which 
appropriate authorities at the National Cancer Institute can make a 
diagnosis of leukemia to a reasonable degree of medical certainty:
    (i) Bone marrow biopsy or aspirate report;
    (ii) Peripheral white blood cell differential count report;
    (iii) Autopsy report;
    (iv) Hospital discharge summary;
    (v) Physician summary;
    (vi) History and physical report; or
    (vii) Death certificate, provided that it is signed by a physician 
at the time of death.
    (2) If the medical record submitted does not contain sufficient 
information or data to make such a diagnosis, the Program will notify 
the claimant or eligible surviving beneficiary and afford that 
individual the opportunity to submit additional medical records 
identified in this paragraph, in accordance with the provisions of 
Sec. 79.72(b). Any such additional medical documentation submitted must 
also contain sufficient information from which appropriate authorities 
at the National Cancer Institute can determine the type of leukemia 
contracted by the claimant.



Subpart C--Eligibility Criteria for Claims Relating to Certain Specified 
                      Diseases in an Affected Area

    Source: Order No. 2604-2002, 67 FR 51423, Aug. 7, 2002, unless 
otherwise noted.



Sec. 79.20  Scope of subpart.

    The regulations in this subpart describe the criteria for 
eligibility for compensation under sections 4(a)(2) (A) and (B) of the 
Act and the evidence that will be accepted as proof of the various 
criteria. Sections 4(a)(2) (A) and (B) of the Act provide for a payment 
of $50,000 to individuals who were exposed to fallout from the 
atmospheric detonation of nuclear devices at the Nevada Test Site due to 
their physical presence in an affected area during a designated time 
period and who later developed one or more specified compensable 
diseases.



Sec. 79.21  Definitions.

    (a) The definitions listed in Sec. 79.11 (a) through (e) and (i) 
apply to this subpart.
    (b) Indication of disease means any medically significant 
information that suggests the presence of a disease, whether or not the 
presence of the disease is later confirmed.
    (c) Leukemia, lung cancer, in situ lung cancer, multiple myeloma, 
lymphomas, Hodgkin's disease, primary cancer of the thyroid, primary 
cancer of the male breast, primary cancer of the female breast, primary 
cancer of the esophagus, primary cancer of the stomach, primary cancer 
of the pharynx, primary cancer of

[[Page 341]]

the small intestine, primary cancer of the pancreas, primary cancer of 
the bile ducts, primary cancer of the gallbladder, primary cancer of the 
salivary gland, primary cancer of the urinary bladder, primary cancer of 
the brain, primary cancer of the colon, primary cancer of the ovary, and 
primary cancer of the liver mean the physiological conditions that are 
recognized by the National Cancer Institute under those names or 
nomenclature, or under any previously accepted or commonly used names or 
nomenclature.
    (d) Lung cancer means any physiological condition of the lung, 
trachea, or bronchus that is recognized under that name or nomenclature 
by the National Cancer Institute.
    (e) Specified compensable diseases means leukemia (other than 
chronic lymphocytic leukemia), provided that initial exposure occurred 
after the age of 20 and that the onset of the disease was at least two 
years after first exposure, lung cancer (other than in situ lung cancer 
that is discovered during or after a postmortem exam), and the following 
diseases, provided onset was at least five years after first exposure: 
multiple myeloma; lymphomas (other than Hodgkin's disease); and primary 
cancer of the thyroid, male or female breast, esophagus, stomach, 
pharynx, small intestine, pancreas, bile ducts, gallbladder, salivary 
gland, urinary bladder, brain, colon, ovary, or liver (except if 
cirrhosis or hepatitis B is indicated).



Sec. 79.22  Criteria for eligibility.

    To establish eligibility for compensation under this subpart, a 
claimant or eligible surviving beneficiary must establish each of the 
following:
    (a)(1) That the claimant was physically present at any place within 
the affected area for a period of at least two years (24 consecutive or 
cumulative months) during the period beginning on January 21, 1951, and 
ending on October 31, 1958; or
    (2) That the claimant was physically present at any place within the 
affected area for the entire, continuous period beginning on June 30, 
1962, and ending on July 31, 1962; and
    (b) That after such period of physical presence the claimant 
contracted one of the following specified compensable diseases:
    (1) Leukemia (other than chronic lymphocytic leukemia), provided 
that:
    (i) The claimant's initial exposure occurred after the age of 20; 
and
    (ii) The onset of the disease was at least two years after first 
exposure;
    (2) Lung cancer (other than in situ lung cancer that is discovered 
during or after a post-mortem exam);
    (3) Multiple myeloma, provided onset was at least five years after 
first exposure;
    (4) Lymphomas, other than Hodgkin's disease, provided onset was at 
least five years after first exposure;
    (5) Primary cancer of the thyroid, provided onset was at least five 
years after first exposure;
    (6) Primary cancer of the male or female breast, provided onset was 
at least five years after first exposure;
    (7) Primary cancer of the esophagus, provided onset was at least 
five years after first exposure;
    (8) Primary cancer of the stomach, provided onset was at least five 
years after first exposure;
    (9) Primary cancer of the pharynx, provided onset was at least five 
years after first exposure;
    (10) Primary cancer of the small intestine, provided onset was at 
least five years after first exposure;
    (11) Primary cancer of the pancreas, provided onset was at least 
five years after first exposure;
    (12) Primary cancer of the bile ducts, provided onset was at least 
five years after first exposure;
    (13) Primary cancer of the gallbladder, provided onset was at least 
five years after first exposure;
    (14) Primary cancer of the salivary gland, provided onset was at 
least five years after first exposure;
    (15) Primary cancer of the urinary bladder, provided onset was at 
least five years after first exposure;
    (16) Primary cancer of the brain, provided onset was at least five 
years after first exposure;
    (17) Primary cancer of the colon, provided onset was at least five 
years after first exposure;
    (18) Primary cancer of the ovary, provided onset was at least five 
years after first exposure; or

[[Page 342]]

    (19) Primary cancer of the liver, provided,
    (i) Onset was at least five years after first exposure;
    (ii) There is no indication of the presence of hepatitis B; and
    (iii) There is no indication of the presence of cirrhosis.



Sec. 79.23  Proof of physical presence for the requisite period.

    (a) Proof of physical presence for the requisite period may be made 
in accordance with the provisions of Sec. 79.13 (a) and (b). An 
individual who resided or was employed on a full-time basis within the 
affected area is presumed to have been physically present during the 
time period of residence or full-time employment.
    (b) For purposes of establishing eligibility under Sec. 79.22(a)(1), 
the Program will presume that proof of residence at one or more 
addresses or proof of full-time employment at one location within the 
affected area on any two dates less than three years apart, during the 
period beginning on January 21, 1951, and ending on October 31, 1958, 
establishes the claimant's presence within the affected area for the 
period between the two dates reflected in the documentation submitted as 
proof of presence.
    (c) For purposes of establishing eligibility under Sec. 79.22(a)(1), 
the Program will presume that proof of residence at one or more 
addresses or proof of full-time employment at one location within the 
affected area on two dates, one of which is before January 21, 1951, and 
another of which is within the specified time period, establishes the 
claimant's presence in the affected area between January 21, 1951, and 
the date within the specified time period, provided the dates are not 
more than three years apart.
    (d) For purposes of establishing eligibility under Sec. 79.22(a)(1), 
the Program will presume that proof of residence at one or more 
addresses or proof of full-time employment at one location within the 
affected area on two dates, one of which is after October 31, 1958, and 
another of which is within the specified time period, establishes the 
claimant's presence in the affected area between the date within the 
specified time period and October 31, 1958, provided the dates are not 
more than three years apart.
    (e) For purposes of establishing eligibility under Sec. 79.22(a)(2), 
the Program will apply the presumptions contained in Sec. 79.13(g) and 
(h).



Sec. 79.24  Proof of initial or first exposure after age 20 for claims under Sec. 79.22(b)(1).

    (a) Proof of the claimant's date of birth must be established in 
accordance with the provisions of Sec. 79.14(a).
    (b) Absent any indication to the contrary, the Program will presume 
that the earliest date within the designated time period indicated on 
any records accepted by the Program as proof of the claimant's physical 
presence in the affected area was the date of initial or first exposure.



Sec. 79.25  Proof of onset of leukemia at least two years after first exposure, and proof of onset of a specified compensable disease more than five years after 
          first exposure.

    The date of onset will be the date of diagnosis as indicated in the 
medical documentation accepted by the Radiation Exposure Compensation 
Program as proof of the claimant's specified compensable disease. The 
date of onset must be at least five years after the date of first 
exposure as determined under Sec. 79.24(b). In the case of leukemia, the 
date of onset must be at least two years after the date of first 
exposure.



Sec. 79.26  Proof of medical condition.

    (a) Medical documentation is required in all cases to prove that the 
claimant suffered from or suffers from any specified compensable 
disease. Proof that the claimant contracted a specified compensable 
disease must be made either by using the procedure outlined in paragraph 
(b) of this section or by submitting the documentation required in 
paragraph (c) of this section. (For claims relating to primary cancer of 
the liver, the claimant or eligible surviving beneficiary must also 
submit the additional medical documentation prescribed in Sec. 79.27.)
    (b) If a claimant was diagnosed as having one of the specified 
compensable diseases in any of the States of

[[Page 343]]

Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, the claimant or 
eligible surviving beneficiary need not submit any medical documentation 
of disease at the time the claim is filed (although medical 
documentation subsequently may be required). Instead, the claimant or 
eligible surviving beneficiary may submit with the claim an 
Authorization to Release Medical and Other Information, valid in the 
state of diagnosis, that authorizes the Program to contact the 
appropriate state cancer or tumor registry. The Program will accept as 
proof of medical condition verification from the state cancer or tumor 
registry that it possesses medical records or abstracts of medical 
records of the claimant that contain a verified diagnosis of one of the 
specified compensable diseases. If the designated state does not possess 
medical records or abstracts of medical records that contain a verified 
diagnosis of one of the specified compensable diseases, the Program will 
notify the claimant or eligible surviving beneficiary and afford that 
individual the opportunity to submit the written medical documentation 
required in paragraph (c) of this section, in accordance with the 
provisions of Sec. 79.72(b).
    (c) Proof that the claimant contracted a specified compensable 
disease may be made by the submission of one or more of the 
contemporaneous medical records listed in this paragraph, provided that 
the specified document contains an explicit statement of diagnosis and 
such other information or data from which the appropriate authorities 
with the National Cancer Institute can make a diagnosis to a reasonable 
degree of medical certainty. If the medical record submitted does not 
contain sufficient information or data to make such a diagnosis, the 
Program will notify the claimant or eligible surviving beneficiary and 
afford that individual the opportunity to submit additional medical 
records identified in this paragraph, in accordance with the provisions 
of Sec. 79.72(b). The medical documentation submitted under this section 
to establish that the claimant contracted leukemia or a lymphoma must 
also contain sufficient information from which the appropriate 
authorities with the National Cancer Institute can determine the type of 
leukemia or lymphoma contracted by the claimant. Proof of leukemia shall 
be made by submitting one or more of the documents listed in 
Sec. 79.16(c).
    (1) Multiple myeloma.
    (i) Pathology report of tissue biopsy;
    (ii) Autopsy report;
    (iii) Report of serum electrophoresis;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Hematology summary or consultation report;
    (D) Medical oncology summary or consultation report;
    (E) X-ray report; or
    (v) Death certificate, provided that it is signed by a physician at 
the time of death.
    (2) Lymphomas.
    (i) Pathology report of tissue biopsy;
    (ii) Autopsy report;
    (iii) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Hematology consultation or summary report;
    (D) Medical oncology consultation or summary report; or
    (iv) Death certificate, provided that it is signed by a physician at 
the time of death.
    (3) Primary cancer of the thyroid.
    (i) Pathology report of tissue biopsy or fine needle aspirate;
    (ii) Autopsy report;
    (iii) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary;
    (C) Operative summary report;
    (D) Medical oncology summary or consultation report; or
    (iv) Death certificate, provided that it is signed by a physician at 
the time of death.
    (4) Primary cancer of the male or female breast.
    (i) Pathology report of tissue biopsy or surgical resection;
    (ii) Autopsy report;
    (iii) One of the following summary medical reports:
    (A) Physician summary report;

[[Page 344]]

    (B) Hospital discharge summary;
    (C) Operative report;
    (D) Medical oncology summary or consultation report;
    (E) Radiotherapy summary or consultation report;
    (iv) Report of mammogram;
    (v) Report of bone scan; or
    (vi) Death certificate, provided that it is signed by a physician at 
the time of death.
    (5) Primary cancer of the esophagus.
    (i) Pathology report of tissue biopsy or surgical resection;
    (ii) Autopsy report;
    (iii) Endoscopy report;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Operative report;
    (D) Radiotherapy report;
    (E) Medical oncology consultation or summary report;
    (v) One of the following radiological studies:
    (A) Esophagram;
    (B) Barium swallow;
    (C) Upper gastrointestinal (GI) series;
    (D) Computerized tomography (CT) scan;
    (E) Magnetic resonance imaging (MRI); or
    (vi) Death certificate, provided that it is signed by a physician at 
the time of death.
    (6) Primary cancer of the stomach.
    (i) Pathology report of tissue biopsy or surgical resection;
    (ii) Autopsy report;
    (iii) Endoscopy or gastroscopy report;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Operative report;
    (D) Radiotherapy report;
    (E) Medical oncology summary report;
    (v) One of the following radiological studies:
    (A) Barium swallow;
    (B) Upper gastrointestinal (GI) series;
    (C) Computerized tomography (CT) series;
    (D) Magnetic resonance imaging (MRI); or
    (vi) Death certificate, provided that it is signed by a physician at 
the time of death.
    (7) Primary cancer of the pharynx.
    (i) Pathology report of tissue biopsy or surgical resection;
    (ii) Autopsy report;
    (iii) Endoscopy report;
    (iv) One of the following summary medical reports:
    (A) Physician summary;
    (B) Hospital discharge summary;
    (C) Report of otolaryngology examination;
    (D) Radiotherapy summary report;
    (E) Medical oncology summary report;
    (F) Operative report;
    (v) Report of one of the following radiological studies:
    (A) Laryngograms;
    (B) Tomograms of soft tissue and lateral radiographs;
    (C) Computerized tomography (CT) scan;
    (D) Magnetic resonance imaging (MRI); or
    (vi) Death certificate, provided that it is signed by a physician at 
the time of death.
    (8) Primary cancer of the small intestine.
    (i) Pathology report of tissue biopsy;
    (ii) Autopsy report;
    (iii) Endoscopy report, provided that the examination covered the 
duodenum and parts of the jejunum;
    (iv) Colonoscopy report, provided that the examination covered the 
distal ileum;
    (v) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary;
    (C) Report of gastroenterology examination;
    (D) Operative report;
    (E) Radiotherapy summary report;
    (F) Medical oncology summary or consultation report;
    (vi) Report of one of the following radiologic studies:
    (A) Upper gastrointestinal (GI) series with small bowel follow-
through;
    (B) Angiography;
    (C) Computerized tomography (CT) scan;
    (D) Magnetic resonance imaging (MRI); or

[[Page 345]]

    (vii) Death certificate, provided that it is signed by a physician 
at the time of death.
    (9) Primary cancer of the pancreas.
    (i) Pathology report of tissue biopsy or fine needle aspirate;
    (ii) Autopsy report;
    (iii) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Radiotherapy summary report;
    (D) Medical oncology summary report;
    (iv) Report of one of the following radiographic studies:
    (A) Endoscopic retrograde cholangiopancreatography (ERCP);
    (B) Upper gastrointestinal (GI) series;
    (C) Arteriography of the pancreas;
    (D) Ultrasonography;
    (E) Computerized tomography (CT) scan;
    (F) Magnetic resonance imaging (MRI); or
    (v) Death certificate, provided that it is signed by a physician at 
the time of death.
    (10) Primary cancer of the bile ducts.
    (i) Pathology of tissue biopsy or surgical resection;
    (ii) Autopsy report;
    (iii) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Operative report;
    (D) Gastroenterology consultation report;
    (E) Medical oncology summary or consultation report;
    (iv) Report of one of the following radiographic studies:
    (A) Ultrasonography;
    (B) Endoscopic retrograde cholangiography;
    (C) Percutaneous cholangiography;
    (D) Computerized tomography (CT) scan;
    (v) Death certificate, provided that it is signed by a physician at 
the time of death.
    (11) Primary cancer of the gallbladder.
    (i) Pathology report of tissue from surgical resection;
    (ii) Autopsy report;
    (iii) Report of one of the following radiological studies:
    (A) Computerized tomography (CT) scan;
    (B) Magnetic resonance imaging (MRI);
    (C) Ultrasonography (ultrasound);
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Operative report;
    (D) Radiotherapy report;
    (E) Medical oncology summary or report; or
    (v) Death certificate, provided that it is signed by a physician at 
the time of death.
    (12) Primary cancer of the liver.
    (i) Pathology report of tissue biopsy or surgical resection;
    (ii) Autopsy report;
    (iii) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Medical oncology summary report;
    (D) Operative report;
    (E) Gastroenterology report;
    (iv) Report of one of the following radiological studies:
    (A) Computerized tomography (CT) scan;
    (B) Magnetic resonance imaging (MRI); or
    (v) Death certificate, provided that it is signed by a physician at 
the time of death.
    (13) Cancer of the lung.
    (i) Pathology report of tissue biopsy or resection, including, but 
not limited to specimens obtained by any of the following methods:
    (A) Surgical resection;
    (B) Endoscopic endobronchial or transbronchial biopsy;
    (C) Bronchial brushings and washings;
    (D) Pleural fluid cytology;
    (E) Fine needle aspirate;
    (F) Pleural biopsy;
    (G) Sputum cytology;
    (ii) Autopsy report;
    (iii) Report of bronchoscopy, with or without biopsy;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;

[[Page 346]]

    (B) Hospital discharge summary report;
    (C) Radiotherapy summary report;
    (D) Medical oncology summary report;
    (E) Operative report;
    (v) Report of one of the following radiology examinations:
    (A) Computerized tomography (CT) scan;
    (B) Magnetic resonance imaging (MRI);
    (C) X-rays of the chest;
    (D) Chest tomograms; or
    (vi) Death certificate, provided that it is signed by a physician at 
the time of death.
    (14) Primary cancer of the salivary gland.
    (i) Pathology report of tissue biopsy or resection;
    (ii) Autopsy report;
    (iii) Report of otolaryngology or oral maxillofacial examination;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Radiotherapy summary report;
    (D) Medical oncology summary report;
    (E) Operative report;
    (v) Report of one of the following radiology examinations:
    (A) Computerized tomography (CT) scan;
    (B) Magnetic resonance imaging (MRI); or
    (vi) Death certificate, provided that it is signed by a physician at 
the time of death.
    (15) Primary cancer of the urinary bladder.
    (i) Pathology report of tissue biopsy or resection;
    (ii) Autopsy report;
    (iii) Report of cytoscopy, with or without biopsy;
    (iv) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Radiotherapy summary report;
    (D) Medical oncology summary report;
    (E) Operative report;
    (v) Report of one of the following radiology examinations:
    (A) Computerized tomography (CT) scan;
    (B) Magnetic resonance imaging (MRI); or
    (vi) Death certificate, provided that it is signed by a physician at 
the time of death.
    (16) Primary cancer of the brain.
    (i) Pathology report of tissue biopsy or resection;
    (ii) Autopsy report;
    (iii) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Radiotherapy summary report;
    (D) Medical oncology summary report;
    (E) Operative report;
    (iv) Report of one of the following radiology examinations:
    (A) Computerized tomography (CT) scan;
    (B) Magnetic resonance imaging (MRI);
    (C) CT or MRI with enhancement; or
    (v) Death certificate, provided that it is signed by a physician at 
the time of death.
    (17) Primary cancer of the colon.
    (i) Pathology report of tissue biopsy;
    (ii) Autopsy report;
    (iii) Endoscopy report, provided the examination covered the 
duodenum and parts of the jejunum;
    (iv) Colonoscopy report, provided that the examination covered the 
distal ileum;
    (v) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary;
    (C) Report of gastroenterology examination;
    (D) Operative report;
    (E) Radiotherapy summary report;
    (F) Medical oncology summary or consultation report;
    (vi) Report of one of the following radiologic studies:
    (A) Upper gastrointestinal (GI) series with small bowel follow-
through;
    (B) Angiography;
    (C) Computerized tomography (CT) scan;
    (D) Magnetic resonance imaging (MRI); or

[[Page 347]]

    (vii) Death certificate, provided that it is signed by a physician 
at the time of death.
    (18) Primary cancer of the ovary.
    (i) Pathology report of tissue biopsy or resection;
    (ii) Autopsy report;
    (iii) One of the following summary medical reports:
    (A) Physician summary report;
    (B) Hospital discharge summary report;
    (C) Radiotherapy summary report;
    (D) Medical oncology summary report;
    (E) Operative report; or
    (iv) Death certificate, provided that it is signed by a physician at 
the time of death.



Sec. 79.27  Indication of the presence of hepatitis B or cirrhosis.

    (a)(1) If the claimant or eligible surviving beneficiary is claiming 
eligibility under this subpart for primary cancer of the liver, the 
claimant or eligible surviving beneficiary must submit, in addition to 
proof of the disease, all medical records listed below from any 
hospital, medical facility, or health care provider that were created 
within the period six months before and six months after the date of 
diagnosis of primary cancer of the liver:
    (i) All history and physical examination reports;
    (ii) All operative and consultation reports;
    (iii) All pathology reports; and
    (iv) All physician, hospital, and health care facility admission and 
discharge summaries.
    (2) In the event that any of the records in paragraph (a)(1) of this 
section no longer exists, the claimant or eligible surviving beneficiary 
must submit a certified statement by the custodian(s) of those records 
to that effect.
    (b) If the medical records listed in paragraph (a) of this section, 
or information possessed by the state cancer or tumor registries, 
indicates the presence of hepatitis B or cirrhosis, the Radiation 
Exposure Compensation Program will notify the claimant or eligible 
surviving beneficiary and afford that individual the opportunity to 
submit other written medical documentation or contemporaneous records in 
accordance with Sec. 79.72(b) to establish that in fact there was no 
hepatitis B or cirrhosis.
    (c) The Program may also require that the claimant or eligible 
surviving beneficiary provide additional medical records or other 
contemporaneous records, or an authorization to release such additional 
medical and contemporaneous records, as may be needed to make a 
determination regarding the indication of the presence of hepatitis B or 
cirrhosis.



    Subpart D--Eligibility Criteria for Claims by Onsite Participants

    Source: Order No. 2604-2002, 67 FR 51423, Aug. 7, 2002, unless 
otherwise noted.



Sec. 79.30  Scope of subpart.

    The regulations in this subpart describe the criteria for 
eligibility for compensation under section 4(a)(2)(C) of the Act, and 
the evidence that will be accepted as proof of the various criteria. 
Section 4(a)(2)(C) of the Act provides for a payment of $75,000 to 
individuals who participated onsite in the atmospheric detonation of a 
nuclear device and later developed a specified compensable disease.



Sec. 79.31  Definitions.

    (a) The definitions listed in Sec. 79.11(b), (e), (f), (g), and (h), 
and in Sec. 79.21, apply to this subpart.
    (b) Atmospheric detonation of a nuclear device means only a test 
conducted by the United States prior to January 1, 1963, as listed in 
paragraph (d) of this section.
    (c) First exposure or initial exposure means the date on which the 
claimant first participated onsite in an atmospheric nuclear test.
    (d) Period of atmospheric nuclear testing means one of the periods 
listed in this paragraph that are associated with each test operation, 
plus an additional six-month period thereafter:
    (1) For Operation Trinity, the period July 16, 1945, through August 
6, 1945:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Trinity..........................   07/16/45  Trinity Test Site.
------------------------------------------------------------------------


[[Page 348]]

    (2) For Operation Crossroads, the period June 28, 1946, through 
August 31, 1946, for all activities other than the decontamination of 
ships involved in Operation Crossroads; the period of atmospheric 
nuclear testing for the decontamination of ships involved in Operation 
Crossroads shall run from June 28, 1946, through November 30, 1946:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Able.............................   07/01/46  Bikini.
Baker............................   07/25/46  Bikini.
------------------------------------------------------------------------

    (3) For Operation Sandstone, the period April 13, 1948, through May 
20, 1948:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
X-ray............................   04/15/48  Enewetak.
Yoke.............................   05/01/48  Enewetak.
Zebra............................   05/15/48  Enewetak.
------------------------------------------------------------------------

    (4) For Operation Ranger, the period January 27, 1951, through 
February 7, 1951:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Able.............................   01/27/51  Nevada Test Site
                                               (``NTS'').
Baker............................   01/28/51  NTS.
Easy.............................   02/01/51  NTS.
Baker-2..........................   02/02/51  NTS.
Fox..............................   02/06/51  NTS.
------------------------------------------------------------------------

    (5) For Operation Greenhouse, the period April 5, 1951, through June 
20, 1951, for all activities other than service as a member of the 
garrison or maintenance forces on the atoll of Enewetak between June 21, 
1951, and July 1, 1952; the period of atmospheric nuclear testing for 
service as a member of the garrison or maintenance forces on the atoll 
of Enewetak shall run from April 5, 1951, through July 1, 1952:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Dog..............................   04/08/51  Enewetak.
Easy.............................   04/21/51  Enewetak.
George...........................   05/09/51  Enewetak.
Item.............................   05/25/51  Enewetak.
------------------------------------------------------------------------

    (6) For Operation Buster-Jangle, the period October 22, 1951, 
through December 20, 1951:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Able.............................   10/22/51  NTS.
Baker............................   10/28/51  NTS.
Charlie..........................   10/30/51  NTS.
Dog..............................   11/01/51  NTS.
Sugar............................   11/19/51  NTS.
Uncle............................   11/29/51  NTS.
------------------------------------------------------------------------

    (7) For Operation Tumbler-Snapper, the period April 1, 1952, through 
June 20, 1952:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Able.............................   04/01/52  NTS.
Baker............................   04/15/52  NTS.
Charlie..........................   04/22/52  NTS.
Dog..............................   05/01/52  NTS.
Easy.............................   05/07/52  NTS.
Fox..............................   05/25/52  NTS.
George...........................   06/01/52  NTS.
------------------------------------------------------------------------

    (8) For Operation Ivy, the period October 29, 1952, through December 
31, 1952:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Mike.............................   11/01/52  Enewetak.
King.............................   11/16/52  Enewetak.
------------------------------------------------------------------------

    (9) For Operation Upshot-Knothole, the period March 17, 1953, 
through June 20, 1953:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Annie............................   03/17/53  NTS.
Nancy............................   03/24/53  NTS.
Ruth.............................   03/31/53  NTS.
Dixie............................   04/06/53  NTS.
Ray..............................   04/11/53  NTS.
Badger...........................   04/18/53  NTS.
Simon............................   04/25/53  NTS.
Encore...........................   05/08/53  NTS.
Harry............................   05/19/53  NTS.
Grable...........................   05/25/53  NTS.
Climax...........................   06/04/53  NTS.
------------------------------------------------------------------------

    (10) For Operation Castle, the period February 27, 1954, through May 
31, 1954:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Bravo............................   03/01/54  Bikini.
Romeo............................   03/27/54  Bikini.
Koon.............................   04/07/54  Bikini.
Union............................   04/26/54  Bikini.
Yankee...........................   05/05/54  Bikini.
Nectar...........................   05/14/54  Enewetak.
------------------------------------------------------------------------

    (11) For Operation Teapot, the period February 18, 1955, through 
June 10, 1955:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Wasp.............................   02/18/55  NTS.
Moth.............................   02/22/55  NTS.
Tesla............................   03/01/55  NTS.
Turk.............................   03/07/55  NTS.
Hornet...........................   03/12/55  NTS.
Bee..............................   03/22/55  NTS.
Ess..............................   03/23/55  NTS.
Apple-1..........................   03/29/55  NTS.

[[Page 349]]

 
Wasp Prime.......................   03/29/55  NTS.
Ha...............................   04/06/55  NTS.
Post.............................   04/09/55  NTS.
Met..............................   04/15/55  NTS.
Apple-2..........................   05/05/55  NTS.
Zucchini.........................   05/15/55  NTS.
------------------------------------------------------------------------

    (12) For Operation Wigwam, the period May 14, 1955, through May 15, 
1955:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Wigwam...........................   05/14/55  Pacific.
------------------------------------------------------------------------

    (13) For Operation Redwing, the period May 2, 1956, through August 
6, 1956, for all activities other than service as a member of the 
garrison or maintenance forces on the atoll of Enewetak from August 7, 
1956, through August 7, 1957; the period of atmospheric nuclear testing 
for service as a member of the garrison or maintenance forces on the 
atoll of Enewetak shall run from May 2, 1956, through August 7, 1957:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Lacrosse.........................   05/05/56  Enewetak.
Cherokee.........................   05/21/56  Bikini.
Zuni.............................   05/28/56  Bikini.
Yuma.............................   05/28/56  Enewetak.
Erie.............................   05/31/56  Enewetak.
Seminole.........................   06/06/56  Enewetak.
Flathead.........................   06/12/56  Bikini.
Blackfoot........................   06/12/56  Enewetak.
Kickapoo.........................   06/14/56  Enewetak.
Osage............................   06/16/56  Enewetak.
Inca.............................   06/22/56  Enewetak.
Dakota...........................   06/26/56  Bikini.
Mohawk...........................   07/03/56  Enewetak.
Apache...........................   07/09/56  Enewetak.
Navajo...........................   07/11/56  Bikini.
Tewa.............................   07/21/56  Bikini.
Huron............................   07/22/56  Enewetak.
------------------------------------------------------------------------

    (14) For Operation Plumbbob, the period May 28, 1957, through 
October 22, 1957:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Boltzmann........................   05/28/57  NTS.
Franklin.........................   06/02/57  NTS.
Lassen...........................   06/05/57  NTS.
Wilson...........................   06/18/57  NTS.
Priscilla........................   06/24/57  NTS.
Hood.............................   07/05/57  NTS.
Diablo...........................   07/15/57  NTS.
John.............................   07/19/57  NTS.
Kepler...........................   07/24/57  NTS.
Owens............................   07/25/57  NTS.
Stokes...........................   08/07/57  NTS.
Shasta...........................   08/18/57  NTS.
Doppler..........................   08/23/57  NTS.
Franklin Prime...................   08/30/57  NTS.
Smoky............................   08/31/57  NTS.
Galileo..........................   09/02/57  NTS.
Wheeler..........................   09/06/57  NTS.
Laplace..........................   09/08/57  NTS.
Fizeau...........................   09/14/57  NTS.
Newton...........................   09/16/57  NTS.
Whitney..........................   09/23/57  NTS.
Charleston.......................   09/28/57  NTS.
Morgan...........................   10/07/57  NTS.
------------------------------------------------------------------------

    (15) For Operation Hardtack I, the period April 26, 1958, through 
October 31, 1958, for all activities other than service as a member of 
the garrison or maintenance forces on the atoll of Enewetak from 
November 1, 1958, through April 30, 1959; the period of atmospheric 
nuclear testing for service as a member of the garrison of maintenance 
forces on the atoll of Enewetak shall run from April 26, 1958, through 
April 30, 1959:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Yucca............................   04/28/58  Pacific.
Cactus...........................   05/06/58  Enewetak.
Fir..............................   05/12/58  Bikini.
Butternut........................   05/12/58  Enewetak.
Koa..............................   05/13/58  Enewetak.
Wahoo............................   05/16/58  Enewetak.
Holly............................   05/21/58  Enewetak.
Nutmeg...........................   05/22/58  Bikini.
Yellowwood.......................   05/26/58  Enewetak.
Magnolia.........................   05/27/58  Enewetak.
Tobacco..........................   05/30/58  Enewetak.
Sycamore.........................   05/31/58  Bikini.
Rose.............................   06/03/58  Enewetak.
Umbrella.........................   06/09/58  Enewetak.
Maple............................   06/11/58  Bikini.
Aspen............................   06/15/58  Bikini.
Walnut...........................   06/15/58  Enewetak.
Linden...........................   06/18/58  Enewetak.
Redwood..........................   06/28/58  Bikini.
Elder............................   06/28/58  Enewetak.
Oak..............................   06/29/58  Enewetak.
Hickory..........................   06/29/58  Bikini.
Sequoia..........................   07/02/58  Enewetak.
Cedar............................   07/03/58  Bikini.
Dogwood..........................   07/06/58  Enewetak.
Poplar...........................   07/12/58  Bikini.
Scaevola.........................   07/14/58  Enewetak.
Pisonia..........................   07/18/58  Enewetak.
Juniper..........................   07/22/58  Bikini.
Olive............................   07/23/58  Enewetak.
Pine.............................   07/27/58  Enewetak.
Teak.............................   07/31/58  Johnston Isl.
Qunice...........................   08/06/58  Enewetak.
Orange...........................   08/11/58  Johnston Isl.
Fig..............................   08/18/58  Enewetak.
------------------------------------------------------------------------

    (16) For Operation Argus, the period August 25, 1958, through 
September 10, 1958:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Argus I..........................   08/27/58  South Atlantic.
Argus II.........................   08/30/58  South Atlantic.
Argus III........................   09/06/58  South Atlantic.
------------------------------------------------------------------------


[[Page 350]]

    (17) For Operation Hardtack II, the period September 19, 1958, 
through October 31, 1958:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Eddy.............................   09/19/58  NTS.
Mora.............................   09/29/58  NTS.
Quay.............................   10/10/58  NTS.
Lea..............................   10/13/58  NTS.
Hamilton.........................   10/15/58  NTS.
Dona Ana.........................   10/16/58  NTS.
Rio Arriba.......................   10/18/58  NTS.
Socorro..........................   10/22/58  NTS.
Wrangell.........................   10/22/58  NTS.
Rushmore.........................   10/22/58  NTS
Sanford..........................   10/26/58  NTS.
De Baca..........................   10/26/58  NTS.
Humboldt.........................   10/29/58  NTS
Mazama...........................   10/29/58  NTS.
Santa Fe.........................   10/30/58  NTS.
------------------------------------------------------------------------

    (18) For Operation Dominic I, the period April 23, 1962, through 
December 31, 1962:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Adobe............................   04/25/62  Christmas Isl.
Aztec............................   04/27/62  Christmas Isl.
Arkansas.........................   05/02/62  Christmas Isl.
Questa...........................   05/04/62  Christmas Isl.
Frigate Bird.....................   05/06/62  Pacific.
Yukon............................   05/08/62  Christmas Isl.
Mesilla..........................   05/09/62  Christmas Isl.
Muskegon.........................   05/11/62  Christmas Isl.
Swordfish........................   05/11/62  Pacific.
Encino...........................   05/12/62  Christmas Isl.
Swanee...........................   05/14/62  Christmas Isl.
Chetco...........................   05/19/62  Christmas Isl.
Tanana...........................   05/25/62  Christmas Isl.
Nambe............................   05/27/62  Christmas Isl.
Alma.............................   06/08/62  Christmas Isl.
Truckee..........................   06/09/62  Christmas Isl.
Yeso.............................   06/10/62  Christmas Isl.
Harlem...........................   06/12/62  Christmas Isl
Rinconada........................   06/15/62  Christmas Isl.
Dulce............................   06/17/62  Christmas Isl.
Petit............................   06/19/62  Christmas Isl.
Otowi............................   06/22/62  Christmas Isl.
Bighorn..........................   06/27/62  Christmas Isl.
Bluestone........................   06/30/62  Christmas Isl.
Starfish.........................   07/08/62  Johnston Isl.
Sunset...........................   07/10/62  Christmas Isl.
Pamlico..........................   07/11/62  Christmas Isl.
Androscoggin.....................   10/02/62  Johnston Isl.
Bumping..........................   10/06/62  Johnston Isl.
Chama............................   10/18/62  Johnston Isl.
Checkmate........................   10/19/62  Johnston Isl.
Bluegill.........................   10/25/62  Johnston Isl.
Calamity.........................   10/27/62  Johnston Isl.
Housatonic.......................   10/30/62  Johnston Isl.
Kingfish.........................   11/01/62  Johnston Isl.
Tightrope........................   11/03/62  Johnston Isl.
------------------------------------------------------------------------

    (19) For Operation Dominic II, the period July 7, 1962, through 
August 15, 1962:

------------------------------------------------------------------------
            Event name                Date             Location
------------------------------------------------------------------------
Little Feller II.................   07/07/62  NTS.
Johnie Boy.......................   07/11/62  NTS.
Small Boy........................   07/14/62  NTS.
Little Feller I..................   07/17/62  NTS.
------------------------------------------------------------------------

    (20) For Operation Plowshare, the period July 6, 1962, through July 
7, 1962, covering Project Sedan.



Sec. 79.32  Criteria for eligibility.

    To establish eligibility for compensation under this subpart, a 
claimant or eligible surviving beneficiary must establish each of the 
following:
    (a) That the claimant was present onsite at any time during a period 
of atmospheric nuclear testing;
    (b) That the claimant was a participant during that period in the 
atmospheric detonation of a nuclear device; and
    (c) That after such participation, the claimant contracted a 
specified compensable disease as set forth in Sec. 79.22(b).



Sec. 79.33  Proof of participation onsite during a period of atmospheric nuclear testing.

    (a) Claimants associated with the Department of Defense (DoD) 
Components or DoD contractors. (1) A claimant or eligible surviving 
beneficiary who alleges that the claimant was present onsite during a 
period of atmospheric nuclear testing as a member of the armed forces or 
an employee or contractor employee of the DoD, or any of its components 
or agencies, must submit the following information on the claim form:
    (i) The claimant's name;
    (ii) The claimant's military service number;
    (iii) The claimant's social security number;
    (iv) The site at which the claimant participated in an atmospheric 
nuclear test;
    (v) The name or number of the claimant's military organization or 
unit assignment at the time of his or her onsite participation;
    (vi) The dates of the claimant's assignment onsite; and
    (vii) As full and complete a description as possible of the 
claimant's official duties, responsibilities, and activities while 
participating onsite.
    (2) A claimant or eligible surviving beneficiary under this section 
need not

[[Page 351]]

submit any additional documentation of onsite participation during an 
atmospheric nuclear test at the time the claim is filed; however, 
additional documentation may be required as set forth in paragraph 
(a)(3) of this section.
    (3) Upon receipt under this subpart of a claim that contains the 
information set forth in paragraph (a)(1) of this section, the Radiation 
Exposure Compensation Program will forward the information to the DoD 
and request that the DoD conduct a search of its records for the purpose 
of gathering facts relating to the claimant's presence onsite and 
participation in an atmospheric nuclear test. If the facts gathered by 
the DoD are insufficient to establish the eligibility criteria in 
Sec. 79.32 of these regulations, the claimant or eligible surviving 
beneficiary will be notified and afforded the opportunity to submit 
military, government, or business records in accordance with the 
procedure set forth in Sec. 79.72(c).
    (b) Claimants Associated with the Atomic Energy Commission (AEC) or 
the Department of Energy (DOE), or Who Were Members of the Federal Civil 
Defense Administration or the Office of Civil and Defense Mobilization. 
(1) A claimant or eligible surviving beneficiary who alleges that the 
claimant was present onsite during an atmospheric nuclear test as an 
employee of the AEC, the DOE or any of their components, agencies or 
offices, or as an employee of a contractor of the AEC, or DOE, or as a 
member of the Federal Civil Defense or the Office of Civil and Defense 
Mobilization, must submit the following information on the claim form:
    (i) The claimant's name;
    (ii) The claimant's social security number;
    (iii) The site at which the claimant participated in an atmospheric 
nuclear test;
    (iv) The name or other identifying information associated with the 
claimant's organization, unit, assignment, or employer at the time of 
the claimant's participation onsite;
    (v) The dates of the claimant's assignment onsite; and
    (vi) As full and complete a description as possible of the 
claimant's official duties, responsibilities, and activities while 
participating onsite.
    (2) A claimant or eligible surviving beneficiary under this section 
need not at the time the claim is filed submit any additional 
documentation demonstrating the claimant's presence onsite during an 
atmospheric nuclear test; however, additional documentation may be 
thereafter be required as set forth in paragraph (b)(3) of this section.
    (3) Upon receipt under this subpart of a claim that contains the 
information set forth in paragraph (b)(1) of this section, the Radiation 
Exposure Compensation Program will forward the information to the Nevada 
Field Office of the Department of Energy (DOE/NV) and request that the 
DOE conduct a search of its records for the purpose of gathering facts 
relating to the claimant's presence onsite and participation in an 
atmospheric nuclear test. If the facts gathered by the DOE/NV are 
insufficient to establish the eligibility criteria in Sec. 79.32 of 
these regulations, the claimant or eligible surviving beneficiary will 
be notified and afforded the opportunity to submit military, government, 
or business records in accordance with the procedure set forth in 
Sec. 79.72(c).



Sec. 79.34  Proof of medical condition.

    Proof of medical condition under this subpart will be made in the 
same manner, and according to the same procedures and limitations, as 
are set forth in Sec. 79.16 and Sec. 79.26.



Sec. 79.35  Proof of onset of leukemia at least two years after first exposure, and proof of onset of a specified compensable disease more than five years after 
          first exposure.

    Absent any indication to the contrary, the earliest date of onsite 
participation indicated on any records accepted by the Radiation 
Exposure Compensation Program as proof of the claimant's onsite 
participation will be presumed to be the date of first or initial 
exposure. The date of onset will be the date of diagnosis as indicated 
on the medical documentation accepted by the Radiation Exposure 
Compensation Program as proof of the specified compensable disease. 
Proof of the onset of leukemia shall be established in accordance with 
Sec. 79.15.

[[Page 352]]



Sec. 79.36  Indication of the presence of hepatitis B or cirrhosis.

    Possible indication of hepatitis B or cirrhosis will be determined 
in accordance with the provisions of Sec. 79.27.

Subparts E-G [Reserved]



                          Subpart H--Procedures

    Source: Order No. 2604-2002, 67 FR 51423, Aug. 7, 2002, unless 
otherwise noted.



Sec. 79.70  Attorney General's delegation of authority.

    (a) An Assistant Director within the Constitutional and Specialized 
Tort Staff, Torts Branch, Civil Division, shall be assigned to manage 
the Radiation Exposure Compensation Program and issue a decision on each 
claim filed under the Act, and otherwise act on behalf of the Attorney 
General in all other matters relating to the administration of the 
Program, except for rulemaking authority. The Assistant Director may 
delegate any of his or her responsibilities under these regulations to 
an attorney working under the supervision of the Assistant Director.
    (b) The Assistant Attorney General, Civil Division, or the official 
designated by him to act on his behalf (the Appeals Officer), shall act 
on appeals from the Assistant Director's decisions.



Sec. 79.71  Filing of claims.

    (a) All claims for compensation under the Act must be in writing and 
submitted on a standard form designated by the Assistant Director for 
the filing of compensation claims. Except as specifically provided in 
these regulations, the claimant or eligible surviving beneficiary must 
furnish the medical documentation required by these regulations with his 
or her standard form. Except as specifically provided in these 
regulations, the claimant or eligible surviving beneficiary must also 
provide with the standard form any records establishing his or her 
physical presence in an affected area, onsite participation, employment 
in a uranium mine or mill, or employment as an ore transporter, in 
accordance with these regulations. The standard form must be completed, 
signed under oath either by a person eligible to file a claim under the 
Act or by that person's legal guardian, and mailed with supporting 
documentation to the following address: Radiation Exposure Compensation 
Program, U.S. Department of Justice, P.O. Box 146, Ben Franklin Station, 
Washington, DC 20044-0146. Copies of the standard form, as well as the 
regulations, guidelines, and other information, may be obtained by 
requesting the document or publications from the Assistant Director at 
the address indicated above or by accessing the Program's website at 
www.usdoj.gov/reca.
    (b) The Assistant Director will file a claim after receipt of the 
standard form with supporting documentation and examination for 
substantial compliance with these regulations. The date of filing shall 
be recorded by a stamp on the face of the standard form. The Assistant 
Director shall file only claims that substantially comply with 
Sec. 79.71(a) of these regulations. If a claim substantially fails to 
comply with the aforementioned section, the Assistant Director shall 
promptly return the claim unfiled to the sender with a statement 
identifying the reason(s) why the claim does not comply with the 
regulations. The sender may return the claim to the Assistant Director 
after correcting the deficiencies. For those cases that are filed, the 
Assistant Director shall promptly acknowledge receipt of the claim with 
a letter identifying the number assigned to the claim, the date the 
claim was filed, and the period within which the Assistant Director must 
act on the claim.
    (c) The following persons or their legal guardians are eligible to 
file claims for compensation under the Act in the order listed below:
    (1) The claimant;
    (2) If the claimant is deceased, the spouse of the claimant;
    (3) If there is no surviving spouse, a child of the claimant;
    (4) If there is no surviving spouse or child, a parent of the 
claimant;
    (5) If there is no surviving spouse, child or parent, a grandchild 
of the claimant; or

[[Page 353]]

    (6) If there is no surviving spouse, child, parent or grandchild, a 
grandparent of the claimant.
    (7) Only the above-mentioned beneficiaries are eligible to file a 
claim on behalf of the claimant.
    (d) The identity of the claimant must be established by submitting a 
birth certificate or one of the documents identified in Sec. 79.14(a) of 
these regulations when the person has no birth certificate. 
Additionally, documentation demonstrating any and all name changes must 
be provided.
    (e) (1) The spouse of a claimant must establish his or her 
eligibility to file a claim by furnishing:
    (i) His or her birth certificate and, if applicable, documentation 
demonstrating any and all name changes;
    (ii) The birth and death certificates of the claimant;
    (iii) One of the following documents to establish a marriage to the 
claimant:
    (A) The public record of marriage;
    (B) A certificate of marriage;
    (C) The religious record of marriage; or
    (D) A judicial or other governmental determination that a valid 
marriage existed, such as the final opinion or order of a probate court 
or a determination of the Social Security Administration that the 
claimant is the spouse of the decedent;
    (iv) A death certificate or divorce decree for each spouse of the 
claimant (if applicable); and
    (v) An affidavit (or declaration under oath on the standard claim 
form) stating that the spouse was married to the claimant for at least 
one year immediately prior to the claimant's death.
    (2) If the spouse is a member of an Indian Tribe, he or she need not 
provide any of the documents listed in paragraph (e)(1) of this section 
at the time the claim is filed (although these records may later be 
required), but should instead furnish a signed release of private 
information that the Assistant Director will use to obtain a statement 
of verification of all of the information listed above directly from the 
tribal records custodian. In identifying those individuals eligible to 
receive compensation by virtue of marriage, relationship, or 
survivorship, the Assistant Director shall, to the maximum extent 
practicable, take into consideration and give effect to established law, 
tradition, and custom of the particular affected Indian tribe.
    (f)(1) A child of a claimant must establish his or her eligibility 
to file a claim by furnishing:
    (i) His or her birth certificate and, if applicable, documentation 
demonstrating any and all name changes;
    (ii) The birth and death certificates of the claimant;
    (iii) One of the documents listed in paragraph (e)(3) of this 
section to establish each marriage to the claimant (if applicable);
    (iv) A death certificate or divorce decree for each spouse of the 
claimant (if applicable);
    (v) A death certificate for each of the other children of the 
claimant (if applicable);
    (vi) An affidavit (or declaration under oath on the standard claim 
form) stating the following:
    (A) That the claimant was never married, or, if the claimant was 
ever married, the name of each spouse, the date each marriage began and 
ended, and the date and place of divorce or death of the last spouse of 
the claimant; and
    (B) That the claimant had no other children, or, if the claimant did 
have other children, the name of each child, the date and place of birth 
of each child, and the date and place of death or current address of 
each child; and
    (vii) One of the following:
    (A) In the case of a natural child, a birth certificate showing that 
the claimant was the child's parent, or a judicial decree identifying 
the claimant as the child's parent;
    (B) In the case of an adopted child, the judicial decree of 
adoption; or
    (C) In the case of a stepchild, evidence of birth to the spouse of 
the claimant as outlined above, and records reflecting that the 
stepchild lived with the claimant in a regular parent-child 
relationship.
    (2) If the child is a member of an Indian Tribe, he or she need not 
provide any of the documents listed above in paragraph (f)(1) of this 
section at the time the claim is filed (although these records may later 
be required), but

[[Page 354]]

should instead furnish a signed release of private information that the 
Assistant Director will use to obtain a statement of verification of all 
of the information listed above directly from the tribal records 
custodian. In identifying those individuals eligible to receive 
compensation by virtue of survivorship, the Assistant Director shall, to 
the maximum extent practicable, take into consideration and give effect 
to established law, tradition, and custom of the particular affected 
Indian tribe.
    (g)(1) A parent of a claimant must establish his or her eligibility 
to file a claim by furnishing:
    (i) His or her birth certificate and, if applicable, documentation 
demonstrating any and all name changes;
    (ii) The birth and death certificates of the claimant;
    (iii) One of the documents listed in paragraph (e)(3) of this 
section to establish each marriage to the claimant (if applicable);
    (iv) A death certificate or divorce decree for each spouse of the 
claimant (if applicable);
    (v) A death certificate for each child of the claimant (if 
applicable);
    (vi) A death certificate for the other parent(s) (if applicable);
    (vii) An affidavit (or declaration under oath on the standard claim 
form) stating the following:
    (A) That the claimant was never married, or, if the claimant was 
ever married, the name of each spouse, the date each marriage began and 
ended, and the date and place of divorce or death of the last spouse of 
the claimant;
    (B) That the claimant had no children, or, if the claimant did have 
children, the name of each child, the date and place of birth of each 
child, and the date and place of death of each child; and
    (C) The name and address, or date and place of death, of the other 
parent(s) of the claimant; and
    (viii) One of the following:
    (A) In the case of a natural parent, a birth certificate showing 
that the claimant was the parent's child, or a judicial decree 
identifying the claimant as the parent's child; or
    (B) In the case of an adoptive parent, the judicial decree of 
adoption.
    (2) If the parent is a member of an Indian Tribe, he or she need not 
provide any of the documents listed in paragraph (g)(1) of this section 
at the time the claim is filed (although these records may later be 
required), but should instead furnish a signed release of private 
information that the Assistant Director will use to obtain a statement 
of verification of all of the information listed above directly from the 
tribal records custodian. In identifying those individuals eligible to 
receive compensation by virtue of survivorship, the Assistant Director 
shall, to the maximum extent practicable, take into consideration and 
give effect to established law, tradition, and custom of the particular 
affected Indian tribe.
    (h)(1) A grandchild of a claimant must establish his or her 
eligibility to file a claim by furnishing:
    (i) His or her birth certificate and, if applicable, documentation 
demonstrating any and all name changes;
    (ii) The birth and death certificates of the claimant;
    (iii) One of the documents listed in paragraph (e)(1)(iii) of this 
section to establish each marriage to the claimant (if applicable);
    (iv) A death certificate or divorce decree for each spouse of the 
claimant (if applicable);
    (v) A death certificate for each child of the claimant;
    (vi) A death certificate for each parent of the claimant;
    (vii) A death certificate for each of the other grandchildren of the 
claimant (if applicable);
    (viii) An affidavit (or declaration under oath on the standard claim 
form) stating the following:
    (A) That the claimant was never married, or, if the claimant was 
ever married, the name of each spouse, the date each marriage began and 
ended, and the date and place of divorce or death of the last spouse of 
the claimant;
    (B) The name of each child, the date and place of birth of each 
child, and the date and place of death of each child;
    (C) The names of each parent of the claimant together with the dates 
and places of death of each parent; and
    (D) That the claimant had no other grandchildren, or, if the 
claimant did

[[Page 355]]

have other grandchildren, the name of each grandchild, the date and 
place of birth of each grandchild, and the date and place of death or 
current address of each child; and
    (ix) One of the following:
    (A) In the case of a natural grandchild, a combination of birth 
certificates showing that the claimant was the grandchild's grandparent;
    (B) In the case of an adopted grandchild, a combination of judicial 
records and birth certificates showing that the claimant was the 
grandchild's grandparent; or
    (C) In the case of a stepgrandchild, evidence of birth to the spouse 
of the child of the claimant, as outlined above, and records reflecting 
that the stepchild lived with a child of the claimant in a regular 
parent-child relationship.
    (2) If the grandchild is a member of an Indian Tribe, he or she need 
not provide any of the documents listed above in paragraph (h)(1) of 
this section at the time the claim is filed (although these records may 
later be required), but should instead furnish a signed release of 
private information that the Assistant Director will use to obtain a 
statement of verification of all of the information listed above 
directly from the tribal records custodian. In identifying those 
individuals eligible to receive compensation by virtue of survivorship, 
the Assistant Director shall, to the maximum extent practicable, take 
into consideration and give effect to established law, tradition, and 
custom of the particular affected Indian tribe.
    (i)(1) A grandparent of the claimant must establish his or her 
eligibility to file a claim by furnishing:
    (i) His or her birth certificate and, if applicable, documentation 
demonstrating any and all name changes;
    (ii) The birth and death certificates of the claimant,
    (iii) One of the documents listed in paragraph (e)(3) of this 
section to establish each marriage to the claimant (if applicable);
    (iv) A death certificate or divorce decree for each spouse of the 
claimant (if applicable);
    (v) A death certificate for each child of the claimant (if 
applicable);
    (vi) A death certificate for each parent of the claimant;
    (vii) A death certificate for each grandchild of the claimant (if 
applicable);
    (viii) A death certificate for each of the other grandparents of the 
claimant (if applicable);
    (ix) An affidavit stating the following:
    (A) That the claimant was never married, or if the claimant was ever 
married, the name of each spouse, the date each marriage began and 
ended, and the date and place of divorce or death of the last spouse of 
the claimant;
    (B) That the claimant had no children, or, if the claimant did have 
children, the name of each child, the date and place of birth of each 
child, and the date and place of death of each child;
    (C) The names of each parent of the claimant together with the dates 
and places of death of each parent;
    (D) That the claimant had no grandchildren, or, if the claimant did 
have grandchildren, the name of each grandchild, the date and place of 
birth of each grandchild, and the date and place of death of each 
grandchild; and
    (E) The names of all other grandparents of the claimant together 
with the dates and places of birth of each grandparent, and the dates 
and places of death of each other grandparent or the current address of 
each other grandparent; and
    (x) One of the following:
    (A) In the case of a natural grandparent, a combination of birth 
certificates showing that the claimant was the grandparent's grandchild;
    (B) In the case of an adoptive grandparent, a combination of 
judicial records showing that the claimant was the grandparent's 
grandchild.
    (2) If the grandparent is a member of an Indian Tribe, he or she 
need not provide any of the documents listed above in paragraph (i)(1) 
of this section at the time the claim is filed (although these records 
may later be required), but should instead furnish a signed release of 
private information that the Assistant Director will use to obtain a 
statement of verification of all of the information listed above 
directly from the tribal records custodian. In identifying

[[Page 356]]

those individuals eligible to receive compensation by virtue of 
survivorship, the Assistant Director shall, to the maximum extent 
practicable, take into consideration and give effect to established law, 
tradition, and custom of the particular affected Indian tribe.
    (j) A claim that was filed and denied may be filed again in those 
cases where the claimant or eligible surviving beneficiary obtains 
documentation that he or she did not possess when the claim was filed 
previously and that redresses the deficiency for which the claim was 
denied, including, where applicable, documentation addressing:
    (1) An injury specified in the Act;
    (2) Residency in the affected area;
    (3) Onsite participation in a nuclear test;
    (4) Exposure to 40 WLMs of radiation while employed in a uranium 
mine or mines during the designated time period;
    (5) Employment for one year (12 consecutive or cumulative months) as 
a miller or ore transporter; or
    (6) The identity of the claimant and/or the eligible surviving 
beneficiary.
    (k) A claimant or eligible surviving beneficiary may not refile a 
claim more than two times. Claims filed prior to July 10, 2000, will not 
be included in determining the number of claims filed.



Sec. 79.72  Review and resolution of claims.

    (a) Initial review. The Assistant Director shall conduct an initial 
review of each claim that has been filed to determine whether:
    (1) The person submitting the claim represents that he or she is an 
eligible surviving beneficiary, in those cases where the claimant is 
deceased;
    (2) The medical condition identified in the claim is a disease 
specified in the Act for which the claimant or eligible surviving 
beneficiary could recover compensation;
    (3) For claims submitted under subparts B and C of this part, the 
period or place of physical presence set forth in the claim falls within 
the designated time period or affected areas identified in Sec. 79.11;
    (4) For claims submitted under subparts B and D of this part, the 
place and period of onsite participation set forth in the claim falls 
within the places and times set forth in Sec. 79.11 and Sec. 79.31; and
    (5) For claims submitted under subparts E, F, and G of this part, 
the period or place of uranium mining, mill working or ore transporting 
set forth in the claim falls within the designated time period and 
specified states identified in Secs. 79.42, 79.52, and 79.62. If the 
Assistant Director determines from the initial review that any one of 
the applicable criteria is not met, or that any other criterion of the 
regulations is not met, the Assistant Director shall so advise the 
claimant or eligible surviving beneficiary in writing, setting forth the 
reasons for the determination, and allow the claimant or eligible 
surviving beneficiary 60 days from the date of such notification to 
correct any deficiency in the claim. If the claimant or eligible 
surviving beneficiary fails adequately to correct the deficiencies 
within the 60-day period, the Assistant Director shall, without further 
review, issue a Decision denying the claim.
    (b) Review of medical documentation. The Assistant Director will 
examine the medical documentation submitted in support of the claim and 
determine whether it satisfies the criteria for eligibility established 
by the Act and these regulations. The Assistant Director may, for the 
purpose of verifying eligibility, require the claimant or eligible 
surviving beneficiary to provide an authorization to release any medical 
record identified in these regulations. If the Assistant Director 
determines that the documentation does not satisfy the criteria for 
eligibility established by the Act and these regulations, the Assistant 
Director shall so advise the claimant or eligible surviving beneficiary 
in writing, setting forth the reason(s) for the determination, and shall 
allow the claimant or eligible beneficiary 60 days from the date of 
notification, or such greater period as the Assistant Director permits, 
to furnish additional medical documentation that meets the requirements 
of the Act and the regulations. Where appropriate, the Assistant 
Director may require the claimant or eligible surviving beneficiary to 
provide an authorization to release additional

[[Page 357]]

records. If the claimant or eligible beneficiary fails, within 60 days 
or the greater period approved by the Assistant Director, to provide 
sufficient medical documentation or a valid release when requested by 
the Assistant Director, then the Assistant Director shall, without 
further review, issue a Decision denying the claim.
    (c) Review of the records. The Assistant Director will examine the 
other records submitted in support of the claim to prove those matters 
set forth in all other sections of the Act and the regulations, and will 
determine whether such records satisfy all other criteria for 
eligibility. For the purposes of verifying such eligibility, the 
Assistant Director may require the claimant or eligible surviving 
beneficiary to provide an authorization to release any record identified 
in these regulations. If the Assistant Director determines that the 
records do not satisfy the criteria for eligibility established by the 
Act and the regulations, the Assistant Director shall so advise the 
claimant or eligible surviving beneficiary in writing, setting forth the 
reasons for the determination, and shall provide the claimant or 
eligible surviving beneficiary 60 days from the date of notification, or 
such greater period as the Assistant Director permits, to furnish 
additional records to satisfy the requirements of the Act and the 
regulations. Where appropriate, the Assistant Director may require the 
claimant or eligible surviving beneficiary to provide an authorization 
to release additional records as an alternative to, or in addition to, 
the claimant or eligible beneficiary furnishing such additional records. 
If the claimant or eligible beneficiary fails, within sixty days or the 
greater period approved by the Assistant Director, to provide sufficient 
records or a valid release when requested by the Assistant Director, 
then the Assistant Director shall, without further review, issue a 
Decision denying the claim.
    (d) Decision. The Assistant Director shall review each claim and 
issue a written Decision on each claim within twelve months of the date 
the claim was filed. The Assistant Director may request from any 
claimant, or from any individual or entity on behalf of the claimant, 
any relevant additional information or documentation necessary to 
complete the determination of eligibility under paragraphs (a), (b), or 
(c) of this section. The period beginning on the date on which the 
Assistant Director makes a request for such additional information or 
documentation and ending on the date on which the claimant or individual 
or entity acting on behalf of the claimant submits that information or 
documentation (or informs the Assistant Director that it is not possible 
to provide that information or that the claimant or individual or entity 
will not provide that information) shall not apply to the twelve-month 
period. Any Decision denying a claim shall set forth reason(s) for the 
denial, shall indicate that the Decision of the Assistant Director may 
be appealed to the Assistant Attorney General, Civil Division, in 
writing within 60 days of the date of the Decision, or such greater 
period as may be permitted by the Assistant Attorney General, and shall 
identify the address to which the appeal should be sent.



Sec. 79.73  Appeals procedures.

    (a) An appeal must be in writing and must be received by the 
Radiation Exposure Compensation Program within sixty days of the date of 
the Decision denying the claim, unless a greater period has been 
permitted. Appeals must be sent to the following address: Radiation 
Exposure Compensation Program, Appeal of Decision, U.S. Department of 
Justice, P.O. Box 146, Ben Franklin Station, Washington, DC 20044-0146.
    (b) The claimant or eligible surviving beneficiary must set forth in 
the appeal the reason(s) why he or she believes that the Decision of the 
Assistant Director is incorrect.
    (c) Upon receipt of an appeal, the Radiation Exposure Compensation 
Program shall forward the appeal, the Decision, the claim, and all 
supporting documentation, to the Assistant Attorney General, or to the 
Appeals Officer if one is designated, for action on the appeal. If the 
appeal is not received within the 60-day period, or such greater period 
as may be permitted, the appeal may be denied without further review.

[[Page 358]]

    (d) The Assistant Attorney General or Appeals Officer shall review 
any appeal and other information forwarded by the Program. Within 90 
days after the receipt of an appeal, the Assistant Attorney General or 
Appeals Officer shall issue a Memorandum either affirming or reversing 
the Assistant Director's Decision or, when appropriate, remanding the 
claim to the Assistant Director for further action. The Memorandum shall 
include a statement of the reason(s) for such reversal, affirmance, or 
remand. The Memorandum and all papers relating to the claim shall be 
returned to the Radiation Exposure Compensation Program, which shall 
promptly inform the claimant or eligible surviving beneficiary of the 
action of the Assistant Attorney General or Appeals Officer. A 
Memorandum affirming or reversing the Assistant Director's Decision 
shall be deemed to be the final action of the Department of Justice on 
the claim.
    (e) Before seeking judicial review of a decision denying a claim 
under the Act, an individual must first seek review by the designated 
Appeals Officer. Once the appeals procedures are completed, an 
individual whose claim for compensation under the Act is affirmed on 
appeal may seek judicial review in a district court of the United 
States.



Sec. 79.74  [Reserved]



Sec. 79.75  Procedures for payment of claims.

    (a) Payment shall be made to the claimant or to the legal guardian 
of the claimant, unless the claimant is deceased at the time of the 
payment. In cases involving a claimant who is deceased, payment shall be 
made to an eligible surviving beneficiary or to the legal guardian 
acting on behalf of the eligible surviving beneficiary, in accordance 
with the terms and conditions specified in the Act. Once the Program has 
received the claimant's or eligible surviving beneficiary's election to 
accept the payment, the Assistant Director shall ensure that the claim 
is paid within six weeks. All time frames for processing claims under 
the Act are suspended during periods where the radiation Trust Fund is 
not funded.
    (b) In cases involving the approval of a claim, the Assistant 
Director shall take all necessary and appropriate steps to determine the 
correct amount of any offset to be made to the amount awarded under the 
Act and to verify the identity of the claimant or the existence of 
eligible surviving beneficiaries who are entitled by the Act to receive 
the payment the claimant would have received. The Assistant Director may 
conduct any investigation, and may require any claimant or eligible 
surviving beneficiary to provide or execute any affidavit, record, or 
document or authorize the release of any information the Assistant 
Director deems necessary to ensure that the compensation payment is made 
in the correct amount and to the correct person(s). If the claimant or 
eligible surviving beneficiary fails or refuses to execute an affidavit 
or release of information, or to provide a record or document requested, 
or fails to provide access to information, such failure or refusal may 
be deemed to be a rejection of the payment, unless the claimant or 
eligible surviving beneficiary does not have and cannot obtain the legal 
authority to provide, release or authorize access to the required 
information, records or documents.
    (c) Prior to authorizing payment, the Assistant Director shall 
require the claimant or each eligible surviving beneficiary to execute 
and provide an affidavit (or declaration under oath on the standard 
claim form) setting forth the amount of any payment made pursuant to a 
final award or settlement on a claim (other than a claim for worker's 
compensation), against any person, that is based on injuries incurred by 
the claimant on account of:
    (1) Exposure to radiation from atmospheric nuclear testing while 
present in an affected area (as defined in Sec. 79.11(a) of these 
regulations) at any time during the periods described in Sec. 79.11(c) 
of these regulations; or
    (2) Exposure to radiation during employment in a uranium mine, 
during employment as a uranium mill worker or during employment as an 
ore transporter at any time during the period described in section 5 of 
the Act. For purposes of this paragraph, a ``claim''

[[Page 359]]

includes, but is not limited to, any request or demand for money made or 
sought in a civil action or made or sought in anticipation of the filing 
of a civil action, but shall not include requests or demands made 
pursuant to a life insurance or health insurance contract. If any such 
award or settlement payment was made, the Assistant Director shall 
subtract the sum of such award or settlement payments from the payment 
to be made under the Act.
    (d) In the case of a claim filed under section 4(a)(1)(A)(i)(III) or 
section 4(a)(2)(C) of the Act, the Assistant Director shall require the 
claimant or each eligible surviving beneficiary to execute and provide 
an affidavit (or declaration under oath on the standard claim form) 
setting forth the amount of any payment made pursuant to a final award 
or settlement on a claim (other than a claim for worker's compensation) 
against any person or any payment made by the Department of Veterans 
Affairs, that is based on injuries incurred by the claimant on account 
of exposure to radiation as a result of onsite participation in a test 
involving the atmospheric detonation of a nuclear device. For purposes 
of this paragraph, a ``claim'' includes, but is not limited to, any 
request or demand for money made or sought in a civil action or made or 
sought in anticipation of a civil action, but shall not include requests 
or demands made pursuant to a life- or health-insurance contract.
    (1) Payments by the Department of Veterans Affairs shall include:
    (i) Any disability payments or compensation benefits paid to the 
claimant and his or her dependents while the claimant is alive; and
    (ii) Any Dependency and Indemnity Compensation payments made to 
survivors due to death related to the illness for which the claim under 
the Act is submitted.
    (2) Payments by the Department of Veterans Affairs shall not 
include:
    (i) Active duty pay, retired pay, retainer pay, or payments under 
the Survivor Benefits Plan;
    (ii) Death gratuities;
    (iii) SGLI, VGLI, or mortgage, life or health insurance payments;
    (iv) Burial benefits or reimbursement for burial expenses;
    (v) Loans or loan guarantees;
    (vi) Education benefits and payments;
    (vii) Vocational rehabilitation benefits and payments;
    (viii) Medical, hospital and dental benefits; or
    (ix) Commissary and PX privileges.
    (e) If any such award, settlement, or payment was made as described 
in paragraphs (c) or (d) of this section, the Assistant Director shall 
calculate the actuarial present value of such payment(s), and subtract 
the actuarial present value from the payment to be made under the Act. 
The actuarial present value shall be calculated using the worksheet 
attached as appendix C of this part in the following manner:
    (1) Step 1. Enter the sum of the past payments received in each year 
in the appropriate rows in column (2). Additional rows will be added as 
needed to calculate present value of payments received in the years 
prior to 1960 and after 1990.
    (2) Step 2. Enter the present CPI-U (to be obtained monthly from the 
Bureau of Labor Statistics, Department of Labor) in column (3).
    (3) Step 3. Enter the CPI (Major Expenditure Classes--All Items) for 
each year in which payments were received in the appropriate row in 
column (4). (These measures are provided for 1960 through 1990. The 
measures for subsequent years will be obtained from the Bureau of Labor 
Statistics.)
    (4) Step 4. For each row, multiply the amount in column (2) by the 
corresponding inflator (column (3) divided by column (4)) and enter the 
product in column (5).
    (5) Step 5. Add the products in column (5) and enter the sum on the 
line labeled ``Total of column (5) equals actuarial present value of 
past payments.''
    (6) Step 6. Subtract the total in Step 5 from the statutory payment 
of $75,000 and enter the remainder on the line labeled ``Net Claim Owed 
To Claimant.''
    (f) When the Assistant Director has verified the identity of the 
claimant or each eligible surviving beneficiary who is entitled to the 
compensation payment or to a share of the compensation payment, and has 
determined the correct amount of the payment or the

[[Page 360]]

share of the payment, he or she shall notify the claimant or each 
eligible surviving beneficiary, or his or her legal guardian, and 
require such person(s) to sign an Acceptance of Payment Form. Such form 
shall be signed and returned within 60 days of the date of the form or 
such greater period as may be allowed by the Assistant Director. Failure 
to return the signed form within the required time may be deemed to be a 
rejection of the payment. Signing and returning the form within the 
required time shall constitute acceptance of the payment, unless the 
individual who has signed the form dies prior to receiving the actual 
payment, in which case the person who possesses the payment shall return 
it to the Assistant Director for redetermination of the correct 
disbursement of the payment.
    (g) Rejected compensation payments or shares of compensation 
payments shall not be distributed to other eligible surviving 
beneficiaries, but shall be returned to the Trust Fund for use in paying 
other claims.
    (h) Upon receipt of the Acceptance of Payment Form, the Assistant 
Director or the Constitutional and Specialized Tort Staff Director or 
Deputy Director, or their designee, shall authorize the appropriate 
authorities to issue a check to the claimant or to each eligible 
surviving beneficiary who has accepted payment out of the funds 
appropriated for this purpose.
    (i) Multiple payments. (1) No claimant may receive payment under 
more than one subpart of these regulations for illnesses that he or she 
contracted. In addition to one payment for his or her illnesses, he or 
she may also receive one payment for each claimant for whom he or she 
qualifies as an eligible surviving beneficiary.
    (2) An eligible surviving beneficiary who is not also a claimant may 
receive one payment for each claimant for whom he or she qualifies as an 
eligible surviving beneficiary.

            Appendix A to Part 79--Pulmonary Function Tables

                                                                   Table 1--Males FVC
                                                            [80% of Predicted; Knudson 1983]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Age
                               Ht.                               ---------------------------------------------------------------------------------------
                                                                    35      37      39      41      43      45      47      49      51      53      55
--------------------------------------------------------------------------------------------------------------------------------------------------------
56.0............................................................    1.74    1.70    1.65    1.60    1.55    1.51    1.46    1.41    1.36    1.32    1.27
56.5............................................................    1.83    1.78    1.73    1.69    1.64    1.59    1.54    1.50    1.45    1.40    1.35
57.0............................................................    1.92    1.87    1.82    1.77    1.72    1.68    1.63    1.58    1.53    1.49    1.44
57.5............................................................    2.00    1.95    1.91    1.86    1.81    1.76    1.72    1.67    1.62    1.57    1.52
58.0............................................................    2.09    2.04    1.99    1.94    1.90    1.85    1.80    1.75    1.71    1.66    1.61
58.5............................................................    2.17    2.13    2.08    2.03    1.98    1.93    1.89    1.84    1.79    1.74    1.70
59.0............................................................    2.26    2.21    2.16    2.12    2.07    2.02    1.97    1.92    1.88    1.83    1.78
59.5............................................................    2.34    2.30    2.25    2.20    2.15    2.11    2.06    2.01    1.96    1.92    1.87
60.0............................................................    2.43    2.38    2.33    2.29    2.24    2.19    2.14    2.10    2.05    2.00    1.95
60.5............................................................    2.52    2.47    2.42    2.37    2.33    2.28    2.23    2.18    2.13    2.09    2.04
61.0............................................................    2.60    2.55    2.51    2.46    2.41    2.36    2.32    2.27    2.22    2.17    2.12
61.5............................................................    2.69    2.64    2.59    2.54    2.50    2.45    2.40    2.35    2.31    2.26    2.21
62.0............................................................    2.77    2.73    2.68    2.63    2.58    2.53    2.49    2.44    2.39    2.34    2.30
62.5............................................................    2.86    2.81    2.76    2.72    2.67    2.62    2.57    2.53    2.48    2.43    2.38
63.0............................................................    2.94    2.90    2.85    2.80    2.75    2.71    2.66    2.61    2.56    2.52    2.47
63.5............................................................    3.03    2.98    2.94    2.89    2.84    2.79    2.74    2.70    2.65    2.60    2.55
64.0............................................................    3.12    3.07    3.02    2.97    2.93    2.88    2.83    2.78    2.73    2.69    2.64
64.5............................................................    3.20    3.15    3.11    3.06    3.01    2.96    2.92    2.87    2.82    2.77    2.73
65.0............................................................    3.29    3.24    3.19    3.14    3.10    3.05    3.00    2.95    2.91    2.86    2.81
65.5............................................................    3.37    3.33    3.28    3.23    3.18    3.14    3.09    3.04    2.99    2.94    2.90
66.0............................................................    3.46    3.41    3.36    3.32    3.27    3.22    3.17    3.13    3.08    3.03    2.98
66.5............................................................    3.54    3.50    3.45    3.40    3.35    3.31    3.26    3.21    3.16    3.12    3.07
67.0............................................................    3.63    3.58    3.54    3.49    3.44    3.39    3.34    3.30    3.25    3.20    3.15
67.5............................................................    3.72    3.67    3.62    3.57    3.53    3.48    3.43    3.38    3.34    3.29    3.24
68.0............................................................    3.80    3.75    3.71    3.66    3.61    3.56    3.52    3.47    3.42    3.37    3.33
68.5............................................................    3.89    3.84    3.79    3.74    3.70    3.65    3.60    3.55    3.51    3.46    3.41
69.0............................................................    3.97    3.93    3.88    3.83    3.78    3.74    3.69    3.64    3.59    3.54    3.50
69.5............................................................    4.06    4.01    3.96    3.92    3.87    3.82    3.77    3.73    3.68    3.63    3.58
70.0............................................................    4.15    4.10    4.05    4.00    3.95    3.91    3.86    3.81    3.76    3.72    3.67
70.5............................................................    4.23    4.18    4.14    4.09    4.04    3.99    3.94    3.90    3.85    3.80    3.75
71.0............................................................    4.32    4.27    4.22    4.17    4.13    4.08    4.03    3.98    3.94    3.89    3.84

[[Page 361]]

 
71.5............................................................    4.40    4.35    4.31    4.26    4.21    4.16    4.12    4.07    4.02    3.97    3.93
72.0............................................................    4.49    4.44    4.39    4.35    4.30    4.25    4.20    4.15    4.11    4.06    4.01
72.5............................................................    4.57    4.53    4.48    4.43    4.38    4.34    4.29    4.24    4.19    4.14    4.10
73.0............................................................    4.66    4.61    4.56    4.52    4.47    4.42    4.37    4.33    4.28    4.23    4.18
73.5............................................................    4.75    4.70    4.65    4.60    4.55    4.51    4.46    4.41    4.36    4.32    4.27
74.0............................................................    4.83    4.78    4.74    4.69    4.64    4.59    4.55    4.50    4.45    4.40    4.35
74.5............................................................    4.92    4.87    4.82    4.77    4.73    4.68    4.63    4.58    4.54    4.49    4.44
75.0............................................................    5.00    4.96    4.91    4.86    4.81    4.76    4.72    4.67    4.62    4.57    4.53
75.5............................................................    5.09    5.04    4.99    4.95    4.90    4.85    4.80    4.75    4.71    4.66    4.61
76.0............................................................    5.17    5.13    5.08    5.03    4.98    4.94    4.89    4.84    4.79    4.75    4.70
76.5............................................................    5.26    5.21    5.16    5.12    5.07    5.02    4.97    4.93    4.88    4.83    4.78
77.0............................................................    5.35    5.30    5.25    5.20    5.16    5.11    5.06    5.01    4.96    4.92    4.87
77.5............................................................    5.43    5.38    5.34    5.29    5.24    5.19    5.15    5.10    5.05    5.00    4.95
78.0............................................................    5.52    5.47    5.42    5.37    5.33    5.28    5.23    5.18    5.14    5.09    5.04
78.5............................................................    5.60    5.56    5.51    5.46    5.41    5.36    5.32    5.27    5.22    5.17    5.13
79.0............................................................    5.69    5.64    5.59    5.55    5.50    5.45    5.40    5.35    5.31    5.26    5.21
79.5............................................................    5.77    5.73    5.68    5.63    5.58    5.54    5.49    5.44    5.39    5.35    5.30
80.0............................................................    5.86    5.81    5.76    5.72    5.67    5.62    5.57    5.53    5.48    5.43    5.38
80.5............................................................    5.95    5.90    5.85    5.80    5.76    5.71    5.66    5.61    5.56    5.52    5.47
81.0............................................................    6.03    5.98    5.94    5.89    5.84    5.79    5.75    5.70    5.65    5.60    5.55
81.5............................................................    6.12    6.07    6.02    5.97    5.93    5.88    5.83    5.78    5.74    5.69    5.64
82.0............................................................    6.20    6.16    6.11    6.06    6.01    5.96    5.92    5.87    5.82    5.77    5.73
82.5............................................................    6.29    6.24    6.19    6.15    6.10    6.05    6.00    5.96    5.91    5.86    5.81
83.0............................................................    6.37    6.33    6.28    6.23    6.18    6.14    6.09    6.04    5.99    5.95    5.90
83.5............................................................    6.46    6.41    6.37    6.32    6.27    6.22    6.17    6.13    6.08    6.03    5.98
84.0............................................................    6.55    6.50    6.45    6.40    6.36    6.31    6.26    6.21    6.16    6.12    6.07
84.5............................................................    6.63    6.58    6.54    6.49    6.44    6.39    6.35    6.30    6.25    6.20    6.16
85.0............................................................    6.72    6.67    6.62    6.57    6.53    6.48    6.43    6.38    6.34    6.29    6.24
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                               Table 1a--Males FVC
                                        [80% of Predicted; Knudson 1983]
----------------------------------------------------------------------------------------------------------------
                                                                        Age
               Ht.               -------------------------------------------------------------------------------
                                    57      59      61      63      65      67      69      71      73      75
----------------------------------------------------------------------------------------------------------------
56.0............................    1.22    1.17    1.12    1.08    1.03    0.98    0.93    0.89    0.84    0.79
56.5............................    1.31    1.26    1.21    1.16    1.11    1.07    1.02    0.97    0.92    0.88
57.0............................    1.39    1.34    1.30    1.25    1.20    1.15    1.11    1.06    1.01    0.96
57.5............................    1.48    1.43    1.38    1.33    1.29    1.24    1.19    1.14    1.10    1.05
58.0............................    1.56    1.52    1.47    1.42    1.37    1.32    1.28    1.23    1.18    1.13
58.5............................    1.65    1.60    1.55    1.51    1.46    1.41    1.36    1.31    1.27    1.22
59.0............................    1.73    1.69    1.64    1.59    1.54    1.50    1.45    1.40    1.35    1.31
59.5............................    1.82    1.77    1.72    1.68    1.63    1.58    1.53    1.49    1.44    1.39
60.0............................    1.91    1.86    1.81    1.76    1.72    1.67    1.62    1.57    1.52    1.48
60.5............................    1.99    1.94    1.90    1.85    1.80    1.75    1.71    1.66    1.61    1.56
61.0............................    2.08    2.03    1.98    1.93    1.89    1.84    1.79    1.74    1.70    1.65
61.5............................    2.16    2.12    2.07    2.02    1.97    1.92    1.88    1.83    1.78    1.73
62.0............................    2.25    2.20    2.15    2.11    2.06    2.01    1.96    1.91    1.87    1.82
62.5............................    2.33    2.29    2.24    2.19    2.14    2.10    2.05    2.00    1.95    1.91
63.0............................    2.42    2.37    2.32    2.28    2.23    2.18    2.13    2.09    2.04    1.99
63.5............................    2.51    2.46    2.41    2.36    2.32    2.27    2.22    2.17    2.12    2.08
64.0............................    2.59    2.54    2.50    2.45    2.40    2.35    2.31    2.26    2.21    2.16
64.5............................    2.68    2.63    2.58    2.53    2.49    2.44    2.39    2.34    2.30    2.25
65.0............................    2.76    2.72    2.67    2.62    2.57    2.52    2.48    2.43    2.38    2.33
65.5............................    2.85    2.80    2.75    2.71    2.66    2.61    2.56    2.52    2.47    2.42
66.0............................    2.93    2.89    2.84    2.79    2.74    2.70    2.65    2.60    2.55    2.51
66.5............................    3.02    2.97    2.93    2.88    2.83    2.78    2.73    2.69    2.64    2.59
67.0............................    3.11    3.06    3.01    2.96    2.92    2.87    2.82    2.77    2.72    2.68
67.5............................    3.19    3.14    3.10    3.05    3.00    2.95    2.91    2.86    2.81    2.76
68.0............................    3.28    3.23    3.18    3.13    3.09    3.04    2.99    2.94    2.90    2.85
68.5............................    3.36    3.32    3.27    3.22    3.17    3.13    3.08    3.03    2.98    2.93
69.0............................    3.45    3.40    3.35    3.31    3.26    3.21    3.16    3.12    3.07    3.02
69.5............................    3.53    3.49    3.44    3.39    3.34    3.30    3.25    3.20    3.15    3.11
70.0............................    3.62    3.57    3.53    3.48    3.43    3.38    3.33    3.29    3.24    3.19
70.5............................    3.71    3.66    3.61    3.56    3.52    3.47    3.42    3.37    3.33    3.28
71.0............................    3.79    3.74    3.70    3.65    3.60    3.55    3.51    3.46    3.41    3.36
71.5............................    3.88    3.83    3.78    3.73    3.69    3.64    3.59    3.54    3.50    3.45

[[Page 362]]

 
72.0............................    3.96    3.92    3.87    3.82    3.77    3.73    3.68    3.63    3.58    3.53
72.5............................    4.05    4.00    3.95    3.91    3.86    3.81    3.76    3.72    3.67    3.62
73.0............................    4.14    4.09    4.04    3.99    3.94    3.90    3.85    3.80    3.75    3.71
73.5............................    4.22    4.17    4.13    4.08    4.03    3.98    3.93    3.89    3.84    3.79
74.0............................    4.31    4.26    4.21    4.16    4.12    4.07    4.02    3.97    3.93    3.88
74.5............................    4.39    4.34    4.30    4.25    4.20    4.15    4.11    4.06    4.01    3.96
75.0............................    4.48    4.43    4.38    4.34    4.29    4.24    4.19    4.14    4.10    4.05
75.5............................    4.56    4.52    4.47    4.42    4.37    4.33    4.28    4.23    4.18    4.13
76.0............................    4.65    4.60    4.55    4.51    4.46    4.41    4.36    4.32    4.27    4.22
76.5............................    4.74    4.69    4.64    4.59    4.54    4.50    4.45    4.40    4.35    4.31
77.0............................    4.82    4.77    4.73    4.68    4.63    4.58    4.54    4.49    4.44    4.39
77.5............................    4.91    4.86    4.81    4.76    4.72    4.67    4.62    4.57    4.53    4.48
78.0............................    4.99    4.95    4.90    4.85    4.80    4.75    4.71    4.66    4.61    4.56
78.5............................    5.08    5.03    4.98    4.94    4.89    4.84    4.79    4.74    4.70    4.65
79.0............................    5.16    5.12    5.07    5.02    4.97    4.93    4.88    4.83    4.78    4.74
79.5............................    5.25    5.20    5.15    5.11    5.06    5.01    4.96    4.92    4.87    4.82
80.0............................    5.34    5.29    5.24    5.19    5.15    5.10    5.05    5.00    4.95    4.91
80.5............................    5.42    5.37    5.33    5.28    5.23    5.18    5.14    5.09    5.04    4.99
81.0............................    5.51    5.46    5.41    5.36    5.32    5.27    5.22    5.17    5.13    5.08
81.5............................    5.59    5.55    5.50    5.45    5.40    5.35    5.31    5.26    5.21    5.16
82.0............................    5.68    5.63    5.58    5.54    5.49    5.44    5.39    5.34    5.30    5.25
82.5............................    5.76    5.72    5.67    5.62    5.57    5.53    5.48    5.43    5.38    5.34
83.0............................    5.85    5.80    5.75    5.71    5.66    5.61    5.56    5.52    5.47    5.42
83.5............................    5.94    5.89    5.84    5.79    5.75    5.70    5.65    5.60    5.55    5.51
84.0............................    6.02    5.97    5.93    5.88    5.83    5.78    5.74    5.69    5.64    5.59
84.5............................    6.11    6.06    6.01    5.96    5.92    5.87    5.82    5.77    5.73    5.68
85.0............................    6.19    6.15    6.10    6.05    6.00    5.95    5.91    5.86    5.81    5.76
----------------------------------------------------------------------------------------------------------------


                                                                   Table 2--Males FEV1
                                                            [80% of Predicted; Knudson 1983]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Age
                               Ht.                               ---------------------------------------------------------------------------------------
                                                                    35      37      39      41      43      45      47      49      51      53      55
--------------------------------------------------------------------------------------------------------------------------------------------------------
56.0............................................................    1.54    1.49    1.44    1.40    1.35    1.30    1.26    1.21    1.16    1.12    1.07
56.5............................................................    1.61    1.56    1.51    1.47    1.42    1.37    1.33    1.28    1.23    1.18    1.14
57.0............................................................    1.67    1.63    1.58    1.53    1.49    1.44    1.39    1.35    1.30    1.25    1.21
57.5............................................................    1.74    1.69    1.65    1.60    1.55    1.51    1.46    1.41    1.37    1.32    1.27
58.0............................................................    1.81    1.76    1.71    1.67    1.62    1.57    1.53    1.48    1.43    1.39    1.34
58.5............................................................    1.88    1.83    1.78    1.74    1.69    1.64    1.60    1.55    1.50    1.46    1.41
59.0............................................................    1.94    1.90    1.85    1.80    1.76    1.71    1.66    1.62    1.57    1.52    1.48
59.5............................................................    2.01    1.96    1.92    1.87    1.82    1.78    1.73    1.68    1.64    1.59    1.54
60.0............................................................    2.08    2.03    1.98    1.94    1.89    1.84    1.80    1.75    1.70    1.66    1.61
60.5............................................................    2.15    2.10    2.05    2.01    1.96    1.91    1.87    1.82    1.77    1.73    1.68
61.0............................................................    2.21    2.17    2.12    2.07    2.03    1.98    1.93    1.89    1.84    1.79    1.75
61.5............................................................    2.28    2.23    2.19    2.14    2.09    2.05    2.00    1.95    1.91    1.86    1.81
62.0............................................................    2.35    2.30    2.26    2.21    2.16    2.11    2.07    2.02    1.97    1.93    1.88
62.5............................................................    2.42    2.37    2.32    2.28    2.23    2.18    2.14    2.09    2.04    2.00    1.95
63.0............................................................    2.48    2.44    2.39    2.34    2.30    2.25    2.20    2.16    2.11    2.06    2.02
63.5............................................................    2.55    2.50    2.46    2.41    2.36    2.32    2.27    2.22    2.18    2.13    2.08
64.0............................................................    2.62    2.57    2.53    2.48    2.43    2.39    2.34    2.29    2.25    2.20    2.15
64.5............................................................    2.69    2.64    2.59    2.55    2.50    2.45    2.41    2.36    2.31    2.27    2.22
65.0............................................................    2.75    2.71    2.66    2.61    2.57    2.52    2.47    2.43    2.38    2.33    2.29
65.5............................................................    2.82    2.77    2.73    2.68    2.63    2.59    2.54    2.49    2.45    2.40    2.35
66.0............................................................    2.89    2.84    2.80    2.75    2.70    2.66    2.61    2.56    2.52    2.47    2.42
66.5............................................................    2.96    2.91    2.86    2.82    2.77    2.72    2.68    2.63    2.58    2.54    2.49
67.0............................................................    3.02    2.98    2.93    2.88    2.84    2.79    2.74    2.70    2.65    2.60    2.56
67.5............................................................    3.09    3.05    3.00    2.95    2.90    2.86    2.81    2.76    2.72    2.67    2.62
68.0............................................................    3.16    3.11    3.07    3.02    2.97    2.93    2.88    2.83    2.79    2.74    2.69
68.5............................................................    3.23    3.18    3.13    3.09    3.04    2.99    2.95    2.90    2.85    2.81    2.76
69.0............................................................    3.29    3.25    3.20    3.15    3.11    3.06    3.01    2.97    2.92    2.87    2.83
69.5............................................................    3.36    3.32    3.27    3.22    3.18    3.13    3.08    3.03    2.99    2.94    2.89
70.0............................................................    3.43    3.38    3.34    3.29    3.24    3.20    3.15    3.10    3.06    3.01    2.96
70.5............................................................    3.50    3.45    3.40    3.36    3.31    3.26    3.22    3.17    3.12    3.08    3.03
71.0............................................................    3.56    3.52    3.47    3.42    3.38    3.33    3.28    3.24    3.19    3.14    3.10
71.5............................................................    3.63    3.59    3.54    3.49    3.45    3.40    3.35    3.31    3.26    3.21    3.17
72.0............................................................    3.70    3.65    3.61    3.56    3.51    3.47    3.42    3.37    3.33    3.28    3.23

[[Page 363]]

 
72.5............................................................    3.77    3.72    3.67    3.63    3.58    3.53    3.49    3.44    3.39    3.35    3.30
73.0............................................................    3.83    3.79    3.74    3.69    3.65    3.60    3.55    3.51    3.46    3.41    3.37
73.5............................................................    3.90    3.86    3.81    3.76    3.72    3.67    3.62    3.58    3.53    3.48    3.44
74.0............................................................    3.97    3.92    3.88    3.83    3.78    3.74    3.69    3.64    3.60    3.55    3.50
74.5............................................................    4.04    3.99    3.94    3.90    3.85    3.80    3.76    3.71    3.66    3.62    3.57
75.0............................................................    4.11    4.06    4.01    3.97    3.92    3.87    3.82    3.78    3.73    3.68    3.64
75.5............................................................    4.17    4.13    4.08    4.03    3.99    3.94    3.89    3.85    3.80    3.75    3.71
76.0............................................................    4.24    4.19    4.15    4.10    4.05    4.01    3.96    3.91    3.87    3.82    3.77
76.5............................................................    4.31    4.26    4.21    4.17    4.12    4.07    4.03    3.98    3.93    3.89    3.84
77.0............................................................    4.38    4.33    4.28    4.24    4.19    4.14    4.10    4.05    4.00    3.96    3.91
77.5............................................................    4.44    4.40    4.35    4.30    4.26    4.21    4.16    4.12    4.07    4.02    3.98
78.0............................................................    4.51    4.46    4.42    4.37    4.32    4.28    4.23    4.18    4.14    4.09    4.04
78.5............................................................    4.58    4.53    4.48    4.44    4.39    4.34    4.30    4.25    4.20    4.16    4.11
79.0............................................................    4.65    4.60    4.55    4.51    4.46    4.41    4.37    4.32    4.27    4.23    4.18
79.5............................................................    4.71    4.67    4.62    4.57    4.53    4.48    4.43    4.39    4.34    4.29    4.25
80.0............................................................    4.78    4.73    4.69    4.64    4.59    4.55    4.50    4.45    4.41    4.36    4.31
80.5............................................................    4.85    4.80    4.76    4.71    4.66    4.61    4.57    4.52    4.47    4.43    4.38
81.0............................................................    4.92    4.87    4.82    4.78    4.73    4.68    4.64    4.59    4.54    4.50    4.45
81.5............................................................    4.98    4.94    4.89    4.84    4.80    4.75    4.70    4.66    4.61    4.56    4.52
82.0............................................................    5.05    5.00    4.96    4.91    4.86    4.82    4.77    4.72    4.68    4.63    4.58
82.5............................................................    5.12    5.07    5.03    4.98    4.93    4.89    4.84    4.79    4.74    4.70    4.65
83.0............................................................    5.19    5.14    5.09    5.05    5.00    4.95    4.91    4.86    4.81    4.77    4.72
83.5............................................................    5.25    5.21    5.16    5.11    5.07    5.02    4.97    4.93    4.88    4.83    4.79
84.0............................................................    5.32    5.27    5.23    5.18    5.13    5.09    5.04    4.99    4.95    4.90    4.85
84.5............................................................    5.39    5.34    5.30    5.25    5.20    5.16    5.11    5.06    5.02    4.97    4.92
85.0............................................................    5.46    5.41    5.36    5.32    5.27    5.22    5.18    5.13    5.08    5.04    4.99
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                              Table 2a--Males FEV1
                                        [80% of Predicted; Knudson 1983]
----------------------------------------------------------------------------------------------------------------
                                                                        Age
               Ht.               -------------------------------------------------------------------------------
                                    57      59      61      63      65      67      69      71      73      75
----------------------------------------------------------------------------------------------------------------
56.0............................    1.02    0.98    0.93    0.88    0.84    0.79    0.74    0.70    0.65    0.60
56.5............................    1.09    1.04    1.00    0.95    0.90    0.86    0.81    0.76    0.72    0.67
57.0............................    1.16    1.11    1.07    1.02    0.97    0.93    0.88    0.83    0.79    0.74
57.5............................    1.23    1.18    1.13    1.09    1.04    0.99    0.95    0.90    0.85    0.81
58.0............................    1.29    1.25    1.20    1.15    1.11    1.06    1.01    0.97    0.92    0.87
58.5............................    1.36    1.31    1.27    1.22    1.17    1.13    1.08    1.03    0.99    0.94
59.0............................    1.43    1.38    1.34    1.29    1.24    1.20    1.15    1.10    1.06    1.01
59.5............................    1.50    1.45    1.40    1.36    1.31    1.26    1.22    1.17    1.12    1.08
60.0............................    1.56    1.52    1.47    1.42    1.38    1.33    1.28    1.24    1.19    1.14
60.5............................    1.63    1.59    1.54    1.49    1.45    1.40    1.35    1.30    1.26    1.21
61.0............................    1.70    1.65    1.62    1.56    1.51    1.47    1.42    1.37    1.33    1.28
61.5............................    1.77    1.72    1.67    1.63    1.58    1.53    1.49    1.44    1.39    1.35
62.0............................    1.83    1.79    1.74    1.69    1.65    1.60    1.55    1.51    1.46    1.41
62.5............................    1.90    1.86    1.81    1.76    1.72    1.67    1.62    1.58    1.53    1.48
63.0............................    1.97    1.92    1.88    1.83    1.78    1.74    1.69    1.64    1.60    1.55
63.5............................    2.04    1.99    1.94    1.90    1.85    1.80    1.76    1.71    1.66    1.62
64.0............................    2.10    2.06    2.01    1.96    1.92    1.87    1.82    1.78    1.73    1.68
64.5............................    2.17    2.13    2.08    2.03    1.99    1.94    1.89    1.85    1.80    1.75
65.0............................    2.24    2.19    2.15    2.10    2.05    2.01    1.96    1.91    1.87    1.82
65.5............................    2.31    2.26    2.21    2.17    2.12    2.07    2.03    1.98    1.93    1.89
66.0............................    2.38    2.33    2.28    2.24    2.19    2.14    2.09    2.05    2.00    1.95
66.5............................    2.44    2.40    2.35    2.30    2.26    2.21    2.16    2.12    2.07    2.02
67.0............................    2.51    2.46    2.42    2.37    2.32    2.28    2.23    2.18    2.14    2.09
67.5............................    2.58    2.53    2.48    2.44    2.39    2.34    2.30    2.25    2.20    2.16
68.0............................    2.65    2.60    2.55    2.51    2.46    2.41    2.37    2.32    2.27    2.22
68.5............................    2.71    2.67    2.62    2.57    2.53    2.48    2.43    2.39    2.34    2.29
69.0............................    2.78    2.73    2.69    2.64    2.59    2.55    2.50    2.45    2.41    2.36
69.5............................    2.85    2.80    2.75    2.71    2.66    2.61    2.57    2.52    2.47    2.43
70.0............................    2.92    2.87    2.82    2.78    2.73    2.68    2.64    2.59    2.54    2.50
70.5............................    2.98    2.94    2.89    2.84    2.80    2.75    2.70    2.66    2.61    2.56
71.0............................    3.05    3.00    2.96    2.91    2.86    2.82    2.77    2.72    2.68    2.63
71.5............................    3.12    3.07    3.02    2.98    2.93    2.88    2.84    2.79    2.74    2.70
72.0............................    3.19    3.14    3.09    3.05    3.00    2.95    2.91    2.86    2.81    2.77
72.5............................    3.25    3.21    3.16    3.11    3.07    3.02    2.97    2.93    2.88    2.83

[[Page 364]]

 
73.0............................    3.32    3.27    3.23    3.18    3.13    3.09    3.04    2.99    2.95    2.90
73.5............................    3.39    3.34    3.30    3.25    3.20    3.16    3.11    3.06    3.01    2.97
74.0............................    3.46    3.41    3.36    3.32    3.27    3.22    3.18    3.13    3.08    3.04
74.5............................    3.52    3.48    3.43    3.38    3.34    3.29    3.24    3.20    3.15    3.10
75.0............................    3.59    3.54    3.50    3.45    3.40    3.36    3.31    3.26    3.22    3.17
75.5............................    3.66    3.61    3.57    3.52    3.47    3.43    3.38    3.33    3.29    3.24
76.0............................    3.73    3.68    3.63    3.59    3.54    3.49    3.45    3.40    3.35    3.31
76.5............................    3.79    3.75    3.70    3.65    3.61    3.56    3.51    3.47    3.42    3.37
77.0............................    3.86    3.81    3.77    3.72    3.67    3.63    3.58    3.53    3.49    3.44
77.5............................    3.93    3.88    3.84    3.79    3.74    3.70    3.65    3.60    3.56    3.51
78.0............................    4.00    3.95    3.90    3.86    3.81    3.76    3.72    3.67    3.62    3.58
78.5............................    4.06    4.02    3.97    3.92    3.88    3.83    3.78    3.74    3.69    3.64
79.0............................    4.13    4.09    4.04    3.99    3.94    3.90    3.85    3.80    3.76    3.71
79.5............................    4.20    4.15    4.11    4.06    4.01    3.97    3.92    3.87    3.83    3.78
80.0............................    4.27    4.22    4.17    4.13    4.08    4.03    3.99    3.94    3.89    3.85
80.5............................    4.33    4.29    4.24    4.19    4.15    4.10    4.05    4.01    3.96    3.91
81.0............................    4.40    4.36    4.31    4.26    4.22    4.17    4.12    4.08    4.03    3.98
81.5............................    4.47    4.42    4.38    4.33    4.28    4.24    4.19    4.14    4.10    4.05
82.0............................    4.54    4.49    4.44    4.40    4.35    4.30    4.26    4.21    4.16    4.12
82.5............................    4.60    4.56    4.51    4.46    4.42    4.37    4.32    4.28    4.23    4.18
83.0............................    4.67    4.63    4.58    4.53    4.49    4.44    4.39    4.35    4.30    4.25
83.5............................    4.74    4.69    4.65    4.60    4.55    4.51    4.46    4.41    4.37    4.32
84.0............................    4.81    4.76    4.71    4.67    4.62    4.57    4.53    4.48    4.43    4.39
84.5............................    4.88    4.83    4.78    4.73    4.69    4.64    4.59    4.55    4.50    4.45
85.0............................    4.94    4.90    4.85    4.80    4.76    4.71    4.66    4.62    4.57    4.52
----------------------------------------------------------------------------------------------------------------


                                                                   Table 3--Females FV
                                                            [80% of Predicted; Knudson 1983]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Age
                               Ht.                               ---------------------------------------------------------------------------------------
                                                                    35      37      39      41      43      45      47      49      51      53      55
--------------------------------------------------------------------------------------------------------------------------------------------------------
52.0............................................................    1.66    1.64    1.61    1.58    1.55    1.53    1.50    1.47    1.45    1.42    1.39
52.5............................................................    1.71    1.68    1.65    1.63    1.60    1.57    1.55    1.52    1.49    1.46    1.44
53.0............................................................    1.75    1.73    1.70    1.67    1.64    1.62    1.59    1.56    1.54    1.51    1.48
53.5............................................................    1.80    1.77    1.74    1.72    1.69    1.66    1.64    1.61    1.58    1.55    1.53
54.0............................................................    1.84    1.82    1.79    1.76    1.73    1.71    1.68    1.65    1.63    1.60    1.57
54.5............................................................    1.89    1.86    1.83    1.81    1.78    1.75    1.73    1.70    1.67    1.64    1.62
55.0............................................................    1.93    1.91    1.88    1.85    1.83    1.80    1.77    1.74    1.72    1.69    1.66
55.5............................................................    1.98    1.95    1.92    1.90    1.87    1.84    1.82    1.79    1.76    1.73    1.71
56.0............................................................    2.02    2.00    1.97    1.94    1.92    1.89    1.86    1.83    1.81    1.78    1.75
56.5............................................................    2.07    2.04    2.01    1.99    1.96    1.93    1.91    1.88    1.85    1.83    1.80
57.0............................................................    2.11    2.09    2.06    2.03    2.01    1.98    1.95    1.92    1.90    1.87    1.84
57.5............................................................    2.16    2.13    2.10    2.08    2.05    2.02    2.00    1.97    1.94    1.92    1.89
58.0............................................................    2.20    2.18    2.15    2.12    2.10    2.07    2.04    2.01    1.99    1.96    1.93
58.5............................................................    2.25    2.22    2.18    2.16    2.14    2.11    2.09    2.06    2.03    2.01    1.98
59.0............................................................    2.29    2.27    2.24    2.21    2.19    2.16    2.13    2.10    2.08    2.05    2.02
59.5............................................................    2.34    2.31    2.29    2.26    2.23    2.20    2.18    2.15    2.12    2.10    2.07
60.0............................................................    2.38    2.36    2.33    2.30    2.28    2.25    2.22    2.20    2.17    2.14    2.11
60.5............................................................    2.43    2.40    2.38    2.35    2.32    2.29    2.27    2.24    2.21    2.19    2.16
61.0............................................................    2.47    2.45    2.42    2.39    2.37    2.34    2.31    2.29    2.26    2.23    2.20
61.5............................................................    2.52    2.49    2.47    2.44    2.41    2.38    2.36    2.33    2.30    2.28    2.25
62.0............................................................    2.56    2.54    2.51    2.48    2.46    2.43    2.40    2.38    2.35    2.32    2.29
62.5............................................................    2.61    2.58    2.56    2.53    2.50    2.47    2.45    2.42    2.39    2.37    2.34
63.0............................................................    2.65    2.63    2.60    2.57    2.55    2.52    2.49    2.47    2.44    2.41    2.38
63.5............................................................    2.70    2.67    2.65    2.62    2.59    2.56    2.54    2.51    2.48    2.46    2.43
64.0............................................................    2.75    2.72    2.69    2.66    2.64    2.61    2.58    2.56    2.53    2.50    2.47
64.5............................................................    2.79    2.76    2.74    2.71    2.68    2.66    2.63    2.60    2.57    2.55    2.52
65.0............................................................    2.84    2.81    2.78    2.75    2.73    2.70    2.67    2.65    2.62    2.59    2.56
65.5............................................................    2.88    2.85    2.83    2.80    2.77    2.75    2.72    2.69    2.66    2.64    2.61
66.0............................................................    2.93    2.90    2.87    2.84    2.82    2.79    2.76    2.74    2.71    2.68    2.66
66.5............................................................    2.97    2.94    2.92    2.89    2.86    2.84    2.81    2.78    2.75    2.73    2.70
67.0............................................................    3.02    2.99    2.96    2.93    2.91    2.88    2.85    2.83    2.80    2.77    2.75
67.5............................................................    3.06    3.03    3.01    2.98    2.95    2.93    2.90    2.87    2.84    2.82    2.79
68.0............................................................    3.11    3.08    3.05    3.02    3.00    2.97    2.94    2.92    2.89    2.86    2.84
68.5............................................................    3.15    3.12    3.10    3.07    3.04    3.02    2.99    2.96    2.93    2.91    2.88
69.0............................................................    3.20    3.17    3.14    3.12    3.09    3.06    3.03    3.01    2.98    2.95    2.93

[[Page 365]]

 
69.5............................................................    3.24    3.21    3.19    3.16    3.13    3.11    3.08    3.05    3.03    3.00    2.97
70.0............................................................    3.29    3.26    3.23    3.21    3.18    3.15    3.12    3.10    3.07    3.04    3.02
70.5............................................................    3.33    3.30    3.28    3.25    3.22    3.20    3.17    3.14    3.12    3.09    3.06
71.0............................................................    3.38    3.35    3.32    3.30    3.27    3.24    3.21    3.19    3.16    3.13    3.11
71.5............................................................    3.42    3.39    3.37    3.34    3.31    3.29    3.26    3.23    3.21    3.18    3.15
72.0............................................................    3.47    3.44    3.41    3.39    3.36    3.33    3.30    3.28    3.25    3.22    3.20
72.5............................................................    3.51    3.49    3.46    3.43    3.40    3.38    3.35    3.32    3.30    3.27    3.24
73.0............................................................    3.56    3.53    3.50    3.48    3.45    3.42    3.39    3.37    3.34    3.31    3.29
73.5............................................................    3.60    3.58    3.55    3.52    3.49    3.47    3.44    3.41    3.39    3.36    3.33
74.0............................................................    3.65    3.62    3.59    3.57    3.54    3.51    3.49    3.46    3.43    3.40    3.38
74.5............................................................    3.69    3.67    3.64    3.61    3.58    3.56    3.53    3.50    3.48    3.45    3.42
75.0............................................................    3.74    3.71    3.68    3.66    3.63    3.60    3.58    3.55    3.52    3.49    3.47
75.5............................................................    3.78    3.76    3.73    3.70    3.67    3.65    3.62    3.59    3.57    3.54    3.51
76.0............................................................    3.83    3.80    3.77    3.75    3.72    3.69    3.67    3.64    3.61    3.58    3.56
76.5............................................................    3.87    3.85    3.82    3.79    3.76    3.74    3.71    3.68    3.66    3.63    3.60
77.0............................................................    3.92    3.89    3.86    3.84    3.81    3.78    3.76    3.73    3.70    3.67    3.65
77.5............................................................    3.96    3.94    3.91    3.88    3.85    3.83    3.80    3.77    3.75    3.72    3.69
78.0............................................................    4.01    3.98    3.95    3.93    3.90    3.87    3.85    3.82    3.79    3.76    3.74
78.5............................................................    4.05    4.03    4.00    3.97    3.95    3.92    3.89    3.86    3.84    3.81    3.78
79.0............................................................    4.10    4.07    4.04    4.02    3.99    3.96    3.94    3.91    3.88    3.86    3.83
79.5............................................................    4.14    4.12    4.09    4.06    4.04    4.01    3.98    3.95    3.93    3.90    3.87
80.0............................................................    4.19    4.16    4.13    4.11    4.08    4.05    4.03    4.00    3.97    3.95    3.92
80.5............................................................    4.23    4.21    4.18    4.15    4.13    4.10    4.07    4.04    4.02    3.99    3.96
81.0............................................................    4.28    4.25    4.22    4.20    4.17    4.14    4.12    4.09    4.06    4.04    4.01
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                              Table 3a--Females FVC
                                        [80% of Predicted; Knudson 1983]
----------------------------------------------------------------------------------------------------------------
                                                                        Age
               Ht.               -------------------------------------------------------------------------------
                                    57      59      61      63      65      67      69      71      73      75
----------------------------------------------------------------------------------------------------------------
52.0............................    1.37    1.34    1.31    1.28    1.26    1.23    1.20    1.47    1.43    1.38
52.5............................    1.41    1.38    1.36    1.33    1.30    1.27    1.25    1.51    1.46    1.41
53.0............................    1.46    1.43    1.40    1.37    1.35    1.32    1.29    1.54    1.49    1.44
53.5............................    1.50    1.47    1.45    1.42    1.39    1.37    1.34    1.57    1.52    1.48
54.0............................    1.55    1.52    1.49    1.46    1.44    1.41    1.38    1.60    1.55    1.51
54.5............................    1.59    1.56    1.54    1.51    1.48    1.46    1.43    1.63    1.59    1.54
55.0............................    1.64    1.61    1.58    1.55    1.53    1.50    1.47    1.67    1.62    1.57
55.5............................    1.68    1.65    1.63    1.60    1.57    1.55    1.52    1.70    1.65    1.60
56.0............................    1.73    1.70    1.67    1.64    1.62    1.59    1.56    1.73    1.68    1.63
56.5............................    1.77    1.74    1.72    1.69    1.66    1.64    1.61    1.76    1.71    1.67
57.0............................    1.82    1.79    1.76    1.74    1.71    1.68    1.65    1.79    1.75    1.70
57.5............................    1.86    1.83    1.81    1.78    1.75    1.73    1.70    1.82    1.78    1.73
58.0............................    1.91    1.88    1.85    1.83    1.80    1.77    1.74    1.86    1.81    1.76
58.5............................    1.95    1.92    1.90    1.87    1.84    1.82    1.79    1.89    1.84    1.79
59.0............................    2.00    1.97    1.94    1.92    1.89    1.86    1.83    1.92    1.87    1.83
59.5............................    2.04    2.01    1.99    1.96    1.93    1.91    1.88    1.95    1.90    1.86
60.0............................    2.09    2.06    2.03    2.01    1.98    1.95    1.92    1.98    1.94    1.89
60.5............................    2.13    2.10    2.08    2.05    2.02    2.00    1.97    2.02    1.97    1.92
61.0............................    2.18    2.15    2.12    2.10    2.07    2.04    2.01    2.05    2.00    1.95
61.5............................    2.22    2.20    2.17    2.14    2.11    2.09    2.06    2.08    2.03    1.98
62.0............................    2.27    2.24    2.21    2.19    2.16    2.13    2.11    2.11    2.06    2.02
62.5............................    2.31    2.29    2.26    2.23    2.20    2.18    2.15    2.14    2.10    2.05
63.0............................    2.36    2.33    2.30    2.28    2.25    2.22    2.20    2.17    2.13    2.08
63.5............................    2.40    2.38    2.35    2.32    2.29    2.27    2.24    2.21    2.16    2.11
64.0............................    2.45    2.42    2.39    2.37    2.34    2.31    2.29    2.24    2.19    2.14
64.5............................    2.49    2.47    2.44    2.41    2.38    2.36    2.33    2.27    2.22    2.18
65.0............................    2.54    2.51    2.48    2.46    2.43    2.40    2.38    2.30    2.25    2.21
65.5............................    2.58    2.56    2.53    2.50    2.47    2.45    2.42    2.33    2.29    2.24
66.0............................    2.63    2.60    2.57    2.55    2.52    2.49    2.47    2.37    2.32    2.27
66.5............................    2.67    2.65    2.62    2.59    2.57    2.54    2.51    2.40    2.35    2.30
67.0............................    2.72    2.69    2.66    2.64    2.61    2.58    2.56    2.43    2.38    2.33
67.5............................    2.76    2.74    2.71    2.68    2.66    2.63    2.60    2.46    2.41    2.37
68.0............................    2.81    2.78    2.75    2.73    2.70    2.67    2.65    2.49    2.45    2.40
68.5............................    2.85    2.83    2.80    2.77    2.75    2.72    2.69    2.52    2.48    2.43
69.0............................    2.90    2.87    2.84    2.82    2.79    2.76    2.74    2.56    2.51    2.46
69.5............................    2.94    2.92    2.89    2.86    2.84    2.81    2.78    2.59    2.54    2.49

[[Page 366]]

 
70.0............................    2.99    2.96    2.93    2.91    2.88    2.85    2.83    2.62    2.57    2.52
70.5............................    3.03    3.01    2.98    2.95    2.93    2.90    2.87    2.65    2.60    2.56
71.0............................    3.08    3.05    3.03    3.00    2.97    2.94    2.92    2.68    2.64    2.59
71.5............................    3.12    3.10    3.07    3.04    3.02    2.99    2.96    2.72    2.67    2.62
72.0............................    3.17    3.14    3.12    3.09    3.06    3.03    3.01    2.75    2.70    2.65
72.5............................    3.21    3.19    3.16    3.13    3.11    3.08    3.05    2.78    2.73    2.68
73.0............................    3.26    3.23    3.21    3.18    3.15    3.12    3.10    2.81    2.76    2.72
73.5............................    3.30    3.28    3.25    3.22    3.20    3.17    3.14    2.84    2.79    2.75
74.0............................    3.35    3.32    3.30    3.27    3.24    3.21    3.19    2.87    2.83    2.78
74.5............................    3.40    3.37    3.34    3.31    3.29    3.26    3.23    2.91    2.86    2.81
75.0............................    3.44    3.41    3.39    3.36    3.33    3.30    3.28    2.94    2.89    2.84
75.5............................    3.49    3.46    3.43    3.40    3.38    3.35    3.32    2.97    2.92    2.87
76.0............................    3.53    3.50    3.48    3.45    3.42    3.40    3.37    3.00    2.95    2.91
76.5............................    3.58    3.55    3.52    3.49    3.47    3.44    3.41    3.03    2.99    2.94
77.0............................    3.62    3.59    3.57    3.54    3.51    3.49    3.46    3.06    3.02    2.97
77.5............................    3.67    3.64    3.61    3.58    3.56    3.53    3.50    3.10    3.05    3.00
78.0............................    3.71    3.68    3.66    3.63    3.60    3.58    3.55    3.13    3.08    3.03
78.5............................    3.76    3.73    3.70    3.67    3.65    3.62    3.59    3.16    3.11    3.07
79.0............................    3.80    3.77    3.75    3.72    3.69    3.67    3.64    3.19    3.14    3.10
79.5............................    3.85    3.82    3.79    3.77    3.74    3.71    3.68    3.22    3.18    3.13
80.0............................    3.89    3.86    3.84    3.81    3.78    3.76    3.73    3.26    3.21    3.16
80.5............................    3.94    3.91    3.88    3.86    3.83    3.80    3.77    3.29    3.24    3.19
81.0............................    3.98    3.95    3.93    3.90    3.87    3.85    3.82    3.32    3.27    3.22
----------------------------------------------------------------------------------------------------------------


                                                                  Table 4--Females FEV1
                                                            [80% of Predicted; Knudson 1983]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Age
                               Ht.                               ---------------------------------------------------------------------------------------
                                                                    35      37      39      41      43      45      47      49      51      53      55
--------------------------------------------------------------------------------------------------------------------------------------------------------
52.0............................................................    1.52    1.49    1.46    1.43    1.40    1.37    1.34    1.31    1.28    1.25    1.22
52.5............................................................    1.55    1.52    1.49    1.46    1.43    1.40    1.37    1.34    1.31    1.28    1.25
53.0............................................................    1.59    1.56    1.53    1.50    1.47    1.43    1.40    1.37    1.34    1.31    1.28
53.5............................................................    1.62    1.59    1.56    1.53    1.50    1.47    1.44    1.41    1.38    1.35    1.32
54.0............................................................    1.65    1.62    1.59    1.56    1.53    1.50    1.47    1.44    1.41    1.38    1.35
54.5............................................................    1.69    1.66    1.63    1.60    1.57    1.54    1.51    1.48    1.44    1.41    1.38
55.0............................................................    1.72    1.69    1.66    1.63    1.60    1.57    1.54    1.51    1.48    1.45    1.42
55.5............................................................    1.76    1.72    1.69    1.66    1.63    1.60    1.57    1.54    1.51    1.48    1.45
56.0............................................................    1.79    1.76    1.73    1.70    1.67    1.64    1.61    1.58    1.55    1.52    1.49
56.5............................................................    1.82    1.79    1.76    1.73    1.70    1.67    1.64    1.61    1.58    1.55    1.52
57.0............................................................    1.86    1.83    1.80    1.77    1.73    1.70    1.67    1.64    1.61    1.58    1.55
57.5............................................................    1.89    1.86    1.83    1.80    1.77    1.74    1.71    1.68    1.65    1.62    1.59
58.0............................................................    1.92    1.89    1.86    1.83    1.80    1.77    1.74    1.71    1.68    1.65    1.62
58.5............................................................    1.96    1.93    1.90    1.87    1.84    1.81    1.78    1.74    1.71    1.68    1.65
59.0............................................................    1.99    1.96    1.93    1.90    1.87    1.84    1.81    1.78    1.75    1.72    1.69
59.5............................................................    2.03    1.99    1.96    1.93    1.90    1.87    1.84    1.81    1.78    1.75    1.72
60.0............................................................    2.06    2.03    2.00    1.97    1.94    1.91    1.88    1.85    1.82    1.79    1.75
60.5............................................................    2.09    2.06    2.03    2.00    1.97    1.94    1.91    1.88    1.85    1.82    1.79
61.0............................................................    2.13    2.10    2.07    2.04    2.00    1.97    1.94    1.91    1.88    1.85    1.82
61.5............................................................    2.16    2.13    2.10    2.07    2.04    2.01    1.98    1.95    1.92    1.89    1.86
62.0............................................................    2.19    2.16    2.13    2.10    2.07    2.04    2.01    1.98    1.95    1.92    1.89
62.5............................................................    2.23    2.20    2.17    2.14    2.11    2.08    2.05    2.01    1.98    1.95    1.92
63.0............................................................    2.26    2.23    2.20    2.17    2.14    2.11    2.08    2.05    2.02    1.99    1.96
63.5............................................................    2.30    2.26    2.23    2.20    2.17    2.14    2.11    2.08    2.05    2.02    1.99
64.0............................................................    2.33    2.30    2.27    2.24    2.21    2.18    2.15    2.12    2.09    2.06    2.02
64.5............................................................    2.36    2.33    2.30    2.27    2.24    2.21    2.18    2.15    2.12    2.09    2.06
65.0............................................................    2.40    2.37    2.34    2.31    2.27    2.24    2.21    2.18    2.15    2.12    2.09
65.5............................................................    2.43    2.40    2.37    2.34    2.31    2.28    2.25    2.22    2.19    2.16    2.13
66.0............................................................    2.46    2.43    2.40    2.37    2.34    2.31    2.28    2.25    2.22    2.19    2.16
66.5............................................................    2.50    2.47    2.44    2.41    2.38    2.35    2.32    2.28    2.25    2.22    2.19
67.0............................................................    2.53    2.50    2.47    2.44    2.41    2.38    2.35    2.32    2.29    2.26    2.23
67.5............................................................    2.56    2.53    2.50    2.47    2.44    2.41    2.38    2.35    2.32    2.29    2.26
68.0............................................................    2.60    2.57    2.54    2.51    2.48    2.45    2.42    2.39    2.36    2.33    2.29
68.5............................................................    2.63    2.60    2.57    2.54    2.51    2.48    2.45    2.42    2.39    2.36    2.33
69.0............................................................    2.67    2.64    2.61    2.57    2.54    2.51    2.48    2.45    2.42    2.39    2.36
69.5............................................................    2.70    2.67    2.64    2.61    2.58    2.55    2.52    2.49    2.46    2.43    2.40
70.0............................................................    2.73    2.70    2.67    2.64    2.61    2.58    2.55    2.52    2.49    2.46    2.43

[[Page 367]]

 
70.5............................................................    2.77    2.74    2.71    2.68    2.65    2.62    2.58    2.55    2.52    2.49    2.46
71.0............................................................    2.80    2.77    2.74    2.71    2.68    2.65    2.62    2.59    2.56    2.53    2.50
71.5............................................................    2.83    2.80    2.77    2.74    2.71    2.68    2.65    2.62    2.59    2.56    2.53
72.0............................................................    2.87    2.84    2.81    2.78    2.75    2.72    2.69    2.66    2.63    2.59    2.56
72.5............................................................    2.90    2.87    2.84    2.81    2.78    2.75    2.72    2.69    2.66    2.63    2.60
73.0............................................................    2.94    2.91    2.88    2.84    2.81    2.78    2.75    2.72    2.69    2.66    2.63
73.5............................................................    2.97    2.94    2.91    2.88    2.85    2.82    2.79    2.76    2.73    2.70    2.67
74.0............................................................    3.00    2.97    2.94    2.91    2.88    2.85    2.82    2.79    2.76    2.73    2.70
74.5............................................................    3.04    3.01    2.98    2.95    2.92    2.89    2.85    2.82    2.79    2.76    2.73
75.0............................................................    3.07    3.04    3.01    2.98    2.95    2.92    2.89    2.86    2.83    2.80    2.77
75.5............................................................    3.10    3.07    3.04    3.01    2.98    2.95    2.92    2.89    2.86    2.83    2.80
76.0............................................................    3.14    3.11    3.08    3.05    3.02    2.99    2.96    2.93    2.90    2.86    2.83
76.5............................................................    3.17    3.14    3.11    3.08    3.05    3.02    2.99    2.96    2.93    2.90    2.87
77.0............................................................    3.21    3.18    3.15    3.11    3.08    3.05    3.02    2.99    2.96    2.93    2.90
77.5............................................................    3.24    3.21    3.18    3.15    3.12    3.09    3.06    3.03    3.00    2.97    2.94
78.0............................................................    3.27    3.24    3.21    3.18    3.15    3.12    3.09    3.06    3.03    3.00    2.97
78.5............................................................    3.31    3.28    3.25    3.22    3.19    3.15    3.12    3.09    3.06    3.03    3.00
79.0............................................................    3.34    3.31    3.28    3.25    3.22    3.19    3.16    3.13    3.10    3.07    3.04
79.5............................................................    3.37    3.34    3.31    3.28    3.25    3.22    3.19    3.16    3.13    3.10    3.07
80.0............................................................    3.41    3.38    3.35    3.32    3.29    3.26    3.23    3.20    3.16    3.13    3.10
80.5............................................................    3.44    3.41    3.38    3.35    3.32    3.29    3.26    3.23    3.20    3.17    3.14
81.0............................................................    3.48    3.45    3.41    3.38    3.35    3.32    3.29    3.26    3.23    3.20    3.17
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                             Table 4a--Females FEV1
                                        [80% of Predicted; Knudson 1983]
----------------------------------------------------------------------------------------------------------------
                                                                        Age
               Ht.               -------------------------------------------------------------------------------
                                    57      59      61      63      65      67      69      71      73      75
----------------------------------------------------------------------------------------------------------------
52.0............................    1.18    1.15    1.12    1.09    1.06    1.03    1.00    1.38    1.32    1.25
52.5............................    1.22    1.19    1.16    1.13    1.10    1.07    1.04    1.39    1.33    1.27
53.0............................    1.25    1.22    1.19    1.16    1.13    1.10    1.07    1.41    1.34    1.28
53.5............................    1.29    1.26    1.23    1.19    1.16    1.13    1.10    1.42    1.36    1.30
54.0............................    1.32    1.29    1.26    1.23    1.20    1.17    1.14    1.44    1.37    1.31
54.5............................    1.35    1.32    1.29    1.26    1.23    1.20    1.17    1.45    1.39    1.32
55.0............................    1.39    1.36    1.33    1.30    1.27    1.24    1.20    1.47    1.40    1.34
55.5............................    1.42    1.39    1.36    1.33    1.30    1.27    1.24    1.48    1.42    1.35
56.0............................    1.45    1.42    1.39    1.36    1.33    1.30    1.27    1.50    1.43    1.37
56.5............................    1.49    1.46    1.43    1.40    1.37    1.34    1.31    1.51    1.45    1.38
57.0............................    1.52    1.49    1.46    1.43    1.40    1.37    1.34    1.52    1.46    1.40
57.5............................    1.56    1.53    1.50    1.46    1.43    1.40    1.37    1.54    1.48    1.41
58.0............................    1.59    1.56    1.53    1.50    1.47    1.44    1.41    1.55    1.49    1.43
58.5............................    1.62    1.59    1.56    1.53    1.50    1.47    1.44    1.57    1.50    1.44
59.0............................    1.66    1.63    1.60    1.57    1.54    1.51    1.47    1.58    1.52    1.46
59.5............................    1.69    1.66    1.63    1.60    1.57    1.54    1.51    1.60    1.53    1.47
60.0............................    1.72    1.69    1.66    1.63    1.60    1.57    1.54    1.61    1.55    1.48
60.5............................    1.76    1.73    1.70    1.67    1.64    1.61    1.58    1.63    1.56    1.50
61.0............................    1.79    1.76    1.73    1.70    1.67    1.64    1.61    1.64    1.58    1.51
61.5............................    1.83    1.80    1.76    1.73    1.70    1.67    1.64    1.66    1.59    1.53
62.0............................    1.86    1.83    1.80    1.77    1.74    1.71    1.68    1.67    1.61    1.54
62.5............................    1.89    1.86    1.83    1.80    1.77    1.74    1.71    1.68    1.62    1.56
63.0............................    1.93    1.90    1.87    1.84    1.81    1.77    1.74    1.70    1.64    1.57
63.5............................    1.96    1.93    1.90    1.87    1.84    1.81    1.78    1.71    1.65    1.59
64.0............................    1.99    1.96    1.93    1.90    1.87    1.84    1.81    1.73    1.66    1.60
64.5............................    2.03    2.00    1.97    1.94    1.91    1.88    1.85    1.74    1.68    1.62
65.0............................    2.06    2.03    2.00    1.97    1.94    1.91    1.88    1.76    1.69    1.63
65.5............................    2.10    2.07    2.03    2.00    1.97    1.94    1.91    1.77    1.71    1.64
66.0............................    2.13    2.10    2.07    2.04    2.01    1.98    1.95    1.79    1.72    1.66
66.5............................    2.16    2.13    2.10    2.07    2.04    2.01    1.98    1.80    1.74    1.67
67.0............................    2.20    2.17    2.14    2.11    2.08    2.04    2.01    1.82    1.75    1.69
67.5............................    2.23    2.20    2.17    2.14    2.11    2.08    2.05    1.83    1.77    1.70
68.0............................    2.26    2.23    2.20    2.17    2.14    2.11    2.08    1.84    1.78    1.72
68.5............................    2.30    2.27    2.24    2.21    2.18    2.15    2.12    1.86    1.80    1.73
69.0............................    2.33    2.30    2.27    2.24    2.21    2.18    2.15    1.87    1.81    1.75
69.5............................    2.37    2.34    2.30    2.27    2.24    2.21    2.18    1.89    1.82    1.76
70.0............................    2.40    2.37    2.34    2.31    2.28    2.25    2.22    1.90    1.84    1.78
70.5............................    2.43    2.40    2.37    2.34    2.31    2.28    2.25    1.92    1.85    1.79

[[Page 368]]

 
71.0............................    2.47    2.44    2.41    2.38    2.35    2.31    2.28    1.93    1.87    1.80
71.5............................    2.50    2.47    2.44    2.41    2.38    2.35    2.32    1.95    1.88    1.82
72.0............................    2.53    2.50    2.47    2.44    2.41    2.38    2.35    1.96    1.90    1.83
72.5............................    2.57    2.54    2.51    2.48    2.45    2.42    2.39    1.97    1.91    1.85
73.0............................    2.60    2.57    2.54    2.51    2.48    2.45    2.42    1.99    1.93    1.86
73.5............................    2.64    2.60    2.57    2.54    2.51    2.48    2.45    2.00    1.94    1.88
74.0............................    2.67    2.64    2.61    2.58    2.55    2.52    2.49    2.02    1.95    1.89
74.5............................    2.70    2.67    2.64    2.61    2.58    2.55    2.52    2.03    1.97    1.91
75.0............................    2.74    2.71    2.68    2.65    2.61    2.58    2.55    2.05    1.98    1.92
75.5............................    2.77    2.74    2.71    2.68    2.65    2.62    2.59    2.06    2.00    1.93
76.0............................    2.80    2.77    2.74    2.71    2.68    2.65    2.62    2.08    2.01    1.95
76.5............................    2.84    2.81    2.78    2.75    2.72    2.69    2.66    2.09    2.03    1.96
77.0............................    2.87    2.84    2.81    2.78    2.75    2.72    2.69    2.11    2.04    1.98
77.5............................    2.91    2.87    2.84    2.81    2.78    2.75    2.72    2.12    2.06    1.99
78.0............................    2.94    2.91    2.88    2.85    2.82    2.79    2.76    2.13    2.07    2.01
78.5............................    2.97    2.94    2.91    2.88    2.85    2.82    2.79    2.15    2.09    2.02
79.0............................    3.01    2.98    2.95    2.92    2.88    2.85    2.82    2.16    2.10    2.04
79.5............................    3.04    3.01    2.98    2.95    2.92    2.89    2.86    2.18    2.11    2.05
80.0............................    3.07    3.04    3.01    2.98    2.95    2.92    2.89    2.19    2.13    2.07
80.5............................    3.11    3.08    3.05    3.02    2.99    2.96    2.93    2.21    2.14    2.08
81.0............................    3.14    3.11    3.08    3.05    3.02    2.99    2.96    2.22    2.16    2.09
----------------------------------------------------------------------------------------------------------------


[Order No. 2213-99, 64 FR 13692, Mar. 22, 1999]

                 Appendix B to Part 79--Blood-Gas Tables

    For arterial blood-gas studies performed at test locations between 
sea level and 2,999 feet above sea level:

------------------------------------------------------------------------
            Arterial pCO2                       and arterial pO2
------------------------------------------------------------------------
25 mmHg or below.....................  80 mmHg or below.
26 mmHg..............................  79 mmHg or below.
27 mmHg..............................  78 mmHg or below.
28 mmHg..............................  77 mmHg or below.
29 mmHg..............................  76 mmHg or below.
30 mmHg..............................  75 mmHg or below.
31 mmHg..............................  74 mmHg or below.
32 mmHg..............................  73 mmHg or below.
33 mmHg..............................  72 mmHg or below.
34 mmHg..............................  71 mmHg or below.
35 mmHg..............................  70 mmHg or below.
36 mmHg..............................  69 mmHg or below.
37 mmHg..............................  68 mmHg or below.
38 mmHg..............................  67 mmHg or below.
39 mmHg..............................  66 mmHg or below.
40-49 mmHg...........................  65 mmHg or below.
Above 50 mmHg........................  Any value.
------------------------------------------------------------------------

    For arterial blood gas studies performed at test locations above 
3,000 feet above sea level:

------------------------------------------------------------------------
            Arterial pCO2                       and arterial pO2
------------------------------------------------------------------------
25 mmHg or below.....................  75 mmHg or below.
26 mmHg..............................  74 mmHg or below.
27 mmHg..............................  73 mmHg or below.
28 mmHg..............................  72 mmHg or below.
29 mmHg..............................  71 mmHg or below.
30 mmHg..............................  70 mmHg or below.
31 mmHg..............................  69 mmHg or below.
32 mmHg..............................  68 mmHg or below.
33 mmHg..............................  67 mmHg or below.
34 mmHg..............................  66 mmHg or below.
35 mmHg..............................  65 mmHg or below.
36 mmHg..............................  64 mmHg or below.
37 mmHg..............................  63 mmHg or below.
38 mmHg..............................  62 mmHg or below.
39 mmHg..............................  61 mmHg or below.
40-49 mmHg...........................  60 mmHg or below.
Above 50 mmHg........................  Any value.
------------------------------------------------------------------------

   Appendix C to Part 79--Radiation Exposure Compensation Act Offset 
                     Worksheet--Onsite Participants

--------------------------------------------------------------------------------------------------------------------------------------------------------
                 (1)                         (2)                             (3)                           (4)                             (5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year                                          Payment  X                    (Present CPI  /              Past CPI  =                       Inflated P.V.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
1960.................................    ------------  X               (----------------  /                 29.6)  =                --------------------
1961.................................    ------------  X               (----------------  /                 29.9)  =                --------------------
1962.................................    ------------  X               (----------------  /                 30.2)  =                --------------------
1963.................................    ------------  X               (----------------  /                 30.6)  =                --------------------
1964.................................    ------------  X               (----------------  /                 31.0)  =                --------------------

[[Page 369]]

 
1965.................................    ------------  X               (----------------  /                 31.5)  =                --------------------
1966.................................    ------------  X               (----------------  /                 32.4)  =                --------------------
1967.................................    ------------  X               (----------------  /                 33.4)  =                --------------------
1968.................................    ------------  X               (----------------  /                 34.8)  =                --------------------
1969.................................    ------------  X               (----------------  /                 36.7)  =                --------------------
1970.................................    ------------  X               (----------------  /                 38.8)  =                --------------------
1971.................................    ------------  X               (----------------  /                 40.5)  =                --------------------
1972.................................    ------------  X               (----------------  /                 41.8)  =                --------------------
1973.................................    ------------  X               (----------------  /                 44.4)  =                --------------------
1974.................................    ------------  X               (----------------  /                 49.3)  =                --------------------
1975.................................    ------------  X               (----------------  /                 53.8)  =                --------------------
1976.................................    ------------  X               (----------------  /                 56.9)  =                --------------------
1977.................................    ------------  X               (----------------  /                 60.6)  =                --------------------
1978.................................    ------------  X               (----------------  /                 65.2)  =                --------------------
1979.................................    ------------  X               (----------------  /                 72.6)  =                --------------------
1980.................................    ------------  X               (----------------  /                 82.4)  =                --------------------
1981.................................    ------------  X               (----------------  /                 90.9)  =                --------------------
1982.................................    ------------  X               (----------------  /                 96.5)  =                --------------------
1983.................................    ------------  X               (----------------  /                 99.6)  =                --------------------
1984.................................    ------------  X               (----------------  /                103.9)  =                --------------------
1985.................................    ------------  X               (----------------  /                107.6)  =                --------------------
1986.................................    ------------  X               (----------------  /                109.6)  =                --------------------
1987.................................    ------------  X               (----------------  /                113.6)  =                --------------------
1988.................................    ------------  X               (----------------  /                118.3)  =                --------------------
1989.................................    ------------  X               (----------------  /                124.0)  =                --------------------
1990.................................    ------------  X               (----------------  /                130.7)  =                --------------------
XXXX.................................    ------------  X               (----------------  /             --------)  =                --------------------
Total of Column (5) equals ``Actuarial present value'' of past payments........................................................     --------------------
 
Subtract total of Column (5) from $75,000 net claim owed to claimant                                                                --------------------



PART 80--FOREIGN CORRUPT PRACTICES ACT OPINION PROCEDURE--Table of Contents




Sec.
80.1  Purpose.
80.2  Submission requirements.
80.3  Transaction.
80.4  Issuer or domestic concern.
80.5  Affected parties.
80.6  General requirements.
80.7  Additional information.
80.8  Attorney General opinion.
80.9  No oral opinion.
80.10  Rebuttable presumption.
80.11  Effect of FCPA Opinion.
80.12  Accounting requirements.
80.13  Scope of FCPA Opinion.
80.14  Disclosure.
80.15  Withdrawal.
80.16  Additional requests.

    Authority: 28 U.S.C. 509, 510; 15 U.S.C. 78dd-1, 78dd-2.

    Source: Order No. 1620-92, 57 FR 39600, Sept. 1, 1992, unless 
otherwise noted.



Sec. 80.1  Purpose.

    These procedures enable issuers and domestic concerns to obtain an 
opinion of the Attorney General as to whether certain specified, 
prospective--not hypothetical--conduct conforms with the Department's 
present enforcement policy regarding the antibribery provisions of the 
Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. 78dd-1 and 
78dd-2. An opinion issued pursuant to these procedures is a Foreign 
Corrupt Practices Act opinion (hereinafter FCPA Opinion).



Sec. 80.2  Submission requirements.

    A request for an FCPA Opinion must be submitted in writing. An 
original and five copies of the request should be addressed to the 
Assistant Attorney General in charge of the Criminal Division, 
Attention: FCPA Opinion Group. The mailing address is P.O. Box 28188, 
Central Station, Washington, DC 20038. The address for hand delivery is 
room 2424, Bond Building, 1400 New York Avenue, NW., Washington, DC 
20005.



Sec. 80.3  Transaction.

    The entire transaction which is the subject of the request must be 
an actual--not a hypothetical--transaction but need not involve only 
prospective conduct. However, a request

[[Page 370]]

will not be considered unless that portion of the transaction for which 
an opinion is sought involves only prospective conduct. An executed 
contract is not a prerequisite and, in most--if not all--instances, an 
opinion request should be made prior to the requestor's commitment to 
proceed with a transaction.



Sec. 80.4  Issuer or domestic concern.

    The request must be submitted by an issuer or domestic concern 
within the meaning of 15 U.S.C. 78dd-1 and 78dd-2, respectively, that is 
also a party to the transaction which is the subject of the request.



Sec. 80.5  Affected parties.

    An FCPA Opinion shall have no application to any party which does 
not join in the request for the opinion.



Sec. 80.6  General requirements.

    Each request shall be specific and must be accompanied by all 
relevant and material information bearing on the conduct for which an 
FCPA Opinion is requested and on the circumstances of the prospective 
conduct, including background information, complete copies of all 
operative documents, and detailed statements of all collateral or oral 
understandings, if any. The requesting issuer or domestic concern is 
under an affirmative obligation to make full and true disclosure with 
respect to the conduct for which an opinion is requested. Each request 
on behalf of a requesting issuer or corporate domestic concern must be 
signed by an appropriate senior officer with operational responsibility 
for the conduct that is the subject of the request and who has been 
designated by the requestor's chief executive officer to sign the 
opinion request. In appropriate cases, the Department of Justice may 
require the chief executive officer of each requesting issuer or 
corporate domestic concern to sign the request. All requests of other 
domestic concerns must also be signed. The person signing the request 
must certify that it contains a true, correct and complete disclosure 
with respect to the proposed conduct and the circumstances of the 
conduct.



Sec. 80.7  Additional information.

    If an issuer's or domestic concern's submission does not contain all 
of the information required by Sec. 80.6, the Department of Justice may 
request whatever additional information or documents it deems necessary 
to review the matter. The Department must do so within 30 days of 
receipt of the opinion request, or, in the case of an incomplete 
response to a previous request for additional information, within 30 
days of receipt of such response. Each issuer or domestic concern 
requesting an FCPA Opinion must promptly provide the information 
requested. A request will not be deemed complete until the Department of 
Justice receives such additional information. Such additional 
information, if furnished orally, shall be promptly confirmed in 
writing, signed by the same person or officer who signed the initial 
request and certified by this person or officer to be a true, correct 
and complete disclosure of the requested information. In connection with 
any request for an FCPA Opinion, the Department of Justice may conduct 
whatever independent investigation it believes appropriate.



Sec. 80.8  Attorney General opinion.

    The Attorney General or his designee shall, within 30 days after 
receiving a request that complies with the foregoing procedure, respond 
to the request by issuing an opinion that states whether the prospective 
conduct, would, for purposes of the Department of Justice's present 
enforcement policy, violate 15 U.S.C. 78dd-1 and 78dd-2. The Department 
of Justice may also take such other positions or action as it considers 
appropriate. Should the Department request additional information, the 
Department's response shall be made within 30 days after receipt of such 
additional information.



Sec. 80.9  No oral opinion.

    No oral clearance, release or other statement purporting to limit 
the enforcement discretion of the Department of Justice may be given. 
The requesting issuer or domestic concern may rely only upon a written 
FCPA Opinion letter signed by the Attorney General or his designee.

[[Page 371]]



Sec. 80.10  Rebuttable presumption.

    In any action brought under the applicable provisions of 15 U.S.C. 
78dd-1 and 78dd-2, there shall be a rebuttable presumption that a 
requestor's conduct, which is specified in a request, and for which the 
Attorney General has issued an opinion that such conduct is in 
conformity with the Department's present enforcement policy, is in 
compliance with those provisions of the FCPA. Such a presumption may be 
rebutted by a preponderance of the evidence. In considering the 
presumption, a court, in accordance with the statute, shall weigh all 
relevant factors, including but not limited to whether information 
submitted to the Attorney General was accurate and complete and whether 
the activity was within the scope of the conduct specified in any 
request received by the Attorney General.



Sec. 80.11  Effect of FCPA Opinion.

    Except as specified in Sec. 80.10, an FCPA Opinion will not bind or 
obligate any agency other than the Department of Justice. It will not 
affect the requesting issuer's or domestic concern's obligations to any 
other agency, or under any statutory or regulatory provision other than 
those specifically cited in the particular FCPA Opinion.



Sec. 80.12  Accounting requirements.

    Neither the submission of a request for an FCPA Opinion, its 
pendency, nor the issuance of an FCPA Opinion, shall in any way alter 
the responsibility of an issuer to comply with the accounting 
requirements of 15 U.S.C. 78m(b)(2) and (3).



Sec. 80.13  Scope of FCPA Opinion.

    An FCPA Opinion will state only the Attorney General's opinion as to 
whether the prospective conduct would violate the Department's present 
enforcement policy under 15 U.S.C. 78dd-1 and 78dd-2. If the conduct for 
which an FCPA Opinion is requested is subject to approval by any other 
agency, such FCPA Opinion shall in no way be taken to indicate the 
Department of Justice's views on the legal or factual issues that may be 
raised before that agency, or in an appeal from the agency's decision.



Sec. 80.14  Disclosure.

    (a) Any document or other material which is provided to, received 
by, or prepared in the Department of Justice or any other department or 
agency of the United States in connection with a request by an issuer or 
domestic concern under the foregoing procedure shall be exempt from 
disclosure under 5 U.S.C. 552 and shall not, except with the consent of 
the issuer or domestic concern, be made publicly available, regardless 
of whether the Attorney General responds to such a request or the issuer 
or domestic concern withdraws such request before receiving a response.
    (b) Nothing contained in paragraph (a) of this section shall limit 
the Department of Justice's right to issue, at its discretion, a release 
describing the identity of the requesting issuer or domestic concern, 
the identity of the foreign country in which the proposed conduct is to 
take place, the general nature and circumstances of the proposed 
conduct, and the action taken by the Department of Justice in response 
to the FCPA Opinion request. Such release shall not disclose either the 
identity of any foreign sales agents or other types of identifying 
information. The Department of Justice shall index such releases and 
place them in a file available to the public upon request.
    (c) A requestor may request that the release not disclose 
proprietary information.



Sec. 80.15  Withdrawal.

    A request submitted under the foregoing procedure may be withdrawn 
prior to the time the Attorney General issues an opinion in response to 
such request. Any request so withdrawn shall have no force or effect. 
The Department of Justice reserves the right to retain any FCPA Opinion 
request, documents and information submitted to it under this procedure 
or otherwise and to use them for any governmental purposes, subject to 
the restrictions on disclosures in Sec. 80.14.

[[Page 372]]



Sec. 80.16  Additional requests.

    Additional requests for FCPA Opinions may be filed with the Attorney 
General under the foregoing procedure regarding other prospective 
conduct that is beyond the scope of conduct specified in previous 
requests.



PART 81--CHILD ABUSE REPORTING DESIGNATIONS AND PROCEDURES--Table of Contents




Sec.
81.1  Purpose.
81.2  Submission of reports; designation of agencies to receive reports 
          of child abuse.
81.3  Designation of Federal Bureau of Investigation.
81.4  Referral of reports where the designated agency is not a law 
          enforcement agency.
81.5  Definitions.

    Authority: 28 U.S.C. 509, 510; 42 U.S.C. 13031.

    Source: Order No. 2009-96, 61 FR 7706, Feb. 29, 1996, unless 
otherwise noted.



Sec. 81.1  Purpose.

    The regulations in this part designate the agencies that are 
authorized to receive and investigate reports of child abuse under the 
provisions of section 226 of the Victims of Child Abuse Act of 1990, 
Public Law 101-647, 104 Stat. 4806, codified at 42 U.S.C. 13031.



Sec. 81.2  Submission of reports; designation of agencies to receive reports of child abuse.

    Reports of child abuse required by 42 U.S.C. 13031 shall be made to 
the local law enforcement agency or local child protective services 
agency that has jurisdiction to investigate reports of child abuse or to 
protect child abuse victims in the land area or facility in question. 
Such agencies are hereby respectively designated as the agencies to 
receive and investigate such reports, pursuant to 42 U.S.C. 13031(d), 
with respect to federal lands and federally operated or contracted 
facilities within their respective jurisdictions, provided that such 
agencies, if non-federal, enter into formal written agreements to do so 
with the Attorney General, her delegate, or a federal agency with 
jurisdiction for the area or facility in question. If the child abuse 
reported by the covered professional pursuant to 42 U.S.C. 13031 
occurred outside the federal area or facility in question, the 
designated local law enforcement agency or local child protective 
services agency receiving the report shall immediately forward the 
matter to the appropriate authority with jurisdiction outside the 
federal area in question.



Sec. 81.3  Designation of Federal Bureau of Investigation.

    For federal lands, federally operated facilities, or federally 
contracted facilities where no agency qualifies for designation under 
Sec. 81.2, the Federal Bureau of Investigation is hereby designated as 
the agency to receive and investigate reports of child abuse made 
pursuant to 42 U.S.C. 13031 until such time as another agency qualifies 
as a designated agency under Sec. 81.2.



Sec. 81.4  Referral of reports where the designated agency is not a law enforcement agency.

    Where a report of child abuse received by a designated agency that 
is not a law enforcement agency involves allegations of sexual abuse, 
serious physical injury, or life-threatening neglect of a child, that 
agency shall immediately report such occurrence to a law enforcement 
agency with authority to take emergency action to protect the child.



Sec. 81.5  Definitions.

    Local child protective services agency means that agency of the 
federal government, of a state, of a tribe or of a local government that 
has the primary responsibility for child protection within a particular 
portion of the federal lands, a particular federally operated facility, 
or a particular federally contracted facility in which children are 
cared for or reside.
    Local law enforcement agency means that federal, state, tribal or 
local law enforcement agency that has the primary responsibility for the 
investigation of an instance of alleged child abuse occurring within a 
particular portion of the federal lands, a particular federally operated 
facility, or a particular federally contracted facility in which 
children are cared for or reside.

[[Page 373]]



PART 85--CIVIL MONETARY PENALTIES INFLATION ADJUSTMENT--Table of Contents




Sec.
85.1  In general.
85.2  Calculation of adjustment.
85.3  Adjustments to penalties.

    Authority: 5 U.S.C. 301, 28 U.S.C. 503; Pub. L. 101-410, 104 Stat. 
890, as amended by Pub. L. 104-134, 110 Stat. 1321.

    Source: Order No. 2249-99, 64 FR 47103, Aug. 30, 1999, unless 
otherwise noted.



Sec. 85.1  In general.

    (a) In accordance with the requirements of the Federal Civil 
Penalties Inflation Adjustment Act of 1990, Pub. L. 104-410, 104 Stat. 
890, as amended by the Debt Collection Improvement Act of 1996, Pub. L. 
104-134, 110 Stat. 1321, the civil monetary penalties provided by law 
within the jurisdiction of the Department of Justice and listed in 
section 85.3 are adjusted as set forth in this part, effective for 
violations occurring on or after September 29, 1999.
    (b) Reference should be made to regulations of the Immigration and 
Naturalization Service in title 8 of the Code of Federal Regulations for 
the adjustment of civil monetary penalties pertaining to immigration 
matters. In addition, adjustments to civil penalties relating to 
unauthorized employment of aliens, immigration related unfair employment 
practices, and civil document fraud are addressed in 28 CFR 68.52.



Sec. 85.2  Calculation of adjustment.

    (a) The inflation adjustments described in Sec. 85.3 were determined 
by increasing the maximum civil monetary penalty or the range of minimum 
and maximum civil monetary penalties, as applicable, for each civil 
monetary penalty assessed or enforced by the Department of Justice by 
the cost-of-living adjustment as that term is defined by the Federal 
Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410. Any 
increase so determined was rounded to the nearest--
    (1) Multiples of $10 in the case of penalties less than or equal to 
$100;
    (2) Multiples of $100 in the case of penalties greater than $100 but 
less than or equal to $1,000;
    (3) Multiples of $1000 in the case of penalties greater than $1000 
but less than or equal to $10,000;
    (4) Multiples of $5,000 in the case of penalties greater than 
$10,000 but less than or equal to $100,000;
    (5) Multiples of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (6) Multiples of $25,000 in the case of penalties greater than 
$200,000.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
the initial adjustment for each penalty is capped at 10%.



Sec. 85.3  Adjustments to penalties.

    The civil monetary penalties provided by law within the jurisdiction 
of the respective components of the Department, as set forth in 
paragraphs (a) through (d) of this section, are adjusted in accordance 
with the inflation adjustment procedures prescribed in section 5 of the 
Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, Pub. 
L. 101-410, effective on or after September 29, 1999, as follows:
    (a) Civil Division. (1) 5 U.S.C. App. 4 102(f)(6)(C)(i), Ethics in 
Government Act of 1978, knowing and willful disclosure, solicitation, or 
receipt of information with respect to blind trusts: from $10,000 to 
$11,000.
    (2) 5 U.S.C. App. 4 102(f)(6)(C)(ii), Ethics in Government Act of 
1978, negligent disclosure, solicitation, or receipt of information with 
respect to blind trusts: from $5,000 to $5,500.
    (3) 5 U.S.C. App. 4 104(a), Ethics in Government Act of 1978, 
falsification or failure to file required reports: from $10,000 to 
$11,000.
    (4) 5 U.S.C. App. 4 105(c)(2), Ethics in Government Act of 1978, 
unlawful acquisition or use of public reports: from $10,000 to $11,000.
    (5) 5 U.S.C. App. 4 504(a), Ethics Reform Act of 1989, violations of 
limitations on outside earned income and employment: from $10,000 to 
$11,000.
    (6) 12 U.S.C. 1833a(b)(1), Financial Institutions Reform, Recovery, 
and Enforcement Act of 1989, violation: from $1,000,000 to $1,100,000.
    (7) 12 U.S.C. 1833a(b)(2), Financial Institutions Reform, Recovery, 
and Enforcement Act of 1989, continuing violations (per day): minimum 
from

[[Page 374]]

$1,000,000 to $1,100,000; maximum from $5,000,000 to $5,500,000.
    (8) 22 U.S.C. 2399b(a)(3)(A), Foreign Assistance Act of 1961, 
fraudulent claim for assistance: from $2,000 to $2,200.
    (9) 31 U.S.C. 3729(a), False Claims Act, violations: minimum from 
$5,000 to $5,500; maximum from $10,000 to $11,000.
    (10) 31 U.S.C. 3802(a)(1), Program Fraud Civil Remedies Act, 
violation involving false claim: from $5,000 to $5,500.
    (11) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act, 
violation involving false statement: from $5,000 to $5,500.
    (12) 40 U.S.C. 489(b)(1), Federal Property and Administrative 
Services Act of 1949, violation involving surplus government property: 
from $2,000 to $2,200.
    (13) 41 U.S.C. 55(a)(1)(B), Anti-Kickback Act of 1986, violation 
involving kickbacks: from $10,000 to $11,000.
    (b) Civil Rights Division. (1) 18 U.S.C. 248(c)(2)(B), Freedom of 
Access to Clinic Entrances Act of 1994: nonviolent physical obstruction 
(first order) from $10,000 to $11,000; (subsequent order) unchanged at 
$15,000.
    (2) 18 U.S.C. 248(c)(2)(B), Freedom of Access to Clinic Entrances 
Act of 1994: other violations (first order) unchanged at $15,000; 
(subsequent order) from $25,000 to $27,500.
    (3) 42 U.S.C. 3614(d)(1)(C), Fair Housing Act of 1968, as amended in 
1988: pattern or practice violation (first order) from $50,000 to 
$55,000; (subsequent order) from $100,000 to $110,000.
    (c) Criminal Division. 18 U.S.C. 216(b), Ethics Reform Act of 1989, 
violation: from $50,000 to $55,000.
    (d) Drug Enforcement Administration. 21 U.S.C. 961(1), Controlled 
Substances Import Export Act, transshipment and in-transit shipment of 
controlled substances: from $25,000 to $27,500.



PART 90--VIOLENCE AGAINST WOMEN--Table of Contents




                      Subpart A--General Provisions

Sec.
90.1  General.
90.2  Definitions.

   Subpart B--The STOP (Services  Training  Officers  Prosecutors) 
              Violence Against Women Formula Grant Program

90.10  Description of STOP (Services  Training  Officers 
           Prosecutors) Violence Against Women Formula Grant 
          Program.
90.11  Program criteria.
90.12  Eligible purposes.
90.13  Eligibility.
90.14  Forensic medical examination payment requirement.
90.15  Filing costs for criminal charges.
90.16  Availability and allocation of funds.
90.17  Matching requirements.
90.18  Non-supplantation.
90.19  State office.
90.20  Application content.
90.21  Evaluation.
90.22  Review of State applications.
90.23  State implementation plan.
90.24  Grantee reporting.

       Subpart C--Indian Tribal Governments Discretionary Program

90.50  Indian tribal governments discretionary program.
90.51  Program criteria for Indian tribal government discretionary 
          grants.
90.52  Eligible purposes.
90.53  Eligibility of Indian tribal governments.
90.54  Allocation of funds.
90.55  Matching requirements.
90.56  Non-supplantation.
90.57  Application content.
90.58  Evaluation.
90.59  Grantee reporting.

          Subpart D--Arrest Policies in Domestic Violence Cases

90.60  Scope.
90.61  Definitions.
90.62  Purposes.
90.63  Eligibility.
90.64  Application content.
90.65  Evaluation.
90.66  Review of applications.
90.67  Grantee reporting.

  Subpart E--Grants to Combat Violent Crimes Against Women on Campuses

90.100  What is the scope of the grant program?
90.101  What definitions apply for the grant program?
90.102  What are the purposes of the grant program?
90.103  What are the eligibility requirements for the grant program?
90.104  What must the grant program application contain?

[[Page 375]]

90.105  What are the review criteria for grant program applications?
90.106  What are the grantee reporting requirements for the grant 
          program?

    Authority: 42 U.S.C. 3711 et seq.; Sec. 826, part E, title VIII, 
Pub. L. 105-244, 112 Stat. 1815.

    Source: 60 FR 19477, Apr. 18, 1995, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 90.1  General.

    (a) This part implements certain provisions of the Violence Against 
Women Act (VAWA), which was enacted by title IV of the Violent Crime 
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322 (Sept. 13, 
1994).
    (b) Subpart B of this part defines program eligibility criteria and 
sets forth requirements for application for and administration of 
formula grants to States to combat violent crimes against women. This 
Program under the VAWA was enacted as a new ``part T'' of title I of the 
Omnibus Crime Control and Safe Streets Act of 1968 (the Omnibus Act), 
codified at 42 U.S.C. 3796gg through 3796gg-5. Offices and agencies of 
State government, units of local government, Indian tribal governments, 
and nonprofit, nongovernmental victim services programs are eligible to 
apply for subgrants from this Program.
    (c) Indian tribal governments are eligible to receive assistance as 
part of the State program pursuant to subpart B of this part. In 
addition, Indian tribal governments may apply directly for discretionary 
grants under subpart C of this part.



Sec. 90.2  Definitions.

    (a) Domestic violence. (1) As used in this part, domestic violence 
includes felony or misdemeanor crimes of violence (including threats or 
attempts) committed:
    (i) By a current or former spouse of the victim;
    (ii) By a person with whom the victim shares a child in common;
    (iii) By a person who is co-habitating with or has co-habitated with 
the victim as a spouse;
    (iv) By a person similarly situated to a spouse of the victim under 
domestic or family violence laws of the jurisdiction receiving grant 
monies; or
    (v) By any other adult person against a victim who is protected from 
that person's acts under the domestic or family violence laws of the 
jurisdiction receiving grant monies. Section 2003(1).
    (2) For the purposes of this Program, domestic violence also 
includes any crime of violence considered to be an act of domestic 
violence according to State law.
    (b) Forensic medical examination. The term forensic medical 
examination means an examination provided to a sexual assault victim by 
medical personnel trained to gather evidence of a sexual assault in a 
manner suitable for use in a court of law.
    (1) The examination should include at a minimum:
    (i) Examination of physical trauma;
    (ii) Determination of penetration or force;
    (iii) Patient interview; and
    (iv) Collection and evaluation of evidence.
    (2) The inclusion of additional procedures (e.g., testing for 
sexually transmitted diseases) to obtain evidence may be determined by 
the State, Indian tribal government, or unit of local government in 
accordance with its current laws, policies, and practices.
    (c) Indian tribe. The term Indian Tribe means a tribe, band, pueblo, 
nation, or other organized group or community of Indians, including any 
Alaska Native village or regional or village corporation (as defined in, 
or established pursuant to, the Alaska Native Claims Settlement Act (43 
U.S.C. 1601 et seq.)), that is recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians. Section 2003(3).
    (d) Law enforcement. The term law enforcement means a public agency 
charged with policing functions, including any of its component bureaus 
(such as governmental victim services programs). Section 2003(4).
    (e) Prosecution. For the purposes of this Program, the term 
prosecution means any public office or agency charged with direct 
responsibility for prosecuting criminal offenders, including such 
office's or agency's component

[[Page 376]]

departments or bureaus (such as governmental victims services programs). 
Prosecution support services, such as overseeing or participating in 
Statewide or multi-jurisdictional domestic violence task forces, 
conducting training for State and local prosecutors or enforcing victim 
compensation and domestic violence-related restraining orders shall be 
considered direct responsibility for purposes of this program. Section 
2003(5).
    (f) Sexual assault. The term sexual assault means any conduct 
proscribed by chapter 109A of title 18, United States Code, and includes 
both assaults committed by offenders who are strangers to the victim and 
assaults committed by offenders who are known or related by blood or 
marriage to the victim. Section 2003(6).
    (g) State. The term State means any State of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, American Samoa, Guam, and the Northern Mariana Islands.
    (h) Unit of local government. For the purposes of subpart B of this 
part, the term unit of local government means any city, county, 
township, town, borough, parish, village, or other general purpose 
political subdivision of a State, or Indian tribe which performs law 
enforcement functions as determined by the Secretary of Interior, or for 
the purpose of assistance eligibility, any agency of the District of 
Columbia government or the United States Government performing law 
enforcement functions in and for the District of Columbia and the Trust 
Territory of the Pacific Islands.
    (i) Victim services. The term victim services means a nonprofit, 
nongovernmental organization, that assist victims of domestic violence 
and/or sexual assault victims. Included in this definition are rape 
crisis centers, battered women's shelters, and other sexual assault or 
domestic violence programs, such as nonprofit, nongovernmental 
organizations assisting domestic violence or sexual assault victims 
through the legal process. (Section 2003(8).)
    (1) For the purposes of this Program, funding may include support 
for lawyer and nonlawyer advocates, including specialized domestic 
violence court advocates. Legal or defense services for perpetrators of 
violence against women may not be supported with grant funds.
    (2) The definition also encompasses Indian victim assistance 
programs and Statewide domestic violence and sexual assault coalitions 
to the extent they provide direct services to domestic violence and 
sexual assault victims.
    (3) Governmental victim services programs attached to a law 
enforcement agency or a prosecutor's office may apply for the portions 
of the State grant designated for law enforcement and prosecution. 
Governmental victim services programs contracting with nonprofit 
organizations (e.g., a county nonprofit shelter) are eligible to apply 
for the portion of the State grant designated for nonprofit, 
nongovernmental victim services. Governmental victim services programs 
that are not connected to a law enforcement agency or a prosecutor's 
office and are not considered nonprofit organizations may apply for 
funding through the remaining portion of the State grant that is not 
designated for a specific program area.



   Subpart B--The STOP (Services  Training  Officers  Prosecutors) 
              Violence Against Women Formula Grant Program



Sec. 90.10  Description of STOP (Services  Training  Officers  Prosecutors) Violence Against Women Formula Grant Program.

    It is the purpose of this Program to assist States, Indian tribal 
governments, and units of local government to develop and strengthen 
effective law enforcement and prosecution strategies to combat violent 
crimes against women, and to develop and strengthen victim services in 
cases involving violent crimes against women. Section 2001(a).



Sec. 90.11  Program criteria.

    (a) The Assistant Attorney General for the Office of Justice 
Programs is authorized to make grants to the States, for use by States, 
Indian tribal governments, units of local government and nonprofit, 
nongovernmental victim services programs for the purpose of developing 
and strengthening

[[Page 377]]

effective law enforcement and prosecution strategies to combat violent 
crimes against women, and to develop and strengthen victim services in 
cases involving violent crimes against women.
    (b) Grantees and subgrantees shall develop a plan for implementation 
and shall consult and coordinate with nonprofit, nongovernmental victim 
services programs, including sexual assault and domestic violence victim 
services programs. Section 2002(c)(2). The goal of the planning process 
is the enhanced coordination and integration of law enforcement, 
prosecution, courts, probation and parole agencies, and victim services 
in the prevention, identification, and response to cases involving 
violence against women. States and localities are encouraged to include 
Indian tribal governments in developing their plans. States and 
localities should, therefore, consider the needs of Indian tribal 
governments in developing their law enforcement, prosecution and victims 
services in cases involving violence against women. Indian tribal 
governments may also be considered subgrantees of the State. Section 
2002(a).



Sec. 90.12  Eligible purposes.

    (a) In general. Grants under this Program shall provide personnel, 
training, technical assistance, evaluation, data collection and 
equipment for the more widespread apprehension, prosecution, and 
adjudication of persons committing violent crimes against women.
    (b) Eligible purposes. Section 2001(b). Grants under this Program 
may be used for the following purposes:
    (1) Training law enforcement officers and prosecutors to more 
effectively identify and respond to violent crimes against women, 
including the crimes of sexual assault and domestic violence;
    (2) Developing, training, or expanding units of law enforcement 
officers and prosecutors specifically targeting violent crimes against 
women, including the crimes of sexual assault and domestic violence;
    (3) Developing and implementing more effective police and 
prosecution policies, protocols, orders, and services specifically 
devoted to preventing, identifying, and responding to violent crimes 
against women, including the crimes of sexual assault and domestic 
violence;
    (4) Developing, installing, or expanding data collection and 
communication systems, including computerized systems, linking police, 
prosecutors, and courts or for the purpose of identifying and tracking 
arrests, protection orders, violations of protection orders, 
prosecutions, and convictions for violent crimes against women, 
including the crimes of sexual assault and domestic violence;
    (5) Developing, enlarging, or strengthening victim services 
programs, including sexual assault and domestic violence programs; 
developing or improving delivery of victim services to racial, cultural, 
ethnic, and language minorities; providing specialized domestic violence 
court advocates in courts where a significant number of protection 
orders are granted; and increasing reporting and reducing attrition 
rates for cases involving violent crimes against women, including crimes 
of sexual assault and domestic violence;
    (6) Developing, enlarging, or strengthening programs addressing 
stalking; and
    (7) Developing, enlarging, or strengthening programs addressing the 
needs and circumstances of Indian tribes in dealing with violent crimes 
against women, including the crimes of sexual assault and domestic 
violence.



Sec. 90.13  Eligibility.

    (a) All States are eligible to apply for, and to receive, grants to 
combat violent crimes against women under this Program. Indian tribal 
governments, units of local government, and nonprofit, nongovernmental 
victim service programs may receive subgrants from the States under this 
Program.
    (b) For the purpose of this subpart B, American Samoa and the 
Commonwealth of the Northern Mariana Islands shall be considered as one 
State and, for these purposes, 67% of the amounts allocated shall be 
allocated to American Samoa, and 33% to the Commonwealth of the Northern 
Mariana Islands.

[[Page 378]]



Sec. 90.14  Forensic medical examination payment requirement.

    (a) For the purpose of this subpart B, a State, Indian tribal 
government or unit of local government shall not be entitled to funds 
under this Program unless the State, Indian tribal government, unit of 
local government, or another governmental entity incurs the full out-of-
pocket costs of forensic medical examinations for victims of sexual 
assault. Full out-of-pocket costs means any expense that may be charged 
to a victim in connection with a forensic medical examination for the 
purpose of gathering evidence of a sexual assault (e.g., the full cost 
of the examination, an insurance deductible, or a fee established by the 
facility conducting the examination). Section 2005(a)(1). For 
individuals covered by insurance, full out-of-pocket costs means any 
costs that the insurer does not pay.
    (b) A State, Indian tribal government, or unit of local government 
shall be deemed to incur the full out-of-pocket costs of forensic 
medical examinations for victims of sexual assault if that governmental 
entity or some other:
    (1) Provides such examinations to victims free of charge;
    (2) Arranges for victims to obtain such examinations free of charge; 
or
    (3) Reimburses victims for the cost of such examinations if:
    (i) The reimbursement covers the full out-of-pocket costs of such 
examinations, without any deductible requirement and/or maximum limit on 
the amount of reimbursement;
    (ii) The governmental entity permits victims to apply for 
reimbursement for not less than one year from the date of the 
examination;
    (iii) The governmental entity provides reimbursement to the victim 
not later than ninety days after written notification of the victim's 
expense; and
    (iv) The governmental entity provides information at the time of the 
examination to all victims, including victims with limited or no English 
proficiency, regarding how to obtain reimbursement. Section 2005(b).
    (c) Coverage of the cost of additional procedures (e.g., testing for 
sexually transmitted diseases) may be determined by the State or 
governmental entity responsible for paying the costs; however, formula 
grant funds cannot be used to pay for the cost of the forensic medical 
examination or any additional procedures.



Sec. 90.15  Filing costs for criminal charges.

    (a) A State shall not be entitled to funds under this subpart B 
unless it:
    (1) Certifies that its laws, policies, and practices do not require, 
in connection with the prosecution of any misdemeanor or felony domestic 
violence offense, that the victim bear the costs associated with the 
filing of criminal charges against the domestic violence offender, or 
the costs associated with the issuance or service of a warrant, 
protection order, and witness subpoena (arising from the incident that 
is the subject of the arrest or criminal prosecution); or
    (2) Assures that its laws, policies and practices will be in 
compliance with the requirements of paragraph (a)(1) of this section by 
the date on which the next session of the State legislature ends, or by 
September 13, 1996, whichever is later.
    (b) An Indian tribal government or unit of local government shall 
not be eligible for subgrants from the State unless it complies with the 
requirements of paragraph (a) of this section with respect to its laws, 
policies and practices.
    (c) If a State does not come into compliance within the time allowed 
in paragraph (a)(2) of this section, the State will not receive its 
share of the grant money whether or not individual units of local 
government are in compliance.



Sec. 90.16  Availability and allocation of funds.

    (a) Section 2002(b) provides for the allocation of the amounts 
appropriated for this Program as follows:
    (1) Allocation to Indian tribal governments. Of the total amounts 
appropriated for this Program, 4% shall be available for grants directly 
to Indian tribal governments. This Program is addressed in subpart C of 
this part.

[[Page 379]]

    (2) Allocation to States. Of the total amounts appropriated for this 
Program in any fiscal year, after setting aside the portion allocated 
for discretionary grants to Indian tribal governments covered in 
paragraph (a) (1) of this section, and setting aside a portion for 
evaluation, training and technical assistance, a base amount shall be 
allocated for grants to eligible applicants in each State. After these 
allocations are made, the remaining funds will be allocated to each 
State on the basis of the State's relative share of total U.S. 
population (not including Indian tribal populations). For purposes of 
determining the distribution of the remaining funds, the most accurate 
and complete data compiled by the U.S. Bureau of the Census shall be 
used.
    (3) Allocation of funds within the State. Funds granted to qualified 
States are to be further subgranted by the State to agencies, offices, 
and programs including, but not limited to State agencies and offices; 
public or private nonprofit organizations; units of local government; 
Indian tribal governments; nonprofit, nongovernmental victim services 
programs; and legal services programs for victims to carry out programs 
and projects specified in Sec. 90.12.
    (b) In distributing funds received under this part, States must:
    (1) Give priority to areas of varying geographic size with the 
greatest showing of need. In assessing need, States must consider the 
range and availability of existing domestic violence and sexual assault 
programs in the population and geographic area to be served in relation 
to the availability of such programs in other such populations and 
geographic areas, including Indian reservations. Applications submitted 
by a State for program funding must include a proposal which delineates 
the method by which States will distribute funds within the State to 
assure compliance with this requirement on an annual or multi-year 
basis. Section 2002(e)(2)(A).
    (2) Take into consideration the population of the geographic area to 
be served when determining subgrants. Section 2002(e)(2)(B). 
Applications submitted by a State for program funding must include a 
proposal which delineates the method by which States will distribute 
funds within the State to assure compliance with this requirement on an 
annual or multi-year basis.
    (3) Equitably distribute monies on a geographic basis, including 
non-urban and rural areas of various geographic sizes. Section 
2002(e)(2)(C). Applications submitted by the State for program funding 
must include a proposal which delineates the method by which States will 
distribute funds within the State to assure compliance with this 
requirement on an annual or multi-year basis.
    (4) In disbursing monies, States must ensure that the needs of 
previously underserved populations are identified and addressed in its 
funding plan. Section 2002(e)(2)(D). For the purposes of this Program, 
underserved populations include, but are not limited to, populations 
underserved because of geographic location (such as rural isolation), 
underserved racial or ethnic populations, including Indian populations, 
and populations underserved because of special needs such as language 
barriers or physical disabilities. Section 2003(7). Each State has 
flexibility to determine its basis for identifying underserved 
populations, which may include public hearings, needs assessments, task 
forces, and U.S. Bureau of Census data. Applications submitted by the 
State for program funding must include a proposal which delineates the 
method by which States will distribute funds within the State to assure 
compliance with this requirement on an annual or multi-year basis.
    (c) States must certify that a minimum of 25% of each year's grant 
award (75% total) will be allocated, without duplication, to each of the 
following areas: prosecution, law enforcement, and victim services. 
Section 2002(c)(3). This requirement applies to States and does not 
apply to individual subrecipients. This requirement applies to Indian 
tribal governments to the extent they have law enforcement or 
prosecution.



Sec. 90.17  Matching requirements.

    (a) The Federal share of a subgrant made under the State formula 
program may not be expended for more than 75% of the total costs of the 
individual

[[Page 380]]

projects described in a State's implementation plan. Section 2002(f). A 
25% non-Federal match is required. This 25% match may be cash or in-kind 
services. States are expected to submit a narrative that identifies the 
source of the match.
    (b) In-kind match may include donations of expendable equipment, 
office supplies, workshop or classroom materials, work space, or the 
monetary value of time contributed by professional and technical 
personnel and other skilled and unskilled labor if the services they 
provide are an integral and necessary part of a funded project. The 
value placed on loaned or donated equipment may not exceed its fair 
rental value. The value placed on donated services must be consistent 
with the rate of compensation paid for similar work in the organization 
or the labor market. Fringe benefits may be included in the valuation. 
Volunteer services must be documented and, to the extent feasible, 
supported by the same methods used by the recipient organization for its 
own employees. The value of donated space may not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately owned building in the 
same locality. The basis for determining the value of personal services, 
materials, equipment, and space must be documented.
    (c) The match expenditures must be committed for each funded project 
and cannot be derived from other Federal funds. Nonprofit, 
nongovernmental victim services programs funded through subgrants are 
exempt from the matching requirement; all other subgrantees must provide 
a 25% match.
    (d) Indian tribes, who are subgrantees of a State under this 
Program, may meet the 25% matching requirement for programs under this 
subpart B by using funds appropriated by Congress for the activities of 
any agency of an Indian tribal government or for the activities of the 
Bureau of Indian Affairs performing law enforcement functions on any 
Indian lands.
    (e) All funds designated as match are restricted to the same uses as 
the Violence Against Women Program funds and must be expended within the 
grant period. The State must ensure that match is identified in a manner 
that guarantees its accountability during an audit.



Sec. 90.18  Non-supplantation.

    Federal funds received under this part shall be used to supplement, 
not supplant non-Federal funds that would otherwise be available for 
expenditure on activities described in this part. Monies disbursed under 
this Program must be used to fund new projects, or expand or enhance 
existing projects. The VAWA funds cannot be used to supplant or replace 
existing funds already allocated to funding programs. Grant funds may 
not be used to replace State or local funds (or, where applicable, funds 
provided by the Bureau of Indian Affairs) that would, in the absence of 
Federal aid, be available or forthcoming for programs to combat violence 
against women. This requirement applies only to State and local public 
agencies. Section 2002(c)(4).



Sec. 90.19  State office.

    (a) Statewide plan and application. The chief executive of each 
participating State shall designate a State office for the purposes of:
    (1) Certifying qualifications for funding under this subpart B;
    (2) Developing a Statewide plan for implementation of the grants to 
combat violence against women in consultation and coordination with 
nonprofit, nongovernmental victim services programs, including sexual 
assault and domestic violence service programs; and
    (3) Preparing an application to obtain funds under this subpart B.
    (b) Administration and fund disbursement. In addition to the duties 
specified by paragraph (a) of this section, the office shall:
    (1) Administer funds received under this subpart B, including 
receipt, review, processing, monitoring, progress and financial report 
review, technical assistance, grant adjustments, accounting, auditing 
and fund disbursements; and
    (2) Coordinate the disbursement of funds provided under this part 
with other State agencies receiving Federal, State, or local funds for 
domestic or

[[Page 381]]

family violence and sexual assault prosecution, prevention, treatment, 
education, and research activities and programs.



Sec. 90.20  Application content.

    (a) Format. Applications from the States for the STOP Violence 
Against Women Formula Grant Program must be submitted on Standard Form 
424, Application for Federal Assistance. The Office of Justice Programs 
will request the Governor of each State to identify which State agency 
should receive the Application Kit. The Application Kit will include a 
Standard Form 424, an Application for Federal Assistance, a list of 
assurances to which the applicant must agree, and additional guidance on 
how to prepare and submit an application for grants under this subpart.
    (b) Requirements. Applicants in their applications shall at the 
minimum:
    (1) Include documentation from nonprofit, nongovernmental victim 
services programs describing their participation in developing the plan 
as provided in Sec. 90.19(a);
    (2) Include documentation from prosecution, law enforcement, and 
victim services programs to be assisted, demonstrating the need for 
grant funds, the intended use of the grant funds, the expected results 
from the use of grant funds, and demographic characteristics of the 
populations to be served, including age, marital status, disability, 
race, ethnicity and linguistic background. Section 2002(d)(1);
    (3) Certify compliance with the requirements for forensic medical 
examination payments as provided in Sec. 90.14(a); and
    (4) Certify compliance with the requirements for filing and service 
costs for domestic violence cases as provided in Sec. 90.15
    (c) Certifications. (1) As required by section 2002(c) each State 
must certify in its application that it has met the requirements of this 
subpart regarding the use of funds for eligible purposes (Sec. 90.12); 
allocation of funds for prosecution, law enforcement, and victims 
services (Sec. 90.16(c)); non-supplantation (Sec. 90.18); and the 
development of a Statewide plan and consultation with victim services 
programs (Sec. 90.19(a)(2)).
    (2) Each State must certify that all the information contained in 
the application is correct, that all submissions will be treated as a 
material representation of fact upon which reliance will be placed, that 
any false or incomplete representation may result in suspension or 
termination of funding, recovery of funds provided, and civil and/or 
criminal sanctions.



Sec. 90.21  Evaluation.

    (a) The National Institute of Justice will conduct an evaluation of 
these programs. A portion of the overall funds authorized under this 
grant Program will be set aside for this purpose. Recipients of funds 
under this subpart must agree to cooperate with Federally-sponsored 
evaluations of their projects.
    (b) Recipients of program funds are strongly encouraged to develop a 
local evaluation strategy to assess the impact and effectiveness of the 
program funded under this subpart. Applicants should consider entering 
into partnerships with research organizations that are submitting 
simultaneous grant applications to the National Institute of Justice for 
this purpose.



Sec. 90.22  Review of State applications.

    (a) Review criteria. The provisions of part T of the Omnibus Act and 
of these regulations provide the basis for review and approval or 
disapproval of State applications and amendments in whole or in part.
    (b) Intergovernmental review. This Program is covered by Executive 
Order 12372 (Intergovernmental Review of Federal Programs) and 
implementing regulations at 28 CFR part 30. A copy of the application 
submitted to the Office of Justice Programs should also be submitted at 
the same time to the State's Single Point of Contact, if there is a 
Single Point of Contact.
    (c) Written notification and reasons for disapproval. The Office of 
Justice Programs shall approve or disapprove applications within sixty 
days of official receipt and shall notify the applicant in writing of 
the specific reasons for the disapproval of the application in whole or 
in part. Section 2002(e)(1).

[[Page 382]]



Sec. 90.23  State implementation plan.

    (a) Each State must submit a plan describing its identified goals 
and how the funds will be used to accomplish those goals. States may use 
grant funds to accomplish any of the seven identified purposes of the 
Violence Against Women Act.
    (b) The implementation plan should describe how the State, in 
disbursing monies, will:
    (1) Give priority to areas of varying geographic size with the 
greatest showing of need based on the availability of existing domestic 
violence and sexual assault programs in the population and geographic 
area to be served in relation to the availability of such programs in 
other such populations and geographic areas;
    (2) Determine the amount of subgrants based on the population and 
geographic area to be served;
    (3) Equitably distribute monies on a geographic basis including 
nonurban and rural areas of various geographic sizes; and
    (4) Recognize and address the needs of underserved populations. 
State plans may include but are not required to submit information on 
specific projects.
    (c) State plans will be due 120 days after the date of the award.



Sec. 90.24  Grantee reporting.

    (a) Upon completion of the grant period under this subpart, a State 
shall file a performance report with the Assistant Attorney General for 
the Office of Justice Programs explaining the activities carried out, 
including an assessment of the effectiveness of those activities in 
achieving the purposes of this part.
    (b) A section of the performance report shall be completed by each 
grantee and subgrantee that performed the direct services contemplated 
in the application, certifying performance of direct services under the 
grant. The grantee is responsible for collecting demographics about the 
victims served and including this information in the Annual Performance 
Report. In addition, the State should assess whether or not annual goals 
and objectives were achieved and provide a progress report on Statewide 
coordination efforts. Section 2002(h)(2).
    (c) The Assistant Attorney General shall suspend funding for an 
approved application if:
    (1) An applicant fails to submit an annual performance report;
    (2) Funds are expended for purposes other than those described in 
this subchapter; or
    (3) A report under this section or accompanying assessments 
demonstrate to the Assistant Attorney General that the program is 
ineffective or financially unsound.



       Subpart C--Indian Tribal Governments Discretionary Program



Sec. 90.50  Indian tribal governments discretionary program.

    (a) Indian tribal governments are eligible to receive assistance as 
part of the State program pursuant to subpart B of this part. In 
addition, Indian tribal governments may apply directly to the Office of 
Justice Programs for discretionary grants under this subpart, based on 
section 2002(b)(1).
    (b) Indian tribal governments under the Violence Against Women Act 
do not need to have law enforcement authority. Thus, the requirements 
applicable to State formula grants under subpart B that at least 25% of 
the total grant award be allocated to law enforcement and 25% to 
prosecution, are not applicable to Indian tribal governments which do 
not have law enforcement authority.



Sec. 90.51  Program criteria for Indian tribal government discretionary grants.

    (a) The Assistant Attorney General for the Office of Justice 
Programs is authorized to make grants to Indian tribal governments for 
the purpose of developing and strengthening effective law enforcement 
and prosecution strategies to combat violent crimes against women, and 
to develop and strengthen victim services in cases involving violent 
crimes against women.
    (b) Grantees shall develop plans for implementation and shall 
consult and coordinate with, to the extent that they exist, tribal law 
enforcement; prosecutors; courts; and nonprofit,

[[Page 383]]

nongovernmental victim services programs, including sexual assault and 
domestic violence victim services programs. Indian tribal government 
applications must include documentation from nonprofit, nongovernmental 
victim services programs, if they exist, or from women in the community 
to be served describing their participation in developing the plan. The 
goal of the planning process should be to achieve better coordination 
and integration of law enforcement, prosecution, courts, probation, and 
victim services--the entire tribal justice system--in the prevention, 
identification, and response to cases involving violence against women.



Sec. 90.52  Eligible purposes.

    (a) Grants under this Program may provide personnel, training, 
technical assistance, evaluation, data collection and equipment for the 
more widespread apprehension, prosecution, and adjudication of persons 
committing violent crimes against women.
    (b) Grants may be used, by Indian tribal governments, for the 
following purposes (section 2001(b)):
    (1) Training law enforcement officers and prosecutors to identify 
and respond more effectively to violent crimes against women, including 
the crimes of sexual assault and domestic violence;
    (2) Developing, training, or expanding units of law enforcement 
officers and prosecutors specifically targeting violent crimes against 
women, including the crimes of sexual assault and domestic violence;
    (3) Developing and implementing more effective police and 
prosecution policies, protocols, orders, and services specifically 
devoted to preventing, identifying, and responding to violent crimes 
against women, including the crimes of sexual assault and domestic 
violence;
    (4) Developing, installing, or expanding data collection and 
communication systems, including computerized systems, linking police, 
prosecutors, and courts or for the purpose of identifying and tracking 
arrests, protection orders, violations of protection orders, 
prosecutions, and convictions for violent crimes against women, 
including the crimes of sexual assault and domestic violence;
    (5) Developing, enlarging, or strengthening victim services 
programs, including sexual assault and domestic violence programs; 
providing specialized domestic violence court advocates in courts where 
a significant number of protection orders are granted; and increasing 
reporting and reducing attrition rates for cases involving violent 
crimes against women, including crimes of sexual assault and domestic 
violence; and
    (6) Developing, enlarging, or strengthening programs addressing 
stalking.



Sec. 90.53  Eligibility of Indian tribal governments.

    (a) General. Indian tribes as defined by Sec. 90.2 of this part 
shall be eligible for grants under this subpart.
    (b) Forensic medical examination payment requirement. (1) An Indian 
tribal government shall not be entitled to funds under this Program 
unless the Indian tribal government (or other governmental entity) 
incurs the full out-of-pocket costs of forensic medical examinations for 
victims of sexual assault.
    (2) An Indian tribal government shall be deemed to incur the full 
out-of-pocket costs of forensic medical examinations for victims of 
sexual assault if, where applicable, it meets the requirements of 
Sec. 90.14(b) or establishes that another governmental entity is 
responsible for providing the services or reimbursements meeting the 
requirements of Sec. 90.14(b).
    (c) Filing costs for criminal charges requirement. An Indian tribal 
government shall not be entitled to funds under this part unless the 
Indian tribal government either
    (1) Certifies that its laws, policies, and practices do not require 
the victim to bear the following costs in connection with the 
prosecution of any misdemeanor or felony domestic violence offense:
    (i) The cost associated with filing criminal charges against a 
domestic violence offender, or
    (ii) The costs associated with issuing or serving a warrant, 
protection order and/or witness subpoena arising from

[[Page 384]]

the incident that is the subject of the arrest or criminal prosecution, 
or
    (2) Assures that its laws, policies and practices will be in 
compliance with these requirements by September 13, 1996. (Section 
2006.)



Sec. 90.54  Allocation of funds.

    (a) 4% of the total amounts appropriated for this Program under 
section 2002(b) shall be available for grants directly to Indian tribal 
governments.
    (b) Indian tribal governments may make individual applications, or 
apply as a consortium.
    (c) Funding limits the number of awards. The selection process will 
be sensitive to the differences among tribal governments and will take 
into account the applicants' varying needs in addressing violence 
against women.



Sec. 90.55  Matching requirements.

    (a) A grant made to an Indian tribal government under this subpart C 
may not be expended for more than 75% of the total costs of the 
individual projects described in the application. Section 2002(g). A 25% 
non-Federal match is required. This 25% match may be cash or in-kind 
services. Applicants are expected to submit a narrative that identifies 
the source of the match.
    (b) In-kind match may include donations of expendable equipment, 
office supplies, workshop or classroom materials, work space, or the 
monetary value of time contributed by professional and technical 
personnel and other skilled and unskilled labor if the services they 
provide are an integral and necessary part of a funded project. The 
value placed on loaned or donated equipment may not exceed its fair 
rental value. The value placed on donated services must be consistent 
with the rate of compensation paid for similar work in the organization 
or the labor market. Fringe benefits may be included in the valuation. 
Volunteer services must be documented and, to the extent feasible, 
supported by the same methods used by the recipient organization for its 
own employees. The value of donated space may not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately owned building in the 
same locality. The basis for determining the value of personal services, 
materials, equipment, and space must be documented.
    (c) The match expenditures must be committed for each funded project 
and may be derived from funds appropriated by the Congress for the 
activities of any agency of an Indian tribal government or the Bureau of 
Indian Affairs performing law enforcement functions on any Indian lands. 
Nonprofit, nongovernmental victim services programs funded through 
subgrants are exempt from the matching requirement; all other 
subgrantees must provide a 25% match and reflect how the match will be 
used.
    (d) All funds designated as match are restricted to the same uses as 
the Violence Against Women Program funds and must be expended within the 
grant period. The applicant must ensure that match is identified in a 
manner that guarantees its accountability during an audit.



Sec. 90.56  Non-supplantation.

    Federal funds received under this part shall be used to supplement, 
not supplant funds that would otherwise be available to State and local 
public agencies for expenditure on activities described in this part.



Sec. 90.57  Application content.

    (a) Format. Applications from the Indian tribal groups for the 
Indian Tribal Governments Discretionary Grants Program must, under this 
subpart, be submitted on Standard Form 424, Application for Federal 
Assistance, at a time specified by the Office of Justice Programs.
    (b) Programs. (1) Applications must set forth programs and projects 
for a one year period which meet the purposes and criteria of the grant 
program set out in section 2001(b) and Sec. 90.12.
    (2) Plans should be developed by consulting with tribal law 
enforcement, prosecutors, courts, and victim services, to the extent 
that they exist, and women in the community to be served. Applicants are 
also encouraged to integrate into their plans tribal methods of 
addressing violent crimes against women. Additionally, tribes may want 
to develop a domestic violence code, if

[[Page 385]]

one is not already in place, to facilitate the implementation of 
strategies which have reduced violence against women in other court 
systems.
    (c) Requirements. Applicants in their applications shall at the 
minimum:
    (1) Describe the project or projects to be funded.
    (2) Agree to cooperate with the National Institute of Justice in a 
Federally-sponsored evaluation of their projects.
    (d) Certifications. (1) As required by section 2002(c) each Indian 
tribal government must certify in its application that it has met the 
requirements of this subpart regarding the use of funds for eligible 
purposes (Sec. 90.52); and non-supplantation (Sec. 90.56).
    (2) A certification that all the information contained in the 
application is correct, that all submissions will be treated as a 
material representation of fact upon which reliance will be placed, that 
any false or incomplete representation may result in suspension or 
termination of funding, recovery of funds provided, and civil and/or 
criminal sanctions.



Sec. 90.58  Evaluation.

    The National Institute of Justice will conduct an evaluation of 
these programs.



Sec. 90.59  Grantee reporting.

    (a) Upon completion of the grant period under this part, an Indian 
tribal grantee shall file a performance report with the Assistant 
Attorney General for the Office of Justice Programs explaining the 
activities carried out, including an assessment of the effectiveness of 
those activities in achieving the purposes of this subpart. Section 
2002(h)(1).
    (b) The Assistant Attorney General shall suspend funding for an 
approved application if:
    (1) An applicant fails to submit an annual performance report;
    (2) Funds are expended for purposes other than those described in 
this subchapter; or
    (3) A report under this section or accompanying assessments 
demonstrate to the Assistant Attorney General that the program is 
ineffective or financially unsound.



          Subpart D--Arrest Policies in Domestic Violence Cases

    Source: 61 FR 40733, Aug. 6, 1996, unless otherwise noted.



Sec. 90.60  Scope.

    This subpart sets forth the statutory framework of the Violence 
Against Women Act's sections seeking to encourage States, Indian tribal 
governments, and units of local government to treat domestic violence as 
a serious violation of criminal law.



Sec. 90.61  Definitions.

    For purposes of this subpart, the following definitions apply.
    (a) Domestic violence includes felony or misdemeanor crimes of 
violence committed by a current or former spouse of the victim, a person 
with whom the victim shares a child in common, a person who is 
cohabiting with or has cohabited with the victim as a spouse, a person 
similarly situated to a spouse of the victim under the domestic or 
family violence laws of the jurisdiction receiving grant monies, or by 
any other adult person against a victim who is protected from that 
person's acts under the domestic or family violence laws of the eligible 
State, Indian tribal government, or unit of local government that 
receives a grant under this subchapter.
    (b) Protection order includes any injunction issued for the purpose 
of preventing violent or threatening acts of domestic violence, 
including temporary and final orders issued by civil or criminal courts 
(other than support or child custody orders or provisions) whether 
obtained by filing an independent action or as a pendente lite order in 
another proceeding.
    (c) 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 eligibility, any agency of the District of Columbia 
government or the United States Government performing law enforcement

[[Page 386]]

functions in and for the District of Columbia, and the Trust Territory 
of the Pacific Islands.



Sec. 90.62  Purposes.

    (a) The purposes of this program are:
    (1) To implement mandatory arrest or pro-arrest programs and 
policies in police departments, including mandatory arrest programs or 
pro-arrest programs and policies for protection order violations;
    (2) To develop policies and training programs in police departments 
and other criminal justice agencies to improve tracking of cases 
involving domestic violence;
    (3) To centralize and coordinate police enforcement, prosecution, 
probation, parole or judicial responsibility for domestic violence cases 
in groups or units of police officers, prosecutors, probation and parole 
officers or judges;
    (4) To coordinate computer tracking systems to ensure communication 
between police, prosecutors, and both criminal and family courts;
    (5) To strengthen legal advocacy service programs for victims of 
domestic violence; and
    (6) To educate judges, and others responsible for judicial handling 
of domestic violence cases, in criminal, tribal, and other courts about 
domestic violence and improve judicial handling of such cases.
    (b) Grants awarded for these purposes must demonstrate meaningful 
attention to victim safety and offender accountability.



Sec. 90.63  Eligibility.

    (a) Eligible grantees are States, Indian tribal governments, or 
units of local government that:
    (1) Certify that their laws or official policies--
    (i) Encourage or mandate the arrest of domestic violence offenders 
based on probable cause that an offense has been committed; and
    (ii) Encourage or mandate the arrest of domestic violence offenders 
who violate the terms of a valid and outstanding protection order;
    (2) Demonstrate that their laws, policies, or practices and their 
training programs discourage dual arrests of offender and victim;
    (3) Certify that their laws, policies, or practices prohibit 
issuance of mutual restraining orders of protection except in cases 
where both spouses file a claim and the court makes detailed findings of 
fact indicating that both spouses acted primarily as aggressors and that 
neither spouse acted primarily in self-defense; and
    (4) Certify that their laws, policies, or practices do not require, 
in connection with the prosecution of any misdemeanor or felony domestic 
violence offense, that the abused bear the costs associated with filing 
criminal charges or the service of such charges on an abuser, or that 
the abused bear the costs associated with the issuance or service of a 
warrant, protection order, or witness subpoena (arising from the 
incident that is the subject of arrest or criminal prosecution).
    (b) If these laws, policies, or practices are not currently in 
place, States, Indian tribal governments, and units of local government 
must provide assurances that they will be in compliance with the 
requirements of this section by the date on which the next session of 
the State or Indian Tribal legislature ends, or September 13, 1996, 
whichever is later. Omnibus Act 2102(a)(1) 42 U.S.C. 3796hh-1(a)(1).
    (c) For the purposes of this Program, a jurisdiction need not have 
pre-existing policies encouraging or mandating arrest to meet the 
eligibility requirements listed in this section. However, in its 
application for funding through this Program, a State, Indian tribal 
government, or unit of local government must identify the type of policy 
that it intends to develop, and specify the process by which the policy 
will be developed and enacted. The policy development process must 
involve a coordinated effort by criminal justice personnel and non-
profit, private, domestic violence or sexual assault programs, including 
State coalitions.



Sec. 90.64  Application content.

    (a) Format. Applications from States, Indian tribal governments and 
units of local government must be submitted on Standard Form 424, 
Application for Federal Assistance, at a time designated by the Office 
of Justice Programs. The Violence Against Women

[[Page 387]]

Grants Office of the Office of Justice Programs will develop and 
disseminate to States, Indian tribal governments, local governments and 
other interested parties a complete Application Kit which will include a 
Standard Form 424, a list of assurances to which applicants must agree, 
and additional guidance on how to prepare and submit an application for 
grants under this subpart. To receive a complete Application Kit, please 
contact: The Violence Against Women Grants Office, Office of Justice 
Programs, Room 442, 633 Indiana Avenue, N.W., Washington, D.C. 20531. 
Telephone: (202) 307-6026.
    (b) Programs. Applications must set forth programs and projects that 
meet the purposes and criteria of the Grants to Encourage Arrest program 
set out in Secs. 90.62 and 90.63 of this part.
    (c) Requirements. Applicants in their applications shall, at a 
minimum:
    (1) Describe plans to further the purposes stated in Sec. 90.62 of 
this part;
    (2) Identify the agency or office or groups of agencies or offices 
responsible for carrying out the program. Examples of these agencies or 
offices include police departments, prosecution agencies, courts and 
probation or parole departments; and
    (3) Include documentation from nonprofit, private sexual assault and 
domestic violence programs demonstrating their participation in 
developing the application, and explain how these groups will be 
involved in the development and implementation of the project.
    (d) Certifications. (1) As required by section 2102(a) of the 
Omnibus Act, 42 U.S.C. 3796hh-1(a), each State, Indian tribal government 
or unit of local government must certify in its application that it has 
met the eligibility requirements set out in Sec. 90.63 of this part.
    (2) Each State, Indian tribal government or unit of local government 
must certify that all the information contained in the application is 
correct. All submissions will be treated as a material representation of 
fact upon which reliance will be placed, and any false or incomplete 
representation may result in suspension or termination of funding, 
recovery of funds provided, and civil and/or criminal sanctions.



Sec. 90.65  Evaluation.

    (a) The National Institute of Justice will conduct evaluations and 
studies of programs funded through this Program. The Office of Justice 
Programs will set aside a small portion of the overall funds authorized 
for the Program for this purpose. Recipients of funds must agree to 
cooperate with such federally-sponsored research and evaluation studies 
of their projects. In addition, grant recipients are required to report 
to the Attorney General on the effectiveness of their project(s). 
Section 2103, codified at 42 U.S.C. 3796hh-2.
    (b) Recipients of program funds are strongly encouraged to develop a 
local evaluation strategy to assess the impact and effectiveness of 
their programs. Applicants should consider entering into partnerships 
with research organizations that are submitting simultaneous grant 
applications to the National Institute of Justice for this purpose.



Sec. 90.66  Review of applications.

    (a) Review criteria. (1) The provisions of part U of the Omnibus Act 
and of the regulations is this subpart provide the basis for review and 
approval or disapproval of applications and amendments in whole or in 
part. Priority will be given to applicants that
    (i) Do not currently provide for centralized handling of cases 
involving domestic violence by police, probation and parole officers, 
prosecutors, and courts; and
    (ii) Demonstrate a commitment to strong enforcement of laws, and 
prosecution of cases, involving domestic violence. Omnibus Act 
Sec. 2102(b)(1)-(2), 42 U.S.C. 3796hh-1(b)(1)-(2) (1994).
    (2) Commitment may be demonstrated in a number of ways including: 
Clear communication from top departmental management that domestic 
violence prevention is a priority; strict enforcement of arrest 
policies; innovative approaches to officer supervision in domestic 
violence matters; acknowledgment of officers who consistently enforce 
domestic violence arrest policies and sanctions for those who do not; 
education and training for all officers and supervisors on enforcement 
of domestic violence arrest policies and

[[Page 388]]

the phenomenon of domestic violence; and the creation of special units 
to investigate and monitor spousal and partner abuse cases.
    (3) Priority also will be given to applicants who provide evidence 
of meaningful attention to victims' safety and those who demonstrate a 
strong commitment to provide victims with information on the status of 
their cases from the time the complaint is filed through sentencing.
    (b) Intergovernmental review. This program is covered by Executive 
Order 12372 (Intergovernmental Review of Federal Programs) and 
implementing regulations at 28 CFR part 30. A copy of the application 
submitted to the Office of Justice Programs should also be submitted at 
the same time to the State's Single Point of Contact, if there is a 
Single Point of Contact.



Sec. 90.67  Grantee reporting.

    Each grantee receiving funds under this subpart shall submit a 
report to the Attorney General evaluating the effectiveness of projects 
developed with funds provided under this subpart and containing such 
additional material as the Assistant Attorney General of the Office of 
Justice Programs may prescribe.



  Subpart E--Grants To Combat Violent Crimes Against Women on Campuses

    Source: 64 FR 39783, July 22, 1999, unless otherwise noted.



Sec. 90.100  What is the scope of the grant program?

    This Subpart implements the Higher Education Amendments of 1998, 
Part E, section 826 (Pub. L. 105-244, 112 Stat. 1815), which authorizes 
Federal financial assistance to institutions of higher education to work 
individually or in consortia consisting of campus personnel, student 
organizations, campus administrators, security personnel, and regional 
crisis centers affiliated with the institution for two broad purposes: 
to develop, implement, and strengthen effective security and 
investigation strategies to combat violent crimes against women on 
campuses, including sexual assault, stalking, and domestic violence and 
to develop, enlarge, and strengthen support services for victims of 
sexual assault, stalking, and domestic violence.



Sec. 90.101  What definitions apply for the grant program?

    For the purposes of this Subpart, the following definitions apply:
    (a) Domestic violence includes acts or threats of violence committed 
by a current or former spouse of the victim, by a person with whom the 
victim shares a child in common, by a person who is cohabitating with or 
has cohabitated with the victim, by a person similarly situated to a 
spouse of the victim under the domestic or family violence laws of the 
jurisdiction, or by any other person against a victim who is protected 
from that person's acts under the domestic or family violence laws of 
the jurisdiction.
    (b) Institution of higher education is defined to include an 
educational institution in any State that admits as regular students 
only persons having a certificate of graduation from a school providing 
secondary education, or the recognized equivalent of such a certificate; 
is legally authorized within such State to provide a program of 
education beyond secondary education; provides an educational program 
for which the institution has been granted preaccreditation status by 
such an agency or association that has been recognized by the Secretary 
for the granting of preaccreditation status, and the Secretary has 
determined that there is satisfactory assurance that the institution 
will meet the accreditation standards of such an agency or association 
within a reasonable time. Section 101, Public Law 105-244, 20 U.S.C. 
1001.
    (c) Sexual assault means any conduct proscribed by chapter 109A of 
Title 18, United States Code, whether or not the conduct occurs in the 
special maritime and territorial jurisdiction of the United States or in 
a Federal prison, including both assaults committed by offenders who are 
strangers to the victim and assaults committed by offenders who are 
known or related by blood or marriage to the victim.

[[Page 389]]

    (d) Victim services means a nonprofit, nongovernmental organization 
that assists domestic violence or sexual assault victims, including 
campus women's centers, rape crisis centers, battered women's shelters, 
and other sexual assault or domestic violence programs, including campus 
counseling support and victim advocate organizations with domestic 
violence, stalking, and sexual assault programs, whether or not 
organized and staffed by students.



Sec. 90.102  What are the purposes of the grant program?

    The purposes of the grant program in this subpart are:
    (a) To provide personnel, training, technical assistance, data 
collection, and other equipment with respect to the increased 
apprehension, investigation, and adjudication of persons committing 
violent crimes against women on campus;
    (b) To train campus administrators, campus security personnel, and 
personnel serving on campus disciplinary or judicial boards to more 
effectively identify and respond to violent crimes against women on 
campus, including the crimes of sexual assault, stalking, and domestic 
violence;
    (c) To implement and operate education programs for the prevention 
of violent crimes against women;
    (d) To develop, enlarge or strengthen support services programs, 
including medical or psychological counseling, for victims of sexual 
offense crimes;
    (e) To create, disseminate, or otherwise provide assistance and 
information about victims' options on and off campus to bring 
disciplinary or other legal action;
    (f) To develop and implement more effective campus policies, 
protocols, orders, and services specifically devoted to prevent, 
identify, and respond to violent crimes against women on campus, 
including the crimes of sexual assault, stalking, and domestic violence;
    (g) To develop, install, or expand data collection and communication 
systems, including computerized systems, linking campus security to the 
local law enforcement for the purpose of identifying and tracking 
arrests, protection orders, violations of protection orders, 
prosecutions, and convictions with respect to violent crimes against 
women on campus, including the crimes of sexual assault, stalking, and 
domestic violence;
    (h) To develop, enlarge, or strengthen victim services programs for 
the campus and to improve delivery of victim services on campus;
    (i) To provide capital improvements (including improved lighting and 
communications facilities but not including the construction of 
buildings) on campuses to address violent crimes against women on 
campus, including the crimes of sexual assault, stalking, and domestic 
violence; and
    (j) To support improved coordination among campus administrators, 
campus security personnel, and local law enforcement to reduce violent 
crimes against women on campus.



Sec. 90.103  What are the eligibility requirements for the grant program?

    (a) Eligible grantees are institutions of higher education that are 
in compliance with the campus crime reporting requirements as set forth 
in section 486(e) of the Higher Education Amendments of 1998, as 
amended, Public Law 105-244, 112 Stat. 1741, 20 U.S.C. 1092(f).
    (b) To be eligible for this Grant Program, such institutions of 
higher education referred to in paragraph (a) of this section must:
    (1) Collect crime statistics and information about any campus 
security policies for their respective campuses, and compile such data 
in an annual security report and disseminate it to all current students 
and employees, and, upon request, to any applicant for enrollment or 
employment;
    (2) Include in all annual security reports referred to in paragraph 
(b)(1) of this section information regarding campus security policies 
and campus crime statistics;
    (3) Certify that they have developed and carry out policies 
consistent with the requirements of the Amendment to the Family 
Educational Rights and Privacy Act (FERPA) of 1974, as amended by 
section 951 of the Higher Education Amendments of 1998;
    (4) Enter into partnerships with nonprofit, nongovernmental victim 
service providers through formal memoranda

[[Page 390]]

of understanding (MOU) clearly describing the responsibilities of each 
partner.



Sec. 90.104  What must the grant program application contain?

    (a) Format. Applications from institutions of higher education must 
be submitted on Standard Form 424, Application for Federal Assistance, 
at a time designated by the Violence Against Women Office of the Office 
of Justice Programs. The Violence Against Women Office of the Office of 
Justice Programs will develop and disseminate to institutions of higher 
education and other interested parties a complete Application Kit, which 
will include a Standard Form 424, a list of assurances to which 
applicants must agree, and additional guidance on how to prepare and 
submit an application for grants under this Subpart. Complete 
application kits will be available from: The Violence Against Women 
Office, Office of Justice Programs, 810 Seventh Street, N.W., 
Washington, D.C. 20531. Telephone: (202) 307-6026.
    (b) Programs. Applications must set forth programs and projects that 
meet the purposes and criteria of the Grants to Combat Violent Crimes 
Against Women on Campuses set out in Secs. 90.102 and 90.103.
    (c) Requirements. Applicants in their applications must, at a 
minimum:
    (1) Describe the need for grant funds and a plan for implementation 
of any of the 10 purpose areas set forth in Sec. 826 (b) of the Higher 
Education Amendments of 1998, Public Law 105-244, 112 Stat. 1816 (20 
U.S.C. 1152);
    (2) Describe how campus authorities shall consult and coordinate 
with nonprofit and other victim service programs, including sexual 
assault and domestic violence victim service programs;
    (3) Describe the characteristics of the population being served, 
including type of campus, demographics of the population, and the number 
of students;
    (4) Provide measurable goals and expected results from the use of 
grant funds;
    (5) Provide assurances that Federal funds made available under this 
section shall be used to supplement and, to the extent practical, 
increase the level of funds that would, in the absence of Federal funds, 
be made available by the institution for the 10 purposes as set forth in 
Sec. 826 (b) of the Higher Education Amendments of 1998, Public Law 105-
244, 112 Stat. 1816 (20 U.S.C. 1152);
    (6) Identify the agency or office or groups of agencies or offices 
responsible for carrying out the Program; and
    (7) Include documentation from nonprofit, nongovernmental sexual 
assault and domestic violence victims' programs demonstrating their 
participation in developing the application, and explain how these 
groups will be involved in the development and implementation of the 
project.
    (d) Certifications. (1) Each institution of higher education 
applying for grant funds must be in compliance with the eligibility 
requirements set out in Sec. 90.103.
    (2) Each institution of higher education applying for grant funds 
must certify that it is in compliance with the requirements of section 
485(f) of the Higher Education Act of 1965.
    (3) Each institution of higher education applying for grant funds 
must certify that it has developed policies consistent with the 
requirements of the Amendment to the Family Educational Rights and 
Privacy Act (FERPA) of 1974, at section 951 of the Higher Education 
Amendments of 1998, Public Law 105-244, 112 Stat. 1835.
    (4) Each institution of higher education applying for grant funds 
must certify that all the information contained in the application is 
correct. All submissions will be treated as a material representation of 
fact upon which reliance will be placed, and any false or incomplete 
representation may result in suspension or termination of funding, 
recovery of funds provided, and civil and/or criminal sanctions.



Sec. 90.105  What are the review criteria for grant program applications?

    (a) Equitable participation and geographic distribution. In 
accordance with section 826(a)(3) of the Higher Education Amendments of 
1998, Public Law 105-244, 112 Stat. 1816, every effort shall be made to 
ensure:
    (1) The equitable participation of private and public institutions 
of higher

[[Page 391]]

education in the activities assisted under this Subpart; and
    (2) The equitable geographic distribution of grants funded through 
this Subpart among the various regions of the United States.
    (b) Additional review criteria. Priority shall be given to 
applicants that demonstrate a commitment to developing strong 
collaborative models for developing services that are victim-centered; 
policies, protocols and penalties that hold offenders accountable; and 
programs that educate the entire campus community about how to end and 
prevent violence against women through systemic change. Commitment may 
be demonstrated in a number of ways including: clear communication from 
the institution's top leadership that strong responses to and prevention 
of violence against women is a priority; development and vigorous 
enforcement of campus policies and adherence to local laws addressing 
violence against women; creation of coordinated, multidisciplinary task 
forces that include at a minimum both campus and community-based victim 
service providers and campus security personnel and local law 
enforcement; innovative approaches to educating the entire campus 
community, including faculty, staff, administration, and students; 
provision of training and education programs to campus security 
personnel, others in positions of authority, and campus victim service 
providers; development of resource materials and information on violence 
against women; and innovative dissemination strategies for communicating 
information about the identification of violence against women, its 
underlying causes, and the consequences of committing violent crimes 
against women.
    (c) Intergovernmental review. This grant program is covered by 
Executive Order 12372, Intergovernmental Review of Federal Programs (3 
CFR, 1982 Comp., p. 197), and implementing regulations at 28 CFR Part 
30. A copy of the application submitted to the Violence Against Women 
Office of the Office of Justice Programs should also be submitted at the 
same time to the State's Single Point of Contact, if there is a Single 
Point of Contact.



Sec. 90.106  What are the grantee reporting requirements for the grant program?

    (a) Semi-annual progress reports and annual performance reports. 
Each grantee receiving funds under this Subpart shall submit semi-annual 
progress reports and an annual performance report to the Attorney 
General (Office of Justice Programs, Violence Against Women Office). 
Funding shall be suspended if a grantee fails to submit an annual 
performance report.
    (b) Final performance report. Upon completion of the grant period, 
the institution shall be required to file a final performance report to 
the Attorney General (Office of Justice Programs, Violence Against Women 
Office) and the Secretary of Education (U.S. Department of Education's 
Safe and Drug Free Schools Program) explaining the activities carried 
out under this Subpart along with an assessment of the effectiveness of 
those activities in achieving the purposes set forth previously.



PART 91--GRANTS FOR CORRECTIONAL FACILITIES--Table of Contents




                           Subpart A--General

Sec.
91.1  Purpose.
91.2  Definitions.
91.3  General eligibility requirements.
91.4  Truth in Sentencing Incentive Grants.
91.5  Violent Offender Incarceration Grants.
91.6  Matching requirement.

           Subpart B--FY 95 Correctional Boot Camp Initiative

91.10  General.

Subpart C--Violent Offender Incarceration and Truth-in-Sentencing Grant 
                       Programs for Indian Tribes

91.21  Purpose.
91.22  Definitions.
91.23  Grant authority.
91.24  Grant distribution.

  Subpart D--Environmental Impact Review Procedures for VOI/TIS Grant 
                                 Program

                               In General

91.50  Purpose.
91.51  Policy.
91.52  Definitions.

[[Page 392]]

91.53  Other guidance.

                  Application to VOI/TIS Grant Program

91.54  Applicability.
91.55  Categorical exclusions.
91.56  Actions that normally require the preparation of an environmental 
          assessment.
91.57  Actions that normally require the preparation of an environmental 
          impact statement.

                     Environmental Review Procedures

91.58  Timing of the environmental review process.
91.59  OJP's responsibilities.
91.60  Grantee's responsibilities.
91.61  Subgrantee's responsibilities.
91.62  Preparing an Environmental Assessment.
91.63  Preparing an Environmental Impact Statement.
91.64  Supplemental EA or EIS
91.65  Responsible OJP officials.
91.66  Public participation.

                Other State and Federal Law Requirements

91.67  State Environmental Policy Acts.
91.68  Compliance with other federal environmental statutes, regulations 
          and executive orders.

    Authority: 42 U.S.C. 13705.

    Source: 59 FR 63019, Dec. 7, 1994, unless otherwise noted.



                           Subpart A--General



Sec. 91.1  Purpose.

    The Attorney General, through the Assistant Attorney General for the 
Office of Justice Programs, will make grants to states and to states 
organized as multi-state compacts to construct, develop, expand, operate 
or improve correctional facilities, including boot camp facilities and 
other alternative correctional facilities that can free conventional 
space for the confinement of violent offenders, to:
    (a) Ensure that prison space is available for the confinement of 
violent offenders; and
    (b) Implement truth in sentencing laws for sentencing violent 
offenders.



Sec. 91.2  Definitions.

    (a) Violent offender. [Reserved]
    (b) Serious drug offense means an offense involving manufacturing, 
distributing, or possessing with intent to manufacture or distribute, a 
controlled substance (as defined in Section 102 of the Controlled 
Substances Act (21 U.S.C. 802)), for which a maximum term of 
imprisonment of 10 years or more is prescribed by state law.
    (c) Part 1 violent crimes means murder and non-negligent 
manslaughter, forcible rape, robbery, and aggravated assault as reported 
to the Federal Bureau of Investigation for purposes of the Uniform Crime 
Reports. If such data is unavailable, Bureau of Justice Statistics (BJS) 
publications may be utilized. See, e.g., ``Census of State and Federal 
Correctional Facilities, 1990.'' (''Part 1 violent crimes'' are defined 
here solely as the statutorily prescribed basis for the formula 
allocation of funding.)
    (d) Recipient means individual states or multi-state compacts 
awarded funds under this part.
    (e) State means a State, the District of Columbia, the Commonwealth 
of Puerto Rico, the United States Virgin Islands, American Samoa, Guam 
and the Northern Mariana Islands.
    (f) Comprehensive correctional plan means a plan which represents an 
integrated approach to the management and operation of adult and 
juvenile correctional facilities and programs and which includes 
diversion programs, particularly drug diversion programs, community 
corrections programs, a prisoner screening and security classification 
system, appropriate professional training for corrections officers in 
dealing with violent offenders, prisoner rehabilitation and treatment 
programs, prisoner work activities (including to the extent practicable, 
activities relating to the development, expansion, modification, or 
improvement of correctional facilities) and job skills programs, 
educational programs, a pre-release prisoner assessment to provide risk 
reduction management, post-release assistance and an assessment of 
recidivism rates.
    (g) Correctional facilities includes boot camps and other 
alternative correctional facilities for adults or juveniles that can 
free conventional bed space for the confinement of violent offenders.
    (h) Boot camp means a corrections program for adult or juvenile 
offenders

[[Page 393]]

of not more than six-months confinement (not including time in 
confinement prior to assignment to the boot camp) involving:
    (1) Assignment for participation in the program, in conformity with 
state law, by prisoners other than prisoners who have been convicted at 
any time for a violent felony;
    (2) Adherence by inmates to a highly regimented schedule that 
involves strict discipline, physical training, and work;
    (3) Participation by inmates in appropriate education, job training, 
and substance abuse counseling or treatment; and
    (4) Post-incarceration aftercare services for participants that are 
coordinated with the program carried out during the period of 
imprisonment.
    (i) Truth in sentencing laws means laws that:
    (1) Ensure that violent offenders serve a substantial portion of 
sentences imposed;
    (2) Are designed to provide sufficiently severe punishment for 
violent offenders, including violent juvenile offenders; and
    (3) The prison time served is appropriately related to the 
determination that the inmate is a violent offender and for a period of 
time deemed necessary to protect the public.



Sec. 91.3  General eligibility requirements.

    (a) Recipients must be individual states, or states organized as 
multi-state compacts.
    (b) Application requirements. To be eligible to receive either a 
formula or a discretionary grant under subtitle A, an applicant must 
submit an application which includes:
    (1) Assurances that the state(s) have implemented, or will 
implement, correctional policies and programs, including truth in 
sentencing laws. No specific requirements for complying with this 
condition are prescribed by this interim rule for fiscal 1995 funding 
because of the need for further review of the status of truth in 
sentencing laws and the impact and needs requirements relating to reform 
in state systems.
    (2) Assurances that the state(s) have implemented or will implement 
policies that provide for the recognition of the rights and needs of 
crime victims.

States are not required to adopt any specific set of victims rights 
measures for compliance, but the adoption by a state of measures which 
are comparable to or exceed those applied in federal proceedings will be 
deemed sufficient compliance for eligibility for funding. If the state 
has not adopted victims rights measures which are comparable to or 
exceed federal law, the adequacy of compliance will be determined on a 
case-by-case basis. States will be afforded a reasonable amount of time 
to achieve compliance. States may comply with this condition by 
providing recognition of the rights and needs of crime victims in the 
following areas:
    (i) Providing notice to victims concerning case and offender status;
    (ii) Providing an opportunity for victims to be present at public 
court proceedings in their cases;
    (iii) Providing victims the opportunity to be heard at sentencing 
and parole hearings;
    (iv) Providing for restitution to victims; and
    (v) Establishing administrative or other mechanisms to effectuate 
these rights.
    (3) Assurances that funds received under this section will be used 
to construct, develop, expand, operate or improve correctional 
facilities to ensure that secure space is available for the confinement 
of violent offenders.
    (4) Assurances that the state(s) has a comprehensive correctional 
plan in accordance with the definition elements in Sec. 91.2. If the 
state(s) does not have an adequate comprehensive correctional plan, 
technical assistance will be available for compliance. States will be 
afforded a reasonable amount of time to develop their plans.
    (5) Assurances that the state(s) has involved counties and other 
units of local government, when appropriate, in the construction, 
development, expansion, modification, operation or improvement of 
correctional facilities designed to ensure the incarceration of violent 
offenders and that the state(s) will share funds received with counties 
and other units of local government, taking into account the burden 
placed

[[Page 394]]

on these units of government when they are required to confine sentenced 
prisoners because of overcrowding in state prison facilities.
    (6) Assurances that funds received under this section will be used 
to supplement, not supplant, other federal, state, and local funds.
    (7) Assurances that the state(s) has implemented, or will implement 
within 18 months after the date of the enactment of the Violent Crime 
Control and Law Enforcement Act of 1994 (September 13, 1994), policies 
to determine the veteran status of inmates and to ensure that 
incarcerated veterans receive the veterans benefits to which they are 
entitled.
    (8) Assurances that correctional facilities will be made accessible 
to persons conducting investigations under the Civil Rights of 
Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997.
    (9) If applicable, documentation of the multi-state compact 
agreement that specifies the construction, development, expansion, 
modification, operation, or improvement of correctional facilities.
    (10) If applicable, a description of the eligibility criteria for 
participation in any boot camp that is to be funded.
    (c) States, and states organized as multi-state compacts, which can 
demonstrate affirmative responses to the assurances outlined above will 
be eligible to receive funds.
    (d) Each state application for such funds must be accompanied by a 
comprehensive correctional plan. The plan shall be developed in 
consultation with representatives of appropriate state and local units 
of government, shall include both the adult and juvenile correctional 
systems, and shall provide an assessment of the state and local 
correctional needs, and a long-range implementation strategy for 
addressing those needs.
    (e) Local units of government, i.e., any city, county, town, 
township, borough, parish, village or other general purpose subdivision 
of a state, or Indian tribe which performs law enforcement functions as 
determined by the secretary of the Interior, are in turn eligible to 
receive subgrants from a participating state(s). Such subgrants shall be 
made for the purpose(s) of carrying out the implementation strategy, 
consistent with state(s) comprehensive correctional plan.
    (f) In awarding grants, consideration shall be given to the special 
burden placed on states which incarcerate a substantial number of 
inmates who are in the United States illegally. States will not be 
required to submit additional information on numbers of criminal aliens. 
The Bureau of Justice Assistance (BJA) and the Immigration and 
Naturalization Service (INS) are currently working together to implement 
the State Criminal Alien Assistance Program (SCAAP) to assist the states 
with the costs of incarcerating criminal aliens. The Office of Justice 
Programs will coordinate with the SCAAP program to obtain the relevant 
information.



Sec. 91.4  Truth in Sentencing Incentive Grants.

    (a) Half of the total amount of funds appropriated to carry out 
subtitle A for each of the fiscal years 1996, 1997, 1998, 1999 and 2000 
will be made available for Truth in Sentencing Incentive Grants.
    (b) Eligibility. To be eligible to receive such a grant, a state, or 
states organized as multi-state compacts, must meet the requirements of 
Sec. 91.3 and must demonstrate that the state(s)--
    (1) Has in effect laws which require that persons convicted of 
violent crimes serve not less than 85% of the sentence imposed; or
    (2) Since 1993--
    (i) Has increased the percentage of convicted violent offenders 
sentenced to prison;
    (ii) Has increased the average prison time which will be served in 
prison by convicted violent offenders sentenced to prison;
    (iii) Has increased the percentage of sentence which will be served 
in prison by violent offenders sentenced to prison; and
    (iv) Has in effect at the time of application laws requiring that a 
person who is convicted of a violent crime shall serve not less than 85% 
of the sentence imposed if--
    (A) The person has been convicted on 1 or more prior occasions in a 
court of

[[Page 395]]

the United States or of a state of a violent crime or a serious drug 
offense; and
    (B) Each violent crime or serious drug offense was committed after 
the defendant's conviction of the preceding violent crime or serious 
drug offense.
    (c) Formula allocation. The amount available to carry out this 
section for any fiscal year will be allocated to each eligible state in 
the ratio that the number of Part 1 violent crimes reported by such 
state to the Federal Bureau of Investigation for 1993 bears to the 
number of Part 1 violent crimes reported by all states to the Federal 
Bureau of Investigation for 1993.
    (d) Transfer of unused funds. On September 30 of each fiscal years 
1996, 1998, 1999 and 2000, the Attorney General will transfer to the 
funds to be allocated under the Violent Offender Incarceration Grant 
formula allocation (section 91.5) any funds made available to carry out 
this section that are not allocated to an eligible state under paragraph 
(b) of this section.



Sec. 91.5  Violent Offender Incarceration Grants.

    (a) Half of the total amount of funds appropriated to carry out this 
subtitle for each of fiscal years 1996, 1997, 1998, 1999 and 2000 will 
be made available for Violent Offender Incarceration Grants.
    (b) Eligibility. To be eligible to receive such a grant, a state, or 
states organized as multi-state compacts, must meet the requirements of 
section 91.3(b).
    (c) Allocation of violent offender incarceration funds--(1) Formula 
allocation. 85% of the sum of the amount available for grants under this 
section for any fiscal year and any amount transferred as described in 
Sec. 91.4(c) for that fiscal year will be allocated as follows:
    (i) 0.25% will be allocated to each eligible state except that the 
United States Virgin Islands, American Samoa, Guam and the Northern 
Mariana Islands shall each be allocated 0.05%.
    (ii) The amount remaining after application of paragraph (c)(1)(i) 
of this section will be allocated to each eligible state in the ratio 
that the number of Part 1 violent crimes reported by such state to the 
Federal Bureau of Investigation for 1993 bears to the number of Part 1 
violent crimes reported by all states to the Federal Bureau of 
Investigation for 1993.
    (2) Discretionary allocation. Fifteen percent of the sum of the 
amount available for Violent Offender Incarceration Grants for any 
fiscal year under this subsection and any amount transferred as 
described in Sec. 91.4(c) for that fiscal year will be allocated at the 
discretion of the Assistant Attorney General for OJP to states that have 
demonstrated:
    (i) The greatest need for such grants, and
    (ii) The ability to best utilize the funds to meet the objectives of 
the grant program and ensure that secure cell space is available for the 
confinement of violent offenders.
    (d) Transfer of unused funds. On September 30 of each fiscal years 
1996, 1997, 1998, 1999 and 2000, the Assistant Attorney General will 
transfer to the discretionary program under paragraph (c)(2) of this 
section any funds made available under paragraph (c)(1) of this section 
that are not allocated to an eligible state under paragraph (c)(1) of 
this section.



Sec. 91.6  Matching requirement.

    (a) The federal share of a grant received under this subtitle may 
not exceed 75 percent of the costs of a proposal described in an 
application approved under this subtitle. The matching requirement can 
only be met through a hard cash match, and must be satisfied by the end 
of the project period. A certification to that effect will be required 
of each recipient of grant funds and must be submitted to the Office of 
Justice Programs with the application.
    (b) [Reserved]



           Subpart B--FY 95 Correctional Boot Camp Initiative



Sec. 91.10  General.

    (a) Scope of boot camp program. Funding is appropriated in fiscal 
year 1995 to provide grants to states and multi-state compacts to plan, 
develop, construct and expand correctional boot camps for adults and 
juveniles.

[[Page 396]]

    (b) Adult and juvenile boot camps, referred to as ``correctional 
boot camps,'' are programs that ``provide a structured environment for 
delivering non-traditional corrections programs to criminal offenders.''
    (c) With respect to this program, the mandates of the Juvenile 
Justice and Delinquency Prevention Act (42 U.S.C. 5601 et seq.) shall 
apply.
    (d) Eligibility. (1) Funding is available for both adult and 
juvenile boot camps. To be eligible for the funding of boot camps, 
states must comply with the general assurances in Sec. 91.3(b) or 
demonstrate steps taken toward compliance. While the majority of 
assurances are applicable to the adult correctional system, those states 
applying for grants for juvenile boot camps must include the juvenile 
system in the state comprehensive correctional plan and demonstrate how 
construction of the boot camp will make secure space available to house 
violent juvenile offenders.
    (2) For purposes of the FY '95 boot camp program, a ``violent 
felony'' means any crime punishable by imprisonment for a term exceeding 
one year, or an act of juvenile delinquency that would be punishable by 
imprisonment for such term if committed by an adult, that:
    (i) Involves the use or attempted use of a firearm or other 
dangerous weapon against another person, or
    (ii) Results in death or serious bodily injury to another person.
    (3) States must document that the boot camp program does not involve 
more than six-months confinement (not including confinement prior to 
assignment to the boot camp) and includes:
    (i) Assignment for participation in the program, in conformity with 
state law, by prisoners other than prisoners who have been convicted at 
any time of a violent felony;
    (ii) Adherence by inmates to a highly regimented schedule that 
involves strict discipline, physical training and work;
    (iii) Participation by inmates in appropriate education, job 
training, and substance abuse counseling or treatment; and
    (iv) Post-incarceration aftercare services for participants that are 
coordinated with the program carried out during the period of 
imprisonment.
    (4) States must provide assurances that boot camp construction will 
free up secure institutional bed space for violent offenders.
    (e) Evaluation. (1) Recipients will be required to cooperate with a 
national evaluation team throughout the planning and implementation 
process. Recipients are also strongly encouraged to provide for an 
independent evaluation of the impact and effectiveness of the funded 
program.
    (2) Jurisdictions are strongly encouraged to engage in systematic 
planning activities and to develop and evaluate boot camps as part of a 
comprehensive and integrated correctional plan.
    (f) Limitation on funds. Grant funds cannot be used for operating 
costs. States will be required to show how operating expenses will be 
provided.
    (g) Matching requirement. The federal share of a grant received may 
not exceed 75 percent of the costs of the proposed boot camp program 
described in the appoved application. The matching requirement can only 
be met through a hard cash match, and must be satisfied by the end of 
the project period; facility operating expenses may not be used to meet 
the match requirement for the construction project supported. Match may 
be made through grantee contribution of construction-related costs. A 
certification to that effect will be required of each recipient of grant 
funds.
    (h) Innovative boot camp programs. Jurisdictions are encouraged to 
explore the development of ``innovative'' boot camp programs which 
incorporate principles based on the accumulation of research and 
practical experience, and reflect sound and effective correctional 
practice.



Subpart C--Violent Offender Incarceration and Truth-in-Sentencing Grant 
                       Programs for Indian Tribes

    Authority: 42 U.S.C. 13701 et seq., as amended by Pub. L. 104-134.

    Source: 61 FR 49970, Sept. 24, 1996, unless otherwise noted.

[[Page 397]]



Sec. 91.21  Purpose.

    This part sets forth requirements and procedures to award grants to 
Indian Tribes for purposes of constructing jails on tribal lands for the 
incarceration of offenders subject to tribal jurisdiction.



Sec. 91.22  Definitions.

    (a) The Act means the Violent Crime Control and Law Enforcement Act 
of 1994, Subtitle A of Title II, Public Law 103-322, 108 Stat. 1796 
(September 13, 1994) as amended by the Fiscal Year 1996 Omnibus 
Consolidated Rescissions and Appropriations Act, Public Law 104-134 
(April 26, 1996), codified at 42 U.S.C. 13701 et. seq.
    (b) Assistant Attorney General means the Assistant Attorney General 
for the Office of Justice Programs.
    (c) Tribal lands means:
    (1) All land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation;
    (2) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a State; 
and
    (3) All Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of way running through the same.
    (d) Indian Tribe means any Indian or Alaska Native tribe, band, 
nation, pueblo, village, or community that the Secretary of the Interior 
acknowledges to exist as an Indian tribe pursuant to Public Law 103-454, 
108 Stat. 4791, and which performs law enforcement functions as 
determined by the Secretary of the Interior.
    (e) Construct jails means constructing, developing, expanding, 
modifying, or renovating jails and other correctional facilities.



Sec. 91.23  Grant authority.

    (a) The Assistant Attorney General may make grants to Indian tribes 
for programs that involve constructing jails on tribal lands for the 
incarceration of offenders subject to tribal jurisdiction.
    (b) Applications for grants under this program shall be made at such 
times and in such form as may be specified by the Assistant Attorney 
General. Applications will be evaluated according to the statutory 
requirements of the Act and programmatic goals.
    (c) Grantees must comply with all statutory and program requirements 
applicable to grants under this program.



Sec. 91.24  Grant distribution.

    (a) From the amounts appropriated under section 20108 of the Act to 
carry out sections 20103 and 20104 of the Act, the Assistant Attorney 
General shall reserve, to carry out this program--
    (1) 0.3 percent in each fiscal years 1996 and 1997; and
    (2) 0.2 percent in each of fiscal years 1998, 1999 and 2000.
    (b) From the amounts reserved under paragraph (a) of this section, 
the Assistant Attorney General may exercise discretion to award or 
supplement grants to such Indian Tribes and in such amounts as would 
best accomplish the purposes of the Act.



  Subpart D--Environmental Impact Review Procedures for VOI/TIS Grant 
                                 Program

    Authority: 42 U.S.C. 13701 et seq., as amended by Pub. L. 104-134; 
42 U.S.C. 4321 et seq.; 40 CFR Parts 1500-1508.

    Source: 65 FR 48595, Aug. 8, 2000, unless otherwise noted.

                               In General



Sec. 91.50  Purpose.

    The purpose of this subpart is to inform grant recipients under the 
Violent Offender Incarceration and Truth-in-Sentencing Incentive (VOI/
TIS) Formula Grant Program of OJP's procedures for complying with the 
National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et. seq., and 
related environmental impact review requirements.



Sec. 91.51  Policy.

    (a) NEPA Policy. NEPA policy requires that Federal agencies, to the 
fullest extent possible:

[[Page 398]]

    (1) Implement procedures to make the NEPA process more useful to 
decision-makers and the public; reduce paperwork and the accumulation of 
extraneous background data; and emphasize real environmental issues and 
alternatives. Environmental impact statements shall be concise, clear, 
and to the point, and shall be supported by evidence that agencies have 
made the necessary environmental analyses.
    (2) Integrate the requirements of NEPA with other planning and 
environmental review procedures required by law and by agency practice 
so that all such procedures run concurrently rather than consecutively.
    (3) Encourage and facilitate public involvement in decisions which 
affect the quality of the human environment.
    (4) Use the NEPA process to identify and assess reasonable 
alternatives to proposed actions that will avoid or minimize adverse 
effects of these actions upon the quality of the human environment.
    (5) Use all practicable means to restore and enhance the quality of 
the human environment and avoid or minimize any possible adverse effects 
of the actions upon the quality of the human environment.
    (b) OJP's policy to minimize harm to the environment. It is OJP's 
policy to minimize harm to the environment. Consequently, OJP can reject 
proposals or prohibit a State from using formula grant funds for a 
project that would have a substantial adverse impact on the human 
environment. Additionally, federal law prohibits the implementation of a 
project that jeopardizes the continued existence of an endangered 
species or that violates certain regulations related to water quality. 
Generally, though, where an EA or EIS reveals that a project will have 
adverse environmental impacts, OJP will work with the State grantee to 
identify ways to modify the project to mitigate any adverse impacts, or 
will encourage the State to consider an alternative site.
    (c) Mitigation. OJP may require the following mitigation measures to 
reduce or eliminate a project's adverse environmental impacts:
    (1) Avoiding the impact altogether by not taking certain action or 
part of an action.
    (2) Minimizing impacts by limiting the degree or magnitude of the 
action and its implementation.
    (3) Rectifying the impact by repairing, rehabilitating, or restoring 
the affected environment.
    (4) Reducing or eliminating the impact over time by preservation and 
maintenance operations during the life of the action.
    (5) Compensating for the impact by replacing or providing substitute 
resources or environments.
    (d) Use of grant funds. In accordance with OJP's general policy of 
providing the States with the maximum amount of control and flexibility 
over the use of formula grant funds, the States can use VOI/TIS grant 
funds to pay for the costs of preparing environmental documents, to 
implement mitigation measures to reduce adverse environmental impacts, 
and to cover the costs of construction delays or other project changes 
resulting from compliance with the NEPA process. However, any funds used 
for these purposes must be included as a portion of the State's grant 
which requires a State match.



Sec. 91.52  Definitions.

    The definitions supplied by the Council on Environmental Quality in 
its Regulations for Implementing the Procedural Provisions of the 
National Environmental Policy Act, 40 CFR Parts 1500 through 1508, (CEQ 
Regulations), shall apply to the terms in this subpart.



Sec. 91.53  Other guidance.

    The Department of Justice has also published NEPA procedures that 
incorporate the CEQ regulations at 28 CFR part 61. Additionally, the 
Office of Justice Programs' Corrections Program Office has prepared a 
handbook for VOI/TIS grantees, Program Guidance on Environmental 
Protection Requirements. This publication and other relevant documents 
can be found at http://www.ojp.usdoj.gov/cpo.

                  Application to VOI/TIS Grant Program



Sec. 91.54  Applicability.

    (a) Major Federal action. NEPA's requirements apply to any proposal 
for

[[Page 399]]

legislation or other major federal action that might significantly 
impact the quality of the human environment. The CEQ regulations in 40 
CFR 1508.18 define ``major federal actions'' as actions with effects 
that may be major and which are potentially subject to Federal control 
and responsibility. The CEQ regulations categorize ``major federal 
actions'' as, among other things, the ``[a]pproval of specific projects, 
such as construction or management activities located in a defined 
geographic area. Projects include actions approved by permit or other 
regulatory decision as well as Federal and Federally assisted 
activities.'' (40 CFR 1508.18(b)(4)).
    (b) VOI/TIS construction grants subject to NEPA. This subpart 
applies to all proposed, new and partially completed VOI/TIS projects 
(including projects on tribal lands) initiated by state or local units 
of government with grant funding from OJP that involve construction, 
expansion, renovation, facility planning, site selection, site 
preparation, security or facility upgrades or other activities that may 
significantly impact the environment.
    (c) Projects. Although VOI/TIS money cannot be used for a project's 
operations expenses, the definition of ``project'' or ``proposal'' for 
NEPA review purposes is defined as both the construction and the long-
term operation of correctional facilities and related components such as 
all off-site projects to accommodate the needs of the correctional 
facilities project (e.g., road and utility construction or expansion, 
projects offered to the affected community as an incentive to accept the 
correctional facility construction or expansion, and other reasonably 
foreseeable future actions regardless of what agency or third party 
undertakes such action). Reasonably foreseeable actions include future 
prison construction phases, especially when either current acreage 
requirements or design capacities for utilities are based on needs 
stemming from future phases.



Sec. 91.55  Categorical exclusions.

    Activities undertaken by State, local, or tribal entities using VOI/
TIS funds that are consistent with any of the following categories are 
presumed not to have a significant effect on the human environment and 
thus, are categorically excluded from the preparation of either an EA or 
an EIS. Although these activities are excluded from environmental 
reviews under NEPA, they are not excluded from compliance with other 
applicable local, State, or Federal environmental laws. Additionally, an 
otherwise excluded activity loses its exclusion and is subject to 
environmental review if it either would be located within or potentially 
affect any of the following: a 100-year flood plain, a wetland, 
important farmland, a proposed or listed endangered or threatened 
species, a proposed or listed critical habitat, a property that is 
listed or eligible for listing on the National Register of Historic 
Places, an area within an approved State Coastal Zone Management 
Program, a coastal barrier or a portion of a barrier within the Coastal 
Barrier Resources System, a river or portion of a river included in or 
designated for potential addition to the Wild and Scenic Rivers System, 
a designated or proposed Wilderness Area, or a sole source aquifer 
recharge area designated by the Environmental Protection Agency (EPA). 
The resulting environmental review for those activities that lose their 
exclusion status shall focus on the factor or factors that caused the 
loss of the exclusion.
    (a) Minor renovations. Projects for minor renovations within an 
existing facility, unless the renovation would impact a structure which 
is on the National Register of Historic Places, or is eligible for 
listing on the register.
    (b) Limited expansion. Projects for the expansion of an existing 
facility or within an existing correctional complex, which does not add 
more than 50 beds or increase the capacity of the facility by more than 
50 percent whichever is smaller. This exclusion does not apply to either 
a phased project that exceeds these numerical thresholds or projects to 
expand facilities that:
    (1) Are located in a floodplain;
    (2) Will affect a wetland;
    (3) Will affect a facility on the National Register of Historic 
Places or that is eligible for listing on the register;

[[Page 400]]

    (4) Will affect a federally proposed or listed endangered or 
threatened species or its habitat;
    (5) Is controversial for environmental reasons; or
    (6) Would not be served by adequate sewage treatment, solid waste 
disposal, or water facilities.
    (c) Expansion of support facilities. Projects for the expansion of 
bed space within an existing facility (e.g., double bunking or 
conversion of non-cell space) which are using grant funds to expand or 
add support facilities, such as a kitchen, medical facilities, 
recreational space, or program space, to accommodate the increased 
number of inmates. This does not include projects to increase capacity 
for support facilities which might pose a threat to the environment, 
such as solid waste and waste water management, new roads, new or 
upgraded utilities coming into the facility, or prison industry programs 
that involve the use of chemicals and produce hazardous waste or water 
or air pollution.
    (d) Security upgrades. Security upgrades of an existing facility 
which are inside the existing perimeter fence or involve the upgrade of 
the existing perimeter fence. This exclusion does not include such 
upgrades as adding lethal fences or increasing height or lighting of a 
perimeter fence in a residential area or other areas sensitive to the 
visual impacts resulting from height or lighting changes.
    (e) Privatization. Projects that involve the leasing of bed space 
(which may include operational costs) from a facility operated by a 
private correctional corporation or that contract with a private 
correctional corporation for the operation of a state facility or 
program. This exclusion does not apply if the correctional agency has 
contracted with the private vendor to build the facility, operate the 
facility, or lease beds to the correctional agency using federal grant 
funds.
    (f) Drug testing and treatment. Projects that use grant funds to 
implement drug treatment, testing, sanctions, or interdiction programs.



Sec. 91.56  Actions that normally require the preparation of an environmental assessment.

    (a) Renovation or expansion of existing correctional facility. 
Renovation or expansion activities not categorically excluded under 
Sec. 91.55 require an environmental assessment (EA). An environmental 
assessment is generally prepared when a project is not expected to have 
a significant impact on the environment. Since projects for the 
renovation or expansion of an existing facility or the construction of a 
new facility within an existing correctional complex may have limited 
impact on the environment, preparing an EA may be sufficient.
    (b) Proposed construction of a new correctional facility. The 
proposed construction of a new correctional facility will require the 
preparation of an environmental assessment unless the proposal will 
clearly have a significant environmental impact in which case an 
environmental impact statement can be initiated immediately without the 
preparation of an environmental assessment.



Sec. 91.57  Actions that normally require the preparation of an environmental impact statement.

    Significant impact. For the proposed construction of a new 
correctional facility or the proposed expansion of an existing facility, 
if the proposal is large or complex and/or controversial because of the 
nature of possible environmental impacts, and/or if any EA determines 
that the project will have a significant impact on the environment, an 
environmental impact statement (EIS) will be required. For those 
projects that clearly will have significant environmental impact, a 
grantee can save time and resources by initiating the EIS immediately 
without going through the EA process.

                     Environmental Review Procedures



Sec. 91.58  Timing of the environmental review process.

    (a) Initial planning and site selection phase. The NEPA procedures 
must be initiated as part of the planning and

[[Page 401]]

site selection phase of all new construction, expansion, and renovation 
projects and completed before the construction or renovation on the 
project can begin.
    (b) Early consultation with OJP. As grantees identify proposed, new 
projects, the grantees must inform OJP and after consulting OJP's 
Program Guidance on Environmental Protection Requirements, must 
recommend to OJP whether:
    (1) The proposed project meets the criteria of a categorical 
exclusion;
    (2) An environmental assessment should be initiated;
    (3) Because of the project size and/or anticipated environmental 
impacts, an environmental impact statement should be initiated.
    (c) Design phase. Projects currently in the planning and design 
phase must complete the NEPA procedures and no further decisions or new 
commitments of resources can be made on these projects by the State or 
local entity that would either have an adverse impact on the environment 
or limit the choice of reasonable alternative sites.
    (d) Prohibited pre-analysis activities. None of the following 
actions can be taken until the NEPA analysis is completed for the 
affected project:
    (1) Starting construction;
    (2) Accepting construction bids;
    (3) Advertising for construction bids;
    (4) Initiating the development of or approving final plans and 
specifications; or
    (5) Purchasing property.
    (e) Ongoing or completed construction projects. For grant-funded 
projects under construction, OJP will work with the States to determine 
what environmental analysis has been done, making every effort to limit 
disruption to projects under construction. For completed grant-funded 
projects, OJP will work with the States to determine whether those 
projects may pose continuing environmental problems. For example, NEPA 
issues may exist due to excessive noise, light pollution, excessive 
water consumption or draw down on an important stream, or adverse visual 
impact due to an inappropriate facade color in an environmentally scenic 
area. Consequently, performing an analysis for those VOI/TIS VOI/TIS 
projects for which construction is completed may still serve the useful 
purpose of determining the extent of a project's continuing adverse 
environmental impacts, and the feasibility of mitigation measures.
    (f) Avoiding duplication of efforts. If an EA or EIS was completed 
on an original structure, any environmental research that was conducted 
at the time the original structure was being planned and is still 
relevant need not be duplicated in any required environmental impact 
analysis for proposed modifications or additions to that structure.



Sec. 91.59  OJP's responsibilities.

    (a) In general. All NEPA decisions such as determining the adequacy 
of assessments, the need for environmental impact statements, and their 
adequacy must, by statute, remain with OJP. Therefore, OJP, as the 
Federal agency sponsoring the major federal action, shall determine if a 
proposed project qualifies for a categorical exclusion, if a finding of 
no significant impact can be issued based on the EA, or if an EIS will 
be required.
    (b) Specific duties. As part of its role in the NEPA process, OJP 
shall:
    (1) Issue guidance on the preparation of environmental documents and 
the NEPA process.
    (2) Review all draft documents.
    (3) Participate in giving notice to state and federal agencies, as 
well as to the public, and attend public meetings with the grantee, as 
appropriate.
    (4) Identify and solicit appropriate state, local, and tribal 
agencies to be a cooperating or joint lead agency, as appropriate.
    (5) Prepare a written assessment of any environmental impacts that 
another state or federal land management or environmental protection 
agency believes have not been adequately addressed through the NEPA 
process.
    (6) Monitor implementation by the states to ensure the completion of 
any required mitigation measures.
    (7) Develop a sample Statement of Work for preparing an EIS that 
States employing their own contractor can use to ensure that the 
services provided meet the requirements.

[[Page 402]]



Sec. 91.60  Grantee's responsibilities.

    Specific duties. As part of its role in the NEPA process, the 
grantee agency must:
    (a) Work closely with OJP on the development and review of the 
environmental documents, and follow the NEPA process, with the full 
participation of OJP.
    (b) Issue the documents for public comment jointly with OJP.
    (c) Solicit comment from other state and federal agencies, 
interested organizations, and the public.
    (d) Refrain from purchasing land, beginning bidding process, or 
starting construction on any project until all environmental work has 
been completed.
    (e) Complete a project Status Report form for all projects under 
construction or completed prior to the effective date of this subpart.
    (f) Ensure that appropriate environmental analysis, as determined by 
OJP, is completed for all projects and that appropriate alternatives are 
considered and mitigation measures are implemented to reduce the impact 
of identified environmental impacts, if any.
    (g) Identify and inform OJP of all applicable state and local 
environmental impact review requirements.
    (h) Notify all subgrantees of the requirements of this subpart in 
the initial planning and site selection phase.



Sec. 91.61  Subgrantee's responsibilities.

    If delegated by the grantee, the subgrantee shall:
    (a) Prepare (if the required expertise exists) or contract for the 
preparation of an environmental assessment (EA); and
    (b) Submit all environmental assessments through the grantee to OJP 
for review and the issuance of a draft finding of no significant impact 
(FONSI) or a determination that an environmental impact statement (EIS) 
is required. If OJP issues a draft FONSI, the grantee agency shall make 
the draft FONSI and the underlying EA available for public comment.



Sec. 91.62  Preparing an Environmental Assessment.

    (a) In general. An Environmental Assessment (EA) is a concise public 
document that provides sufficient evidence and analysis for determining 
whether OJP should issue a Finding of No Significant Environmental 
Impact (FONSI) or prepare an Environmental Impact Statement (EIS). It is 
designed to help public officials make decisions that are based on an 
understanding of the human and physical environmental consequences of 
the proposed project and take actions, in the location and design of the 
project, that protect, restore and enhance the environment. Completing 
an EA requires considering all potential impacts associated with the 
construction of the correctional facility project, its operation and 
maintenance, any related projects including those off-site, and the 
attainment of the project's major objectives. The latter requires an 
analysis of the environmental impacts of any training and vocational 
activities to be conducted by the inmates.
    (b) Project planning and site selection. During the planning phase 
of the project, OJP and the grantee jointly define the project, explore 
the various alternatives and identify a proposed site for the 
construction or renovation project. In order to identify possible 
environmental concerns and reduce the likelihood of later opposition to 
the project, the grantee should involve other interested parties at this 
stage through public meetings which allow affected or interested parties 
to learn about the need for the action, the scope of the proposed 
action, and any alternatives being considered. These public meetings 
should also provide interested parties an opportunity to express 
comments or concerns about potential consequences of the action. 
Additionally, minority and low-income populations as well as Indian 
tribes that may be affected by the proposal should be consulted at this 
early stage. The grantee should obtain their views on proposed sites and 
mitigation measures as an important step in meeting the environmental 
justice goals of Executive Order 12898.
    (c) Draft environmental assessment. The grantee should prepare an EA 
after

[[Page 403]]

identifying the proposed site, but before reaching a final decision to 
proceed with the effort at that location. The grantee may prepare the EA 
or contract for the preparation of all or parts of the EA. In order to 
adequately assess all of the potential environmental impacts, a multi-
disciplinary team must be used to perform the environmental analysis. 
Any state or local environmental impact review requirements should also 
be incorporated into the EA process. The amount of analysis and detail 
provided must be commensurate with the magnitude of the expected impact. 
At a minimum, an EA should include a brief discussion of the need for 
the proposal, the alternatives considered, the environmental impacts of 
the proposed action and alternatives considered, and a list of agencies 
and persons consulted. VOI/TIS grant funds may be used to pay the costs 
of preparing the environmental assessment.
    (d) OJP's Review of the Draft EA. The Office of Justice Programs 
will review the EA for the following:
    (1) Has the need for the proposed action been established?
    (2) Have the relevant areas of environmental concern been 
identified?
    (3) Have other agencies with an interest been consulted?
    (4) Has the grantee provided opportunities for public involvement?
    (5) Have reasonable alternatives and mitigation measures been 
considered and implemented where possible, including the costs and 
resources to operate the facility?
    (6) Has a convincing case been made that the project as presently 
conceived will have only insignificant impacts on each of the identified 
areas of environmental concern?
    (7) Has the grantee adequately documented compliance with other 
related federal environmental laws and regulations as well as similar 
state and local environmental impact review requirements.
    (e) Draft Finding of No Significant Impact (FONSI) or determination 
that EIS is required. If the EA satisfies all the factors in OJP's 
seven-part review set forth in the previous paragraph, OJP will issue a 
draft FONSI. If OJP's review of the EA results in a response of ``no'' 
to any of the questions, except question 6, then the EA is incomplete 
and will be returned for further work. If the only ``no'' is in response 
to question 6, then OJP will issue a determination requiring an EIS for 
that particular project at that site. Given the cost and time required 
to complete an EIS, the grantee may wish to explore another alternative 
site at this point.
    (f) Circulate EA and draft FONSI for public comment. The grantee 
must provide public notice of availability of a Finding of No 
Significant Impact. The notice must be timed so that interested agencies 
and the public have 30 days for review and comment on the draft EA.
    (g) Review comments and modify plans, as appropriate. The grantee 
must review any public or agency comments received as a result of review 
of the EA and draft FONSI, and should modify its plans, if appropriate. 
Modification may include modifying the project to mitigate the 
environmental impact of the proposed project, or abandoning the proposed 
site and selecting an alternative that will have a less significant 
impact on the environment. The grantee must submit the comments, 
responses to these comments, and any revisions to the proposed plan to 
OJP for review. If the grantee recommends proceeding with the project in 
light of adverse comments on the environmental impact, the grantee must 
include the rationale for its recommendation.
    (h) Final action on EA. Unless a significant environmental impact 
surfaces through the public comments or other means, OJP will issue the 
FONSI and authorize the grantee to begin the purchase of land, the 
bidding process, the development of final plans and specifications, and 
the construction work.



Sec. 91.63  Preparing an Environmental Impact Statement

    (a) Initial determination. OJP will determine whether a proposed 
project may have a significant impact on the quality of the human 
environment, thereby requiring the preparation of an environmental 
impact statement (EIS). This determination will be made either:
    (1) On the basis of an environmental assessment (EA) prepared for 
the proposed project or

[[Page 404]]

    (2) Without the preparation of an EA, but based on the extensive 
size of the proposed facility and the resulting variety of environmental 
impacts, the sensitive environmental nature of the proposed site, and/or 
the existence of highly controversial environmental impacts.
    (b) CEQ regulations. The CEQ regulations in 40 CFR parts 1500 
through 1508 govern the preparation of the EIS. The Corrections Program 
Office's Handbook on Environmental Protection Requirements offers 
further guidance.
    (c) EIS preparation team. (1) Once OJP determines that an EIS is 
needed, the grantee shall notify OJP in writing about the contracting 
method that the grantee will use to complete the EIS. The grantee shall 
establish an EIS preparation team or entity that meets the requirements 
for an interdisciplinary approach. The team must not have any interest, 
financial or otherwise, in the outcome of the proposed projected or any 
related projects.
    (2) If the grantee decides to use an alternate method to contracting 
out for preparation of the EIS (such as using a team of experts from 
various state agencies or a university), the grantee must submit a 
written proposal to OJP demonstrating that the team has the necessary 
interdisciplinary skills and experience in preparing EISs for similar 
projects. The proposal must include a completion schedule demonstrating 
that the alternate method will not result in significant delay. The 
proposal must also document that all members of the team, other than the 
grantee's employees, do not have any interest, financial or otherwise, 
in the outcome of the proposed project or any related projects.
    (3) The grantee must use an OJP-approved statement of work (SOW) in 
conducting the EIS.
    (4) Any consultant or contractor hired by OJP or the grantee to 
prepare an EIS must execute a disclosure statement specifying that it 
has no financial or other interest in the outcome of the project or any 
related projects.
    (d) Notice of intent. OJP will publish a notice in the Federal 
Register to announce its intent to prepare the EIS. The grantee shall be 
responsible for drafting this notice. This notice must state the date, 
time and place of the scoping meeting and briefly describe the purpose 
of the meeting. The grantee should schedule the meeting at least 30 days 
from the date that the grantee submits the draft Federal Register notice 
to OJP.
    (e) Scoping. The scoping process shall be conducted in accordance 
with 40 CFR 1501.7 of the CEQ regulations. The purpose of scoping is to 
identify and consult with affected federal, state and local agencies, 
Indian tribes, interested organizations and persons, including minority 
and low-income populations. The grantee and OPD shall conduct two 
distinct scoping meetings to assist in identifying both major and less 
important issues for the draft EIS. At the end of the scoping process, a 
brief report will be prepared summarizing the results, listing the 
participants, and attaching the meeting minutes.
    (f) Draft EIS. The grantee and OJP will prepare the draft EIS in 
accordance with the requirements of the CEQ regulations in 40 CFR parts 
1500 through 1508. The draft EIS must represent the best analysis 
reasonably possible. The grantee must submit the draft EIS to OJP and 
any cooperating agencies for internal review and comment. The revised 
draft must be submitted to OJP and any cooperating agency for approval.
    (g) Public comment. The grantee, with OJP approval, must establish a 
distribution list and must mail the draft EIS to those parties. OJP will 
then submit the approved draft EIS to the Environmental Protection 
Agency (EPA) and will request EPA to publish a notice of the 
availability of the draft in the Federal Register. The grantee must 
publish a similar notice in a newspaper of general circulation in the 
area of the proposed action. Additionally, the grantee and OJP shall 
conduct a public information meeting to answer questions and receive 
comments on the draft EIS.
    (h) Final EIS. The grantee and OJP will prepare the final EIS, 
including a copy of all comments on the draft and a summary of the 
public information meeting. The grantee shall submit the final EIS to 
OJP and any cooperating agencies for internal review. The grantee and 
OJP will circulate the

[[Page 405]]

final EIS to all parties on the distribution list, to any agency or 
person that requests a copy, and to EPA for publication in the Federal 
Register. The grantee must also announce the availability of the final 
EIS locally.
    (i) Record of decision. When the waiting period for circulation of 
the final EIS expires, OJP shall prepare the record of decision in 
accordance with 40 CFR 1505.2 of the CEQ regulations and in consultation 
with the grantee. This record of decision shall determine the allowable 
uses of the grantee's VOI/TIS fund with respect to the proposed action 
or its alternatives.
    (j) Final action on EIS. In proceeding with the proposed action, the 
grantee must implement any mitigation measures or other conditions 
established in the Record of Decision. As part of any mitigation, the 
grantee must report back to OJP on the status of implementing the 
mitigation.



Sec. 91.64  Supplemental EA or EIS.

    (a) OJP's duty to supplement. OJP shall prepare supplements to 
either completed environmental assessments or draft or final 
environmental impact statements if the grantee proposes to make 
substantial changes in the proposed action that are relevant to 
previously assessed environmental concerns; or there are significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts. Additionally, OJP shall 
include the supplement in its formal administrative record.
    (b) Grantee's duty to supplement. A grantee has a duty to inform OJP 
if it plans to make substantial changes in the proposed action that are 
relevant to environmental concerns; or if it learns of significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts.



Sec. 91.65  Responsible OJP officials.

    (a) Corrections Program Office Director. The Director of the 
Corrections Program Office is primarily responsible for ensuring the 
completion of these procedures and for working with grantees to ensure 
that grantees and subgrantees meet their responsibilities under this 
subpart. The Director also has the authority to execute on behalf of OJP 
all FONSIs required under this subpart.
    (b) Assistant Attorney General. The Assistant Attorney General of 
OJP is responsible for executing all records of decisions resulting from 
the completion of environmental impact statements on projects subject to 
this subpart.



Sec. 91.66  Public participation.

    Environmental impact documents are public documents and the public 
should be provided an opportunity to review and comment on them.
    (a) Early project planning stages. During the early planning stages 
of a project, the grantee should make reasonable efforts to meet with 
the affected public and other interested parties in order to obtain 
their views and any concerns regarding the potential environmental 
impacts of the proposed project.
    (b) Environmental assessment process. (1) Newspaper notice. At a 
minimum, the grantee must provide public notice of the availability of 
the draft EA and draft Finding of No Significant Impact (FONSI) for 
review and comment. The grantee must publish this notice in the non-
legal section of at least two consecutive editions of the newspaper of 
general circulation in the affected community or area. The notice must:
    (i) Explain how and where a copy of the assessment can be accessed 
or obtained for review;
    (ii) Include a request for comments; and
    (iii) Provide at least a thirty-day comment period that begins from 
the date of the last published notice.
    (2) Post Office notice. If the project area is not served by a 
regularly published local or area-wide newspaper, the notice described 
in paragraph (b)(1) of this section must be prominently displayed at the 
local post office.
    (3) Site notice. The grantee must send a copy of the notice to 
owners and occupants of properties that are nearby or directly affected 
by the proposed project. Additionally, the grantee must place or post 
the notice on the site of the proposed project.
    (4) Distribution of the draft EA. At the same time that the grantee 
provides

[[Page 406]]

the public notice of the availability of the EA for review and comment, 
the grantee must mail a copy of the draft EA and FONSI to any 
individuals and groups that have expressed an interest in the planned 
project to either the grantee or OJP and also to appropriate local, 
state, and Federal agencies. OJP will advise the grantee of the 
identities of any parties who have directly requested project 
information from OJP.
    (5) Public information meeting. A public information meeting is not 
required for each environmental assessment. Rather, OJP will decide if a 
public meeting would be helpful in those cases in which the public 
comments either reflect a serious misunderstanding of the proposed 
project and its potential environmental impacts or raise substantial 
questions or issues concerning the content of the draft EA. If OJP 
determines that a meeting is necessary, the grantee must schedule and 
hold a public meeting. An OJP representative will attend.
    (c) EIS process. (1) Scoping meeting. As one of the first steps in 
the preparation of a draft EIS, OJP and the grantee will sponsor a 
public meeting in the area(s) that would be affected by the proposed 
project and the alternative sites under consideration. This meeting is 
referred to as a scoping meeting and is intended to identify the 
proposed project's environmental impacts that are:
    (i) Of most concern to the affected public and local, state, and 
federal agencies and
    (ii) Of least concern to the affected public and agencies.
    (2) Review and comment process for draft EIS. OJP's procedures 
require the grantee to obtain the public's comments on the draft EIS by:
    (i) Publishing a notice of availability of the draft EIS in the 
newspaper(s) serving the area(s) that would be impacted by the proposed 
project and the alternatives sites;
    (ii) Distributing copies of the draft EIS to all interested 
agencies, organizations, and individuals for their review and comment;
    (iii) Holding near the site of the proposed project a public 
information meeting in order to obtain the comments of the attendees; 
and
    (iv) Allowing, at a minimum, a forty-five day review and comment 
period for the draft EIS. Grantees should refer to OJP's Guidance 
Handbook for further information on how to conduct these public review 
and comment procedures.
    (3) Distribution of final EIS. Any interested person or group can 
request a copy of the final EIS and will be provided a copy.

                Other State and Federal Law Requirements



Sec. 91.67  State Environmental Policy Acts.

    (a) Coordination. OJP will coordinate with grantees to ensure that 
any state, local, or tribal environmental impact review requirements 
similar to the Federal NEPA procedures will be met concurrently, to the 
extent possible, through requesting the appropriate non-federal 
agency(ies) to be a joint lead agency(ies). This effort would involve 
joint analyses, public involvement and documentation. Grantees are 
responsible for identifying the application of and informing OJP of 
these state and local requirements.
    (b) Completed analysis. For projects that had state or local 
environmental impact analysis completed prior the implementation of 
these procedures, OJP will review the documents prepared to meet the 
state and local requirements. In order to minimize any duplication of 
analysis, OJP will advise the State on whether additional environmental 
impact review is required.



Sec. 91.68  Compliance with other Federal environmental statutes, regulations and executive orders.

    (a) Other Federal environmental laws. All projects initiated by 
State or local units of government with VOI/TIS grant funding are also 
subject, where applicable, to the environmental impact analysis 
requirements of the following statutes, their implementing regulations, 
and the relevant executive orders:
    (1) Archeological and Historical Preservation Act,
    (2) Coastal Zone Management Act,
    (3) Coastal Barrier Resources Act,
    (4) Clean Air Act,
    (5) Safe Drinking Water Act,

[[Page 407]]

    (6) Federal Water Pollution Control Act,
    (7) Endangered Species Act,
    (8) Wild and Scenic Rivers Act,
    (9) National Historic Preservation Act,
    (10) Wilderness Act,
    (11) Farmland Protection Policy Act,
    (12) Flood Disaster Protection Act
    (13) Executive Order on Floodplain Management,
    (14) Executive Order on Wetland Protection,
    (15) Executive Order on Environmental Justice, and
    (16) Executive Order on Protection and Enhancement of the Cultural 
Environment.
    (b) Combined requirements. Documenting compliance with the 
environmental requirements in paragraph (a) of this section does not 
normally require separate documents or separate processes. Rather, 
documenting compliance with all of these requirements is generally 
accomplished by incorporating them into the NEPA documents. For example, 
one category of environmental impacts that must be addressed in a NEPA 
analysis is potential impacts to historic properties. The National 
Historic Preservation Act, as well as the Advisory Council on Historic 
Preservation's regulations at 36 CFR part 800, also contain Federal 
requirements for addressing the impacts on historic properties from 
Federal actions. In order to avoid duplicate compliance procedures, the 
NEPA document traditionally becomes the process for meeting the 
requirements of both laws.



PART 92--OFFICE OF COMMUNITY ORIENTED POLICING SERVICES (COPS)--Table of Contents




       Subpart A--Police Corps Eligibility and Selection Criteria

Sec.
92.1  Scope.
92.2  Am I eligible to apply to participate in the Police Corps?
92.3  How and when should I apply to participate in the Police Corps?
92.4  How will participants be selected from applicants?
92.5  What educational expenses does the Police Corps cover, and how 
          will they be paid?
92.6  What colleges or universities can I attend under the Police Corps?

            Subpart B--Police Recruitment Program Guidelines

92.7  Scope.
92.8  Providing recruitment services.
92.9  Publicizing the Police Recruitment Program.
92.10  Providing tutorials and other academic assistance programs.
92.11  Content of the recruitment and retention programs.
92.12  Program funding length.
92.13  Program eligibility.

    Authority: 42 U.S.C. 13811-13812; 42 U.S.C. 14091-14102.

    Source: 61 FR 49972, Sept. 24, 1996, unless otherwise noted.



       Subpart A--Police Corps Eligibility and Selection Criteria



Sec. 92.1  Scope.

    This subpart sets forth guidance on the eligibility for and 
selection to participate in the Police Corps. The Police Corps offers 
scholarships and educational expense reimbursements to individuals who 
agree to serve as a State or local police officer or sheriff's deputy 
for four years. In addition, Police Corps participants receive sixteen 
weeks of training in basic law enforcement, including vigorous physical 
and mental training to teach self-discipline and organizational loyalty 
and to impart knowledge and understanding of legal processes and law 
enforcement.



Sec. 92.2  Am I eligible to apply to participate in the Police Corps?

    (a) You should consider applying to the Police Corps if you are 
seeking an undergraduate or graduate degree, and are willing to commit 
to four years of service as a member of a State or local police force. 
To be eligible to participate in a State Police Corps program, an 
individual also must:
    (1) Be a citizen of the United States or an alien lawfully admitted 
for permanent residence in the United States as of the date of 
application;
    (2) Meet the requirements for admission as a trainee of the State or 
local police force to which the participant

[[Page 408]]

will be assigned if selected, including achievement of satisfactory 
scores on any applicable examination, except that failure to meet the 
age requirement for a trainee of the State or local police force shall 
not disqualify the applicant if the applicant will be of sufficient age 
upon completing an undergraduate course of study;
    (3) Possess the necessary mental and physical characteristics to 
discharge effectively the duties of a law enforcement officer;
    (4) Be of good character and demonstrate sincere motivation and 
dedication to law enforcement and public service;
    (5) In the case of an undergraduate, agree in writing that the 
participant will complete an educational course of study leading to the 
award of a baccalaureate degree and will then accept an appointment and 
complete four years of service as an officer in the State police or in a 
local police department within the State;
    (6) In the case of a participant desiring to undertake or continue 
graduate study, agree in writing that the participant will accept an 
appointment and complete 4 years of service as an officer in the State 
police or in a local police department within the State before 
undertaking or continuing graduate study;
    (7) Contract, with the consent of the participant's parent or 
guardian if the participant is a minor, to serve four years as an 
officer in the State police or in a local police department, if an 
appointment is offered; and
    (8) Except as provided in paragraph (a)(8)(i) of this section, be 
without previous law enforcement experience.
    (i) Until September 13, 1999, up to ten percent of the applicants 
accepted into the State Police Corps program may be persons who have had 
some law enforcement experience and/or have demonstrated special 
leadership potential and dedication to law enforcement.
    (b) According to the Debt Collection Procedures Act (Pub. L. 101-647 
as amended), 28 U.S.C. 3201, persons who have incurred a court judgment 
in favor of the United States creating a lien against their property 
arising from a civil or criminal proceeding regarding a debt are 
precluded from receiving Federal funds (including Police Corps funds) 
until the judgment lien has been paid in full or otherwise satisfied.
    (c) Educational assistance under the Police Corps Act for any course 
of study also is available to a dependent child of a law enforcement 
officer:
    (1) Who is a member of a State or local police force or is a Federal 
criminal investigator or uniformed police officer;
    (2) Who is not a participant in the Police Corps program, but
    (3) Who serves in a State for which the Director has approved a 
Police Corps plan, and
    (4) Who is killed in the course of performing policing duties.
    (i) For purposes of this assistance, a dependent child means a 
natural or adopted child or stepchild of a law enforcement officer who 
at the time of the officer's death was no more than 21 years old or, if 
older than 21 years, was in fact dependent on the child's parents for at 
least one-half of the child's support (excluding educational expenses), 
as determined by the Director based on a review of any available 
documentation.
    (ii) The educational assistance available under this subsection is 
subject to the same dollar limitations set forth in Sec. 92.4, but 
carries no police service obligation, repayment contingencies, or 
requirement for approval of a course of study.



Sec. 92.3  How and when should I apply to participate in the Police Corps?

    (a) The application and selection process occurs at the State level. 
An applicant may apply to participate in more than one State Police 
Corps program, provided that the applicant is prepared to commit to 
serve as a law enforcement officer in the State to which application is 
made. Application forms should be obtained from the State Police Corps 
agencies.
    (b) Applicants may seek admission to the Police Corps either before 
commencement of or during the applicant's course of undergraduate or 
graduate study. However, acceptance into the

[[Page 409]]

Police Corps will be conditioned on matriculation in or acceptance for 
admission at a four-year institution of higher education. Specific 
application deadlines will be established by State Police Corps 
agencies.



Sec. 92.4  How will participants be selected from applicants?

    (a) Applicants should be selected competitively based upon selection 
criteria developed by the State Police Corps agency pursuant to this 
subsection. Appropriate application materials should be developed by the 
State Police Corps agency to obtain the information reasonably needed to 
make selection and assignment decisions and to provide required 
information to the Director.
    (b) The State Police Corps agency should develop selection criteria 
in consultation with local law enforcement officials, representatives of 
police labor organizations and police management organizations, and 
other appropriate State and local agencies. Selection criteria should 
seek to attract highly qualified individuals with backgrounds and 
characteristics likely to assure effective participation in the Police 
Corps. Criteria should include consideration of factors bearing on the 
statutory eligibility requirements set forth in Sec. 92.1, and may 
include (without limitation) consideration of:
    (1) Scholastic record;
    (2) Work experience;
    (3) Extracurricular and/or community involvement;
    (4) Letters of recommendation;
    (5) Demonstrated interest in policing as a career.
    (c) After selection, the State Police Corps agency will forward to 
the Director, Office of the Police Corps and Law Enforcement Education a 
list of persons selected for admission to the Police Corps. With respect 
to each person, the list should set forth:
    (1) Name;
    (2) Address;
    (3) Social security number;
    (4) Name and location of law enforcement agency to which the person 
has been assigned;
    (5) Educational institution in which the person is enrolled or has 
been accepted for admission, and course of study;
    (6) Date on which the person is expected to commence his/her 
service;
    (7) Certification that the person has been found to meet the 
statutory selection criteria at 42 U.S.C. Sec. 14096;
    (8) A Police Corps Agreement signed by the applicant; and
    (9) An itemization of the educational expenses that the person is 
eligible to receive through scholarship and/or reimbursement.
    (i) With respect to individuals identified to receive educational 
assistance under Sec. 92.2(c), the list should contain the information 
in paragraphs (c) (1), (2), (3), (5) and (9) of this section.
    (ii) With respect to the list in the aggregate, a summary of the 
racial and gender distribution of the individuals.
    (d) After selection, the State Policy Corps agency should notify 
applicants of their selection, their agency assignment, and their 
assignment to a training class. However, admission to the Police Corps 
is not final until the Police Corps Agreement has been signed both by 
the applicant and the Director.



Sec. 92.5  What educational expenses does the Police Corps cover, and how will they be paid?

    (a) Educational expenses are paid either in the form of a 
scholarship or a reimbursement. Scholarships will be paid where Police 
Corps participants are currently enrolled in an approved course of study 
in an institution of higher education. Reimbursements will be paid to 
participants for educational expenses incurred prior to admission to the 
Police Corps. In certain circumstances, a Police Corps participant may 
receive a reimbursement for past expenses and a scholarship for current 
expenses.
    (b) Requests for payment of educational expenses by a Police Corps 
participant should be submitted to the Director through the State Police 
Corps agency.
    (1) Educational expenses are expenses that are directly attributable 
to a course of education leading to the award of either a baccalaureate 
or graduate degree, and may include:
    (i) Tuition, in an amount billed by the institution of higher 
education;

[[Page 410]]

    (ii) Fees, in an amount billed by the institution of higher 
education;
    (iii) Cost of books required to be purchased pursuant to the 
curriculum in which the candidate is enrolled;
    (iv) Cost of transportation from the candidate's home to school, 
calculated at actual cost or the current prevailing rate for mileage 
reimbursement for federal travel;
    (v) Cost of room and board;
    (vi) Miscellaneous expenses not to exceed $250 per academic 
semester.
    (2) A participant receiving a scholarship may submit payment 
requests prior to the commencement of each subsequent academic year in 
which he/she is enrolled in an institution of higher education.
    (3) For participants currently enrolled in an institution of higher 
education, each payment request must be accompanied by:
    (i) A certification from the institution that the participant is 
maintaining satisfactory academic progress;
    (ii) A certification by or on behalf of the State or local police 
force to which the participant will be assigned that the participant's 
course of study includes appropriate preparation for police service.
    (4) The maximum Police Corps payment per participant per academic 
year, whether in the form of scholarship or reimbursement, is $7,500. In 
the case of a participant who is pursuing a course of educational study 
during substantially an entire calendar year, the maximum payment will 
be $10,000 per such calendar year.
    (5) The total of all Police Corps scholarship or reimbursement 
payments to any one participant shall not exceed $30,000.
    (6) Police Corps scholarship payments will be made directly to the 
institution of higher education that the student is attending. Each 
institution of higher education receiving a Police Corps scholarship 
payment shall remit to such student any funds in excess of the costs of 
tuition, fees, and room and board payable to the institution.
    (7) Reimbursements for past expenses will be made directly to the 
Police Corps participant. One half of the reimbursement will be paid 
after the participant is sworn in and starts the first year of required 
service. The remainder will be paid upon successful completion of the 
first year of required service. The Director may, upon a showing of good 
cause, advance the date of the first reimbursement payment to an 
individual participant.

[61 FR 49972, Sept. 24, 1996, as amended at 64 FR 33018, June 21, 1999]



Sec. 92.6  What colleges or universities can I attend under the Police Corps?

    (a) The choice of institution is up to the participant, as long as 
the institution meets the definition of an ``institution of higher 
deduction.'' As defined in 20 U.S.C. 1141(a), an ``institution of higher 
education'' means an educational institution in any State which:
    (1) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate,
    (2) Is legally authorized within such State to provide a program of 
education beyond secondary education,
    (3) Provides an educational program for which it awards a bachelor's 
degree or provides not less than a two-year program which is acceptable 
for full credit toward such a degree,
    (4) Is a public or other nonprofit institution, and
    (5) Is accredited by a nationally recognized accrediting agency or 
association, or if not so accredited, is an institution that has been 
granted preaccreditation status by such an agency or association that 
has been recognized by the Secretary (of Education) for the granting of 
preaccreditation status, and the Secretary has determined that there is 
satisfactory assurance that the institution will meet the accreditation 
standards of such an agency or association within a reasonable time.
    (b) Such term also includes any school which provides not less than 
a one-year program of training to prepare students for gainful 
employment in a recognized occupation and which meets the provisions of 
paragraphs (a) (1), (2), (4), and (5) of this section. Such term also 
includes a public or nonprofit educational institution in any State 
which, in lieu of the requirement in

[[Page 411]]

paragraph (a)(1) of this section, admits as regular students persons who 
are beyond the age of compulsory school attendance in the State in which 
the institution is located.
    (c) A Police Corps scholarship only may be used to attend a four-
year institution of higher education, except that:
    (1) A scholarship may be used for graduate and professional study; 
and
    (2) If a participant has enrolled in the Police Corps upon or after 
transfer to a four-year institution of higher education, the Director 
may reimburse the participant for prior educational expenses.



            Subpart B--Police Recruitment Program Guidelines

    Source: 63 FR 50146, Sept. 21, 1998, unless otherwise noted.



Sec. 92.7  Scope.

    (a) The Police Recruitment program offers funds to qualified 
community organizations to assist in meeting the costs of programs which 
are designed to recruit and train police applicants from a variety of 
neighborhoods and localities.
    (b) Individual participants encountering problems throughout the 
police department application process shall receive counseling, 
tutorials, and other academic assistance as necessary to assist them in 
the application process of a police department.
    (c) Program goals should include increasing the retention in the 
hiring process for police applicants participating in the program.
    (d) Programs funded under the Police Recruitment program will have a 
one-year grant period, with allowances for two additional years of no-
cost extensions.



Sec. 92.8  Providing recruitment services.

    The non-profit community organizations that wish to receive a grant 
under this program should provide for an overall program design with the 
objective of recruiting and retaining applicants from a variety of 
populations to a police department. The recruitment strategies employed 
may include:
    (a) A process for recruiting applicants for employment by a police 
department. These processes should include working in cooperation with a 
local law enforcement department to develop selection criteria for the 
participants. The selection criteria may include, but are not limited 
to:
    (1) Demonstrated interest in policing as a career;
    (2) Scholastic record (except that failure to meet the satisfactory 
academic scores shall not disqualify the applicant since the program is 
designed to provide tutorial service so to help applicant pass the 
required examinations);
    (3) Background screening;
    (4) Work experience;
    (5) Letters of recommendation.
    (b) The recruitment services must ensure that applicants possess the 
necessary mental and physical capabilities and emotional characteristics 
to be an effective law enforcement officer.



Sec. 92.9  Publicizing the Police Recruitment Program.

    Participating organizations should have experience in or an ability 
to develop procedures to publicize the availability of like programs. 
These programs should be widely publicized throughout the affected 
geographic area. The methods for publicizing the Police Recruitment 
programs may include, but are not limited to:
    (a) Sending press releases to community bulletins, college and local 
newspapers, and television stations, as well as public service 
announcements to local and college radio stations;
    (b) Sending information to and/or making presentations at:
    (1) Local community colleges;
    (2) Colleges and universities serving populations in the geographic 
area of the program;
    (3) Local nonprofit groups;
    (4) Academic counseling departments within public and private 
nonprofit colleges and universities;
    (5) Academic counseling departments within public and private 
nonprofit high schools;
    (6) High school and college student associations;
    (7) Local religious groups;
    (8) Local social services agencies.

[[Page 412]]

    (c) Disseminating press releases and/or translated materials to non-
English language newspapers and magazines; and
    (d) Maintaining toll-free or other easy-access telephone numbers for 
obtaining application materials.



Sec. 92.10  Providing tutorials and other academic assistance programs.

    (a) The program designed by the community organization must include 
academic counseling, tutorials and other academic assistance programs to 
enable individuals to meet police force academic requirements, pass 
entrance examinations, and meet other requirements. The program should 
include:
    (1) Processes for evaluating educational assistance needs of young 
adults and adults. These processes should include, but are not limited 
to: screening procedures and testing batteries to assess individual 
needs;
    (2) Tutorial programs designed to meet the specific and varied 
academic needs of individual applicants; and
    (3) Academic and guidance counseling for adults. Specific counseling 
programs must be designed for individuals who encounter problems with 
passing the entrance examinations, and may include specialized 
counseling in self discipline, study habits, taking written and oral 
exams, and physical fitness.
    (b) These tutorial and academic assistance programs must be provided 
by individuals or groups that have experience in developing and 
providing tutorial programs for young adults and adults.
    (c) The program provider must also have experience in providing 
counseling for participants who encounter other problems with the police 
department application process.



Sec. 92.11  Content of the recruitment and retention programs.

    Applicants must describe in detail the intended program strategies 
for providing academic and guidance counseling activities for members of 
the community, as described in Secs. 92.2 through 92.4. A review of 
mandatory topics to be addressed in a detailed concept paper/application 
to be provided by all applicants follows.
    (a) Applicants must address program strategies for responding to 
program and applicant needs throughout the recruitment process. The 
process should be based on an examination and understanding of the needs 
of the population in meeting the qualification requirements of the 
police department. The project strategy should subsequently be tailored 
based on the understanding of the current and anticipated problems in 
meeting police department requirements.
    (b) Applicants must describe the manner in which academic services 
and tutorials, and guidance counseling programs that would assist 
applicants to pass the entrance examination and related tests will be 
provided. This should also include the anticipated length of the 
academic and guidance counseling programs, qualifications of the 
counselors, and the content of the counseling programs.
    (c) Applicants must provide retention services to assist in keeping 
individuals in the application process of a police department. These may 
include:
    (1) Counseling programs aimed at meeting the needs of potential 
police applicants before they are eligible to apply for a sworn 
position;
    (2) Pre-police employment programs, such as junior police cadet 
programs, reserve programs, and police volunteer activities and
    (3) Mentoring activities utilizing sworn officers.
    (d) Applicants must estimate the number of police applicants to be 
served by the prospective program, along with an estimation of the total 
number of potential or actual applicants who will be successfully hired 
and eventually deployed as police officers.



Sec. 92.12  Program funding length.

    Funding for these programs will be for one year only, but will allow 
for two additional years of no-cost extension.



Sec. 92.13  Program eligibility.

    (a) Eligible organizations for the Police Recruitment program grant 
are certified nonprofit organizations that have training and/or 
experience in:

[[Page 413]]

    (1) Working with a police department and with teachers, counselors, 
and similar personnel;
    (2) Providing services to the community in which the organization is 
located;
    (3) Developing and managing services and techniques to recruit and 
train individuals, and in assisting such individuals in meeting 
requisite standards and provisions;
    (4) Developing and managing services and techniques to assist in the 
retention of applicants to like programs; and
    (5) Developing other programs that contribute to the community.
    (b) A program is qualified to receive a grant if:
    (1) The overall design of the program is to recruit and retain 
applicants to a police department;
    (2) The program provides recruiting services that include tutorial 
programs to enable individuals to meet police force academic 
requirements and to pass entrance examinations;
    (3) The program provides counseling to applicants to police 
departments who may encounter problems throughout the application 
process; and
    (4) The program provides retention services to assist in retaining 
individuals to stay in the application process of the police department.
    (c) To qualify for funding under the Police Recruitment program, the 
intended activities must support the recruitment services, tutorial and 
other academic assistance programs, and retention services for 
individuals. The qualified non-profit organization must submit an 
application which identifies the law enforcement department with which 
it will work and includes documentation showing:
    (1) The need for the grant;
    (2) The intended use of the funds;
    (3) Expected results from the use of grant funds;
    (4) Demographic characteristics of the population to be served, 
including age, disability, race, ethnicity, and languages used;
    (5) Status as a non-profit organization; and
    (6) Contains satisfactory assurances that the program for which the 
grant is made will meet the applicable requirements of the program 
guidelines prescribed in this document.



PART 93--PROVISIONS IMPLEMENTING THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994--Table of Contents




                         Subpart A--Drug Courts

Sec.
93.1  Purpose.
93.2  Statutory authority.
93.3  Definitions.
93.4  Grant authority.
93.5  Exclusion of violent offenders.

Subpart B [Reserved]

    Authority: 42 U.S.C. 3796ii-3796ii-8.

    Source: 60 FR 32105, June 20, 1995, unless otherwise noted.



                         Subpart A--Drug Courts



Sec. 93.1  Purpose.

    This part sets forth requirements and procedures to ensure that 
grants to States, State courts, local courts, units of local government, 
and Indian tribal governments, acting directly or through agreements 
with other public or private entities, exclude violent offenders from 
participation in programs authorized and funded under this part.



Sec. 93.2  Statutory authority.

    This program is authorized under the Violent Crime Control and Law 
Enforcement Act of 1994, Title V, Public Law 103-322, 108 Stat. 1796, 
(September 13, 1994), 42 U.S.C. 3796ii-3796ii-8.



Sec. 93.3  Definitions.

    (a) State has the same meaning as set forth in section 901(a)(2) of 
the Omnibus Crime Control and Safe Streets Act of 1968, as amended.
    (b) Unit of Local Government has the same meaning as set forth in 
section 901(a)(3) of the Omnibus Crime Control and Safe Streets Act of 
1968, as amended.
    (c) Assistant Attorney General means the Assistant Attorney General 
for the Office of Justice Programs.
    (d) Violent offender means a person who either--

[[Page 414]]

    (1) Is currently charged with or convicted of an offense during the 
course of which:
    (i) The person carried, possessed, or used a firearm or other 
dangerous weapon; or
    (ii) There occurred the use of force against the person of another; 
or
    (iii) There occurred the death of, or serious bodily injury to, any 
person; without regard to whether proof of any of the elements described 
herein is required to convict; or
    (2) Has previously been convicted of a felony crime of violence 
involving the use or attempted use of force against a person with the 
intent to cause death or serious bodily harm.



Sec. 93.4  Grant authority.

    (a) The Assistant Attorney General may make grants to States, State 
courts, local courts, units of local government, and Indian tribal 
governments, acting directly or through agreements with other public or 
private entities, for programs that involve:
    (1) Continuing judicial supervision over offenders with substance 
abuse problems who are not violent offenders, and
    (2) The integrated administration of other sanctions and services, 
which shall include--
    (i) Mandatory periodic testing for the use of controlled substances 
or other addictive substances during any period of supervised release or 
probation for each participant;
    (ii) Substance abuse treatment for each participant;
    (iii) Diversion, probation, or other supervised release involving 
the possibility of prosecution, confinement, or incarceration based on 
noncompliance with program requirements or failure to show satisfactory 
progress; and
    (iv) Programmatic, offender management, and aftercare services such 
as relapse prevention, health care, education, vocational training, job 
placement, housing placement, and child care or other family support 
services for each participant who requires such services.
    (b) Applications for grants under this program shall be made at such 
times and in such form as may be specified in guidelines or notices 
published by the Assistant Attorney General. Applications will be 
evaluated according to the statutory requirements of the Act and the 
programmatic goals specified in the applicable guidelines. Grantees must 
comply with all statutory and program requirements applicable to grants 
under this program.



Sec. 93.5  Exclusion of violent offenders.

    (a) The Assistant Attorney General will ensure that grants to 
States, State courts, local courts, units of local government, and 
Indian tribal governments, acting directly or through agreements with 
other public or private entities, exclude violent offenders from 
programs authorized and funded under this part.
    (b) No recipient of a grant made under the authority of this part 
shall permit a violent offender to participate in any program receiving 
funding pursuant to this part.
    (c) Applicants must certify as part of the application process that 
violent offenders will not participate in programs authorized and funded 
under this part. The required certification shall be in such form and 
contain such assurances as the Assistant Attorney General may require to 
carry out the requirements of this part.
    (d) If the Assistant Attorney General determines that one or more 
violent offenders are participating in a program receiving funding under 
this part, such funding shall be promptly suspended, pending the 
termination of participation by those persons deemed ineligible to 
participate under the regulations in this part.
    (e) The Assistant Attorney General may carry out or make 
arrangements for evaluations and request information from programs that 
receive support under this part to ensure that violent offenders are 
excluded from participating in programs hereunder.

Subpart B [Reserved]



PART 97--STANDARDS FOR PRIVATE ENTITIES PROVIDING PRISONER OR DETAINEE SERVICES--Table of Contents




Sec.
97.1  Purpose.
97.2  Definitions.
97.11  Pre-employment screening.

[[Page 415]]

97.12  Employee training.
97.13  Maximum driving time.
97.14  Guard-to-prisoner ratio.
97.15  Employee uniforms and identification.
97.16  Clothing requirements for transported violent prisoners.
97.17  Mandatory restraints to be used while transporting violent 
          prisoners.
97.18  Notification of local law enforcement prior to scheduled stops.
97.19  Immediate notification of local law enforcement in the event of 
          an escape.
97.20  Standards to ensure the safety of violent prisoners during 
          transport.
97.22  No pre-emption of federal, State, or local laws or regulations.
97.24  No civil defense created.
97.30  Enforcement.

    Authority: Pub. L. 106-560, 114 Stat. 2784 (42 U.S.C. 13726b).

    Source: Order No. 2640-2002, 67 FR 78710, Dec. 26, 2002, unless 
otherwise noted.



Sec. 97.1  Purpose.

    This part implements the provisions of The Interstate Transportation 
of Dangerous Criminals Act of 2000, Public Law 106-560, 114 Stat. 2784 
(42 U.S.C. 13726b) (enacted December 21, 2000) (``the Act''), to provide 
minimum security and safety standards for private companies that 
transport violent prisoners on behalf of State and local jurisdictions.



Sec. 97.2  Definitions.

    (a) Crime of violence. The term ``crime of violence'' has the same 
meaning as in section 924(c)(3) of title 18, United States Code. Section 
924(c)(3) states that the term crime of violence means an offense that 
is a felony and has as an element the use, attempted use, or threatened 
use of physical force against the person or property of another, or that 
by its nature, involves a substantial risk that physical force against 
the person or property of another may be used in the course of 
committing the offense.
    (b) Private prisoner transport company. The term ``private prisoner 
transport company'' (``company'') means any entity, other than the 
United States, a State, or an inferior political subdivision of a State, 
that engages in the business of transporting for compensation 
individuals committed to the custody of any State or of an inferior 
political subdivision of a State, or any attempt thereof.
    (c) Violent prisoner. The term ``violent prisoner'' means any 
individual in the custody of a State or an inferior political 
subdivision of a State who has previously been convicted of or is 
currently charged with a crime of violence or any similar statute of a 
State or the inferior political subdivisions of a State, or any attempt 
thereof.



Sec. 97.11  Pre-employment screening.

    Private prisoner transport companies must adopt pre-employment 
screening measures for all potential employees. The pre-employment 
screening measures must include a background check and a test for use of 
controlled substances. The failure of a potential employee to pass 
either screening measure will act as a bar to employment.
    (a) Background checks must include:
    (1) A fingerprint-based criminal background check that disqualifies 
persons with either a prior felony conviction or a State or Federal 
conviction for a misdemeanor crime of domestic violence as defined in 18 
U.S.C. 921;
    (2) A Credit Report check;
    (3) A physical examination; and
    (4) A personal interview.
    (b) Testing for controlled substances. (1) Pre-employment testing 
for controlled substances must be in accordance with applicable State 
law.
    (2) In the event that there is no applicable State law, pre-
employment testing for controlled substances must be in accordance with 
the provisions of Department of Transportation regulations at 49 CFR 
382.301 which will apply regardless of whether a private prisoner 
transport company is covered by Department of Transportation 
regulations.
    (c) The criminal background check references in paragraph (a)(1) of 
this section may not be submitted directly to the FBI or any other 
Federal agency. The private prisoner transport companies must arrange 
the procedures for accomplishing the criminal background checks with 
their contracting governmental agencies. In the event that the private 
prisoner transport company is contracting with a privately run 
incarceration facility, and

[[Page 416]]

not directly with a governmental entity, the private prisoner transport 
company will have to make arrangements through the private incarceration 
facility to have the checks completed by the governmental entity 
ultimately requesting the transport.



Sec. 97.12  Employee training.

    Private prisoner transport companies must require the completion of 
a minimum of 100 hours of employee training before an employee may 
transport violent prisoners. Training must include instruction in each 
of these six areas:
    (a) Use of restraints;
    (b) Searches of prisoners;
    (c) Use of force, including use of appropriate weapons and firearms;
    (d) Cardiopulmonary resuscitation (CPR);
    (e) Map reading; and
    (f) Defensive driving.



Sec. 97.13  Maximum driving time.

    Companies covered under this part must adhere to the maximum driving 
time provisions applicable to commercial motor vehicle operators, as set 
forth in Department of Transportation regulations at 49 CFR 395.3 which 
will apply regardless of whether a private prisoner transport company is 
covered by Department of Transportation regulations.



Sec. 97.14  Guard-to-prisoner ratio.

    Companies covered under this part must adhere to certain minimum 
standards with respect to the number of employees required to monitor 
violent prisoners during transportation. Private prisoner transport 
companies must ensure that at least one guard be on duty for every six 
violent prisoners transported. This requirement does not preclude a 
contracting entity from establishing more stringent guard-to-prisoner 
ratios.



Sec. 97.15  Employee uniforms and identification.

    (a) Employee uniforms. Uniforms used by private prisoner transport 
companies must meet the following requirements:
    (1) Uniforms must be readily distinguishable in style and color from 
official uniforms worn by United States Department of Justice employees 
who transport violent offenders;
    (2) Uniforms must prominently feature a badge or insignia that 
identifies the employee as a prisoner transportation employee; and
    (3) Uniforms must be worn at all times while the employee is engaged 
in the transportation of violent prisoners.
    (b) Employee identification. Identification utilized by private 
prisoner transport companies must meet the following requirements:
    (1) The identification credentials must clearly identify the 
employee as a transportation employee. The credentials must have a 
photograph of the employee that is at least one inch square, a printed 
personal description of the employee including the employee's name, the 
signature of the employee, and date of issuance; and
    (2) The employee must display proper identification credentials on 
his or her uniform and ensure that the identification is visible at all 
times during the transportation of violent prisoners.



Sec. 97.16  Clothing requirements for transported violent prisoners.

    Companies covered under this part must ensure that all violent 
prisoners they transport are clothed in brightly colored clothing that 
clearly identifies them as violent prisoners, unless security or other 
specific considerations make such a requirement inappropriate.



Sec. 97.17  Mandatory restraints to be used while transporting violent prisoners.

    Companies covered under this part must, at a minimum, require that 
violent prisoners be transported wearing handcuffs, leg irons, and waist 
chains unless the use of all three restraints would create a serious 
health risk to the prisoner, or extenuating circumstances (such as 
pregnancy or physical disability) make the use of all three restraints 
impracticable.



Sec. 97.18  Notification of local law enforcement prior to scheduled stops.

    When transporting violent prisoners, private prisoner transport 
companies are required to notify local law enforcement officials 24 
hours in advance

[[Page 417]]

of any scheduled stops in their jurisdiction. For the purposes of this 
part, a scheduled stop is defined as a predetermined stop at a State, 
local, or private correctional facility for the purpose of loading or 
unloading prisoners or using such facilities for overnight, meal, or 
restroom breaks. Scheduled stops do not include routine fuel stops or 
emergency stops.



Sec. 97.19  Immediate notification of local law enforcement in the event of an escape.

    Private prisoner transport companies must be sufficiently equipped 
to provide immediate notification to law enforcement in the event of a 
prisoner escape. Law enforcement officials must receive notification no 
later than 15 minutes after an escape is detected unless the company can 
demonstrate that extenuating circumstances necessitated a longer delay. 
In the event of the escape of a violent prisoner, a private prisoner 
transport company must:
    (a) Ensure the safety and security of the remaining prisoners;
    (b) Provide notification within 15 minutes to the appropriate State 
and local law enforcement officials;
    (c) Provide notification as soon as practicable to the governmental 
entity or the privately run incarceration facility that contracted with 
the transport company; and
    (d) Provide complete descriptions of the escapee and the 
circumstances surrounding the escape to State and local law enforcement 
officials if needed.



Sec. 97.20  Standards to ensure the safety of violent prisoners during transport.

    Companies covered under this section must comply with applicable 
State and federal laws that govern the safety of violent prisoners 
during transport. In addition, companies covered under this section are 
to ensure that:
    (a) Protective measures are in place to ensure that all vehicles are 
safe and well-maintained;
    (b) Vehicles are equipped with efficient communications systems that 
are capable of immediately notifying State and local law enforcement 
officials in the event of a prisoner escape;
    (c) Policies, practices, and procedures are in effect to ensure the 
health and physical safety of the prisoners during transport, including 
a first-aid kit and employees who are qualified to dispense medications 
and administer CPR and emergency first-aid;
    (d) Policies, practices, and procedures are in effect to prohibit 
the mistreatment of prisoners, including prohibitions against covering a 
prisoner's mouth with tape, the use of excessive force, and sexual 
misconduct;
    (e) Policies, practices, and procedures are in effect to ensure that 
juvenile prisoners are separated from adult prisoners during 
transportation, where practicable;
    (f) Policies, practices, and procedures are in effect to ensure that 
female prisoners are separated from male prisoners during 
transportation, where practicable;
    (g) Policies, practices, and procedures are in effect to ensure that 
female guards are on duty to supervise the transportation of female 
violent prisoners, where practicable;
    (h) Staff are well trained in the handling and restraint of 
prisoners, including the proper use of firearms and other restraint 
devices, and have received specialized training in the area of sexual 
harassment; and
    (i) Private transport companies are responsible for taking 
reasonable measures to insure the well being of the prisoners in their 
custody including, but not limited to, necessary stops for restroom use 
and meals, proper heating and ventilation of the transport vehicle, 
climate-appropriate uniforms, and prohibitions on the use of tobacco, in 
any form, in the transport vehicle.



Sec. 97.22  No pre-emption of federal, State, or local laws or regulations.

    The regulations in this part implement the Act and do not pre-empt 
any applicable federal, State, or local law that may impose additional 
obligations on private prisoner transport companies or otherwise 
regulate the transportation of violent prisoners. All federal laws and 
regulations governing interstate commerce will continue to apply to 
private prisoner transport companies including, but not limited

[[Page 418]]

to: federal laws regulating the possession of weapons, Federal Aviation 
Administration or Transportation Security Administration rules and 
regulations governing travel on commercial aircraft, and all applicable 
federal, State, or local motor carrier regulations. The regulations in 
this part in no way pre-empt, displace, or affect the authority of 
States, local governments, or other federal agencies to address these 
issues.



Sec. 97.24  No civil defense created.

    The regulations in this part on private prisoner transport companies 
are not intended to create a defense to any civil action, whether 
initiated by a unit of government or any other party. Compliance with 
the regulations in this part is not intended to and does not establish a 
defense against an allegation of negligence or breach of contract. 
Regardless of whether a contractual agreement establishes minimum 
precautions, the companies affected by the regulations in this part will 
remain subject to the standards of care that are imposed by 
constitutional, statutory, and common law upon their activities (or 
other activities of a similarly hazardous nature).



Sec. 97.30  Enforcement.

    Any person who is found in violation of the regulations in this part 
will:
    (a) Be liable to the United States for a civil penalty in an amount 
not to exceed $10,000 for each violation;
    (b) Be liable to the United States for the costs of prosecution; and
    (c) Make restitution to any entity of the United States, of a State, 
or of an inferior political subdivision of a State, that expends funds 
for the purpose of apprehending any violent prisoner who escapes from a 
prisoner transport company as the result, in whole or in part, of a 
violation of the regulations in this part promulgated pursuant to the 
Act.



PART 100--COST RECOVERY REGULATIONS, COMMUNICATIONS ASSISTANCE FOR LAW ENFORCEMENT ACT OF 1994--Table of Contents




Sec.
100.9   General.
100.10  Definitions.
100.11  Allowable costs.
100.12  Reasonable costs.
100.13  Directly assignable costs.
100.14  Directly allocable costs.
100.15  Disallowed costs.
100.16  Cost estimate submission.
100.17  Request for payment.
100.18  Audit.
100.19  Adjustments to agreement estimate.
100.20  Confidentiality of trade secrets/proprietary information.
100.21  Alternative dispute resolution.

    Authority: 47 U.S.C. 1001-1010; 28 CFR 0.85(o).

    Source: 62 FR 13324, Mar. 20, 1997, unless otherwise noted.



Sec. 100.9  General.

    These Cost Recovery Regulations were developed to define allowable 
costs and establish reimbursement procedures in accordance with section 
109(e) of Communications Assistance for Law Enforcement Act (CALEA) 
(Public Law 103-414, 108 Stat. 4279, 47 U.S.C. 1001-1010). Reimbursement 
of costs is subject to the availability of funds, the reasonableness of 
costs, and an agreement by the Attorney General or designee to reimburse 
costs prior to the carrier's incurrence of said costs.



Sec. 100.10  Definitions.

    Allocable means chargeable to one or more cost objectives and can be 
distributed to them in reasonable proportion to the benefits received.
    Business unit means any segment of an organization for which cost 
data are routinely accumulated by the carrier for tracking and 
measurement purposes.
    Cooperative agreement means the legal instrument reflecting a 
relationship between the government and a party when--
    (1) The principal purpose of the relationship is to reimburse the 
carrier to carry out a public purpose of support

[[Page 419]]

or stimulation authorized by a law of the United States; and
    (2) Substantial involvement is expected between the government and 
carrier when carrying out the activity contemplated in the agreement.
    Cost element means a distinct component or category of costs (e.g. 
materials, direct labor, allocable direct costs, subcontracting costs, 
other costs) which is assigned to a cost objective.
    Cost objective means a function, organizational subdivision, 
contract, or other work unit for which cost data are desired and for 
which provision is made to accumulate and measure the cost of processes, 
products, jobs, capitalized projects, etc.
    Cost pool means groupings of incurred costs identified with two or 
more cost objectives, but not identified specifically with any final 
cost objective.
    Direct supervision means immediate or first-level supervision.
    Directly allocable cost means any cost that is directly chargeable 
to one or more cost objectives and can be distributed to them in 
reasonable proportion to the benefits received.
    Directly assignable cost means any cost that can be wholly 
attributed to a cost objective.
    Directly associated cost means any directly assignable cost or 
directly allocable cost which is generated solely as a result of 
incurring another cost, and which would not have been incurred had the 
said cost not been incurred.
    Final cost objective means a cost objective that has allocated to 
it, both assignable and allocable costs and, in the carrier's 
accumulation system, is one of the final accumulation points.
    Installed or deployed means that, on a specific switching system, 
equipment, facilities, or services are operable and available for use by 
the carrier's customers.
    Labor cost means the sum of the payroll cost, payroll taxes, and 
directly associated benefits.
    Network operations costs means all directly associated costs related 
to the ongoing management and maintenance of a telecommunications 
carrier's network.
    Plant costs means the directly associated costs related to the 
modifications of specific kinds of telecommunications plants, such as 
switches, intelligent peripherals and other network elements. These 
costs shall include the costs of inspecting, testing and reporting on 
the condition of telecommunications plant to determine the need for 
replacements, rearranges and changes; rearranging and changing the 
location of plant not retired; inspecting after modifications have been 
made; the costs of modifying equipment records, such as administering 
trunking and circuit layout work; modifying operating procedures; 
property held for future telecommunications use; provisioning costs; 
network operations costs; and receiving training to perform plant work. 
Also included are the costs of direct supervision and office support of 
this work.
    Provisioning costs means all costs directly associated with the 
resources expended within a telecommunications carrier's network to 
provide a connection and/or service to an end user of the 
telecommunications service.
    Trade secrets/proprietary information means information which is in 
the possession of a carrier but not generally available to the public, 
which that carrier desires to protect against unrestricted disclosure or 
competitive use, and which is clearly identified as such at the time of 
its disclosure to the government.
    Unit cost means the directly associated cost of a single unit of a 
good or service which is included in a cost element.



Sec. 100.11  Allowable costs.

    (a) Costs that are eligible for reimbursement under section 109(e) 
CALEA are:
    (1) All reasonable plant costs directly associated with the 
modifications performed by carriers in connection with equipment, 
facilities, and services installed or deployed on or before January 1, 
1995, to establish the capabilities necessary to comply with section 103 
of CALEA, until the equipment, facility, or service is replaced or 
significantly upgraded or otherwise undergoes major modifications;
    (2) Additional reasonable plant costs directly associated with 
making the assistance capability requirements found

[[Page 420]]

in section 103 of CALEA reasonably achievable with respect to equipment, 
facilities, or services installed or deployed after January 1, 1995, in 
accordance with the procedures established in CALEA section 109(b); and
    (3) Reasonable plant costs directly associated with modifications to 
any of a carrier's systems or services, as identified in the Carrier 
Statement required by CALEA section 104(d), that do not have the 
capacity to accommodate simultaneously the number of interceptions, pen 
registers, and trap and trace devices set forth in the Capacity 
Notice(s) published in accordance with CALEA section 104.
    (b) Allowable plant costs shall include:
    (1) The costs of installation, inspection, and testing of the 
telecommunications plant, and inspection after modifications have been 
made; and
    (2) The costs of direct supervision and office support for this work 
for plant costs.
    (c) In the case of any modification that may be used for any purpose 
other than lawfully authorized electronic surveillance by a government 
law enforcement agency, this part permits recovery of only the 
incremental cost of making the modification suitable for such law 
enforcement purposes.
    (d) Reasonable costs that are directly associated with the 
modifications performed by a carrier as described in Sec. 100.11(a) are 
recoverable. These allowable costs are limited to directly assignable 
and directly allocable costs incurred by the business units whose 
efforts are expended on the implementation of CALEA requirements.



Sec. 100.12  Reasonable costs.

    (a) A cost is reasonable if, in its nature and amount, it does not 
exceed that which would be incurred by a prudent person in the conduct 
of competitive business. Reasonableness of specific costs must be 
examined with particular care in connection with the carrier or its 
separate divisions that may not be subject to effective competitive 
restraints.
    (1) No presumption of reasonableness shall be attached to the 
incurrence of costs by a carrier.
    (2) The burden of proof shall be upon the carrier to justify that 
such cost is reasonable under this part.
    (b) Reasonableness depends upon considerations and circumstances, 
including, but not limited to:
    (1) Whether a cost is of the type generally recognized as ordinary 
and necessary for the conduct of the carrier's business or the 
performance of this obligation; or
    (2) Whether it is a generally accepted sound business practice, 
arm's-length bargaining or the result of Federal or State laws and/or 
regulations.
    (c) It is the carrier's responsibility to inform the Government of 
any deviation from the carrier's established practices.



Sec. 100.13  Directly assignable costs.

    (a) A cost is directly assignable to the CALEA compliance effort if 
it is a plant cost incurred specifically to meet the requirements of 
CALEA sections 103 and 104.
    (1) A cost which has been incurred for the same purpose, in like 
circumstances, and which has been included in any allocable cost pool to 
be assigned to any final cost objective other than the CALEA compliance 
effort, shall not be assigned to the CALEA compliance effort (or any 
portion thereof).
    (2) Costs identified specifically with the work performed are 
directly assignable costs to be charged directly to the CALEA compliance 
effort. All costs specifically identified with other projects, business 
units, or cost objectives of the carrier shall not be charged to the 
CALEA compliance effort, directly or indirectly.
    (3) The burden of proof shall be upon the carrier to justify that 
such cost is an assignable cost under this part.
    (b) For reasons of practicality, any directly assignable cost may be 
treated as a directly allocable cost if the accounting treatment is 
consistently applied within the carrier's accounting system and the 
application produces substantially the same results as treating the cost 
as a directly assignable cost.

[[Page 421]]



Sec. 100.14  Directly allocable costs.

    (a) A cost is directly allocable to the CALEA compliance effort:
    (1) If it is a plant cost incurred specifically to meet the 
requirements of CALEA sections 103 and 104; or
    (2) If it benefits both the CALEA compliance effort and other work, 
and can be distributed to them in reasonable proportion to the benefits 
received.
    (b) The burden of proof shall be upon the carrier to justify that 
such cost is an allocable cost under this part.
    (c) An allocable cost shall not be assigned to the CALEA compliance 
effort if other costs incurred for the same purpose in like 
circumstances have been included as a direct cost of that, or any other, 
cost objective.
    (d) The accumulation of allocable costs shall be as follows:
    (1) Allocable costs shall be accumulated by logical cost groupings 
with due consideration of the reasons for incurring such costs.
    (i) Each grouping should be determined so as to permit distribution 
of the grouping on the basis of the benefits accruing to the multiple 
cost objectives.
    (ii) Similarly, the particular case may require subdivision of these 
groupings (e.g., building occupancy costs might be separable from those 
of personnel administration within the engineering group).
    (2) Such allocation necessitates selecting a distribution base 
common to all cost objectives to which the grouping is to be allocated. 
The base should be selected so as to permit allocation of the grouping 
on the basis of the benefits accruing to the multiple cost objectives.
    (3) When substantially the same results can be achieved through less 
precise methods, the number and composition of cost groupings should be 
governed by practical considerations and should not unduly complicate 
the allocation.
    (4) Once a methodology for determining an appropriate base for 
distributing allocable costs has been agreed to, it shall not be 
modified without written approval of the FBI, if that modification 
affects the level of reimbursement from the government. All items 
properly includable in an allocable cost base should bear a pro rata 
share of allocable costs irrespective of their acceptance as 
reimbursable under this part.
    (5) The carrier's method of allocating allocable costs shall be in 
accordance with the accounting principles used by the carrier in the 
preparation of their externally audited financial statements and 
consistently applied, to the extent that the expenses are allowable 
under there regulations. The method may require further examination 
when:
    (i) Substantial differences occur between the cost patterns of work 
under CALEA compliance effort and the carrier's other work;
    (ii) Significant changes occur in the nature of the business, the 
extent of subcontracting, fixed-asset improvement programs, inventories, 
the volume of sales and production, manufacturing processes, the 
carrier's products, or other relevant circumstances; or
    (iii) Allocable cost groupings developed for a carrier's primary 
location are applied to off-site locations. Separate cost groupings for 
costs allocable to off-site locations may be necessary to permit 
equitable distribution of costs on the basis of the benefits accruing to 
the multiple cost objectives.
    (6) The base period for allocating allocable costs is the cost 
accounting period during which such costs are incurred and accumulated 
for distribution to work performed in that period. The base period for 
allocating allocable costs will normally be the carrier's fiscal year. A 
shorter period may be appropriate when performance involves only a minor 
portion of the fiscal year, or when it is general practice to use a 
shorter period. When the compliance effort is performed over an extended 
period, as many base periods shall be used as are required to accurately 
represent the period of performance.



Sec. 100.15  Disallowed costs.

    (a) General and Administrative (G&A) costs are disallowed. G&A costs 
include, but are not limited to, any management, financial, and other 
expenditures which are incurred by or allocated to a business unit as a 
whole. These include, but are not limited to:

[[Page 422]]

    (1) Accounting and Finance, External Relations, Human Resources, 
Information Management, Legal, Procurement; and
    (2) Other general administrative activities such as library 
services, food services, archives, and general security investigation 
services.
    (b) Customer Service costs are disallowed. These costs include, but 
are not limited to, any Marketing, Sales, Product Management, and 
Advertising expenses.
    (c) Plant costs that are not directly associated with the 
modifications identified in Sec. 100.11 are disallowed. These include, 
but are not limited to, repairing materials for reuse, performing 
routine work to prevent trouble; expenses related to property held for 
future telecommunications use; provisioning costs; network operations 
costs; and depreciation and amortization expenses.
    (d) Costs that have already been recovered from any governmental or 
nongovernmental entity are disallowed.
    (e) Costs that cannot be either directly assigned or directly 
allocated are disallowed.
    (f) Additional costs that are incurred due to the carrier's failure 
to complete the CALEA compliance effort in the time frame agreed to by 
the government and the carrier are disallowed.
    (g) Costs associated with modifications of any equipment, facility 
or service installed or deployed after January 1, 1995 which are deemed 
reasonably achievable by the Federal Communications Commission under 
section 109(b) of CALEA are disallowed.
    (h) To ensure that the Government does not reimburse carriers for 
disallowed costs, the following provisions are included:
    (1) Costs that are expressly disallowed or mutually agreed to be 
disallowed, including mutually agreed to be disallowed directly 
associated costs, shall be excluded from any billing, claim, or proposal 
applicable to reimbursement under CALEA. When a disallowed cost is 
incurred, its directly associated costs are also disallowed.
    (2) Disallowed costs involved in determining rates used for standard 
costs, or for allocable cost proposals or billing, need be identified 
only at the time rates are proposed, established, revised, or adjusted. 
These requirements may be satisfied by any form of cost identification 
which is adequate for purposes of cost determination and verification.



Sec. 100.16  Cost estimate submission.

    (a) The carrier shall provide sufficient cost data at the time of 
proposal submission to allow adequate analysis and evaluation of the 
estimated costs. The FBI reserves the right to request additional cost 
data from carriers in order to ensure compliance with this part.
    (b) The requirement for submission of cost data is met if, as 
determined by the FBI, all cost data reasonably available to the carrier 
are either submitted or identified in writing by the date of agreement 
on the costs.
    (c) If cost data and information to explain the estimating process 
are required by the FBI and the carrier refuses to provide necessary 
data, or the FBI determines that the data provided are so deficient as 
to preclude adequate analysis and evaluation, the FBI will attempt to 
obtain the data and/or elicit corrective action.
    (d) Instructions for submission of the cost data for the estimate 
are as follows:
    (1) The carrier shall submit to the FBI estimated costs by line item 
with supporting information.
    (2) A cost element breakdown as described in Sec. 100.16(h) shall be 
attached for each proposed line item.
    (3) Supporting breakdowns shall be furnished for each cost element, 
consistent with the carrier's cost accounting system.
    (4) When more than one line item is proposed, summary total amounts 
covering all line items shall be furnished for each cost element.
    (5) Depending on the carrier's accounting system, the carrier shall 
provide breakdowns for the following categories of cost elements, as 
applicable:
    (i) Materials. Provide a consolidated cost summary of individual 
material quantities included in the various tasks, orders, or agreement 
line items being proposed and the basis upon which they were developed 
(vendor quotes, invoice prices, etc.). Include

[[Page 423]]

raw materials, parts, software, components, and assemblies. For all 
items proposed, identify the item, source, quantity, and cost.
    (ii) Direct labor. Provide a time-phased (e.g., monthly, quarterly) 
breakdown of labor hours, rates, and costs by appropriate category, and 
furnish the methodologies used in developing estimates.
    (iii) Allocable direct costs. Indicate how allocable costs are 
computed and applied, including cost breakdowns that provide a basis for 
evaluating the reasonableness of proposed rates.
    (iv) Subcontracting costs. For any subcontractor costs submitted for 
reimbursement, the carrier is responsible for ensuring that 
documentation requirements set forth herein are passed on to any and all 
subcontractors utilized in the carrier's efforts to meet CALEA 
requirements.
    (v) Other costs. List all other costs not otherwise included in the 
categories described above (e.g., special tooling, travel, computer and 
consultant services) and provide bases for costs.
    (e) As part of the specific information required, the carrier shall 
submit with its cost estimate and clearly identify as such, costs that 
are verifiable and factual. In addition, the carrier shall submit 
information reasonably required to explain its estimating process, 
including:
    (1) The judgmental factors applied, such as trends or budgetary 
data, and the mathematical or other methods used in the estimate, 
including those used in projecting from known data; and
    (2) The nature and amount of any contingencies included in the 
proposed estimate.
    (f) There is a clear distinction between submitting cost data and 
merely making available books, records, and other documents without 
identification. The requirement for submission of cost data is met when 
all accurate cost data reasonably available to the carrier have been 
submitted, either actually or by specific identification, to the FBI.
    (g) In submitting its estimate, the carrier must include an index, 
appropriately referenced, of all the cost data and information 
accompanying or identified in the estimate. In addition, any future 
additions and/or revisions, up to the date of agreement on the costs, 
must be annotated in a supplemental index.
    (h) Headings for submission are as follows:
    (1) Total Project Cost: Summary.
    (i) Cost Elements (Enter appropriate cost elements.)
    (ii) Proposed Cost Estimate--Total Cost (Enter those necessary and 
reasonable costs that in the carrier's judgment will properly be 
incurred in efficient completion of CALEA requirements. When any of the 
costs in this have already been incurred (e.g., under a letter 
contract), describe them on an attached supporting schedule.)
    (iii) Proposed Cost Estimate--Unit Cost (Enter the unit costs for 
each cost element.)
    (iv) Supporting Material (Identify the attachment in which the 
information supporting the specific cost element may be found.)
    (2) Total Project Costs: Detail (at Switch Level or Project Level, 
as appropriate).
    (i) Cost Elements (Enter appropriate cost elements.)
    (ii) Proposed Cost Estimate--Total Cost (Enter those necessary and 
reasonable costs that in the carrier's judgment will properly be 
incurred in efficient completion of CALEA requirements. When any of the 
costs in this have already been incurred (e.g., under a letter 
contract), describe them on an attached supporting schedule.)
    (iii) Proposed Cost Estimate--Unit Cost (Enter the unit costs for 
each cost element.)
    (iv) Supporting Material (Identify the attachment in which the 
information supporting the specific cost element may be found.)



Sec. 100.17  Request for payment.

    (a) The carrier shall provide sufficient supporting documentation at 
the time of submission of request for payment to allow adequate analysis 
and evaluation of the incurred costs. The FBI reserves the right to 
request additional cost data from carriers in order to ensure compliance 
with this part.

[[Page 424]]

    (b) Instructions for submission of the supporting documentation for 
the request for payment are as follows:
    (1) The carrier shall submit to the FBI incurred costs by line item 
with supporting information.
    (2) A cost element breakdown as described in Sec. 100.17(f) shall be 
attached for each agreed upon line item.
    (3) Supporting breakdowns shall be furnished for each cost element, 
consistent with the carrier's cost accounting system.
    (c) When more than one line item has been agreed upon, summary total 
amounts covering all line items shall be furnished for each cost 
element. Depending on the carrier's accounting system, breakdowns shall 
be provided to the FBI for the following categories of cost elements, as 
applicable:
    (1) Materials. Provide a consolidated cost summary of individual 
material quantities included in the various tasks, orders, or agreement 
line items and the basis upon which they were determined (vendor 
invoices, time sheets, payroll records, etc.). Include raw materials, 
parts, software, components, and assemblies. For all reimbursable items, 
identify the item, source, quantity, and cost.
    (2) Direct labor. Provide a breakdown of labor hours, rates, and 
cost by appropriate category, and furnish the methodologies used in 
identifying these costs. Have available for audit, in accordance with 
Sec. 100.18, time sheet and labor rate calculation justification for all 
direct labor charged to the agreement.
    (3) Allocable direct costs. Indicate how allocable costs are 
computed and applied, including cost breakdowns, comparing estimates to 
actual data as a basis for evaluating the reasonableness of actual 
costs.
    (4) Subcontracting costs. For any subcontractor costs submitted for 
reimbursement, along with a copy of the invoice, the carrier must have 
available for audit in accordance with Sec. 100.18, documentation that 
costs incurred are just and reasonable.
    (5) Other costs. List all other costs not otherwise included in the 
categories described above (e.g., special tooling, travel, computer and 
consultant services) and have available for audit in accordance with 
Sec. 100.18, documentation that costs incurred are just and reasonable.
    (d) There is a clear distinction between submitting cost data and 
merely making available books, records, and other documents without 
identification.
    (1) The requirement for submission of cost data is met when all 
accurate cost data reasonably available to the carrier have been 
submitted, either actually or by specific identification of the data 
that are available for review in the carrier's files, to the FBI.
    (2) Should later information which affects the level of 
reimbursement come into the carrier's possession, it must be promptly 
submitted to the FBI.
    (3) The requirement for submission of cost data continues up to the 
time of final reimbursement.
    (e) In submitting its invoice, the carrier must include an index, 
which cross references the actual cost data submitted with the cost 
estimate.
    (f) Headings for submission are as follows:
    (1) Total Project Cost: Summary.
    (i) Cost Elements (Enter appropriate cost elements.)
    (ii) Actual Costs Incurred--Total Cost (Enter those necessary and 
reasonable costs that were incurred in the efficient completion of CALEA 
requirements.)
    (iii) Actual Costs Incurred--Unit Cost (Enter the unit costs for 
each cost element.)
    (iv) Supporting Material (Identify the attachment in which the 
information supporting the specific cost element may be found.)
    (2) Total Project Costs: Detail (at Switch Level or Project Level, 
as appropriate.)
    (i) Cost Elements (Enter appropriate cost elements.)
    (ii) Actual Costs Incurred--Total Cost (Enter those necessary and 
reasonable costs that were incurred in the efficient completion of CALEA 
requirements.)
    (iii) Actual Costs Incurred--Unit Cost (Enter the unit costs for 
each cost element.)

[[Page 425]]

    (iv) Supporting Material (Identify the attachment in which the 
information supporting the specific cost element may be found.)



Sec. 100.18  Audit.

    (a) General. In order to evaluate the accuracy, completeness, and 
timeliness of the cost data, the FBI or other representatives of the 
Government shall have the right to examine and audit all of the 
carrier's supporting materials.
    (1) These materials include, but are not limited to books, records, 
documents, and other data, regardless of form (e.g., machine readable 
media such as disk, tape) or type (e.g., data bases, applications 
software, data base management software, utilities), including 
computations and projections related to proposing, negotiating, costing, 
or performing CALEA compliance efforts or modifications.
    (2) The right of examination shall extend to all documents necessary 
to permit adequate evaluation of the cost data submitted, along with the 
computations and projections used.
    (b) Audits of request for payment. The carrier shall maintain and 
the FBI or representatives of the Government shall have the right to 
examine and audit supporting materials.
    (1) These materials include, but are not limited to, books, records, 
documents, and other evidence and accounting procedures and practices, 
regardless of form (e.g., machine readable media such as disk, tape) or 
type (e.g., date bases, applications software, data base management 
software, utilities), sufficient to reflect properly all costs claimed 
to have been incurred, or anticipated to be incurred, in performing the 
CALEA compliance effort.
    (2) This right of examination shall include inspection at all 
reasonable times of the carrier's plants, or parts of them, engaged in 
performing the effort.
    (c) Reports. If the carrier is required to furnish cost, funding, or 
performance reports, the FBI or representatives of the Government shall 
have the right to examine and audit books, records, other documents, and 
supporting materials, for the purpose of evaluating the effectiveness of 
the carrier's policies and procedures to produce data compatible with 
the objectives of these reports and the data reported.
    (d) Availability. The carrier shall make available at its office at 
all reasonable times the costs and support material described herein, 
for examination, audit, or reproduction, until three (3) years after 
final reimbursement payment. In addition,
    (1) If the CALEA compliance effort is completely or partially 
terminated, the records relating to the work terminated shall be made 
available for three (3) years after any resulting final termination 
settlement; and
    (2) Records relating to appeals, litigation or the settlement of 
claims arising under or relating to the CALEA compliance effort shall be 
made available until such appeals, litigation, or claims are disposed 
of.
    (e) Subcontractors. The carrier shall ensure that all terms and 
conditions herein are incorporated in any agreement with a subcontractor 
that may be utilized by the carrier to perform any or all portions of 
the agreement.



Sec. 100.19  Adjustments to agreement estimate.

    (a) Adjustments prior to the incurrence of a cost. (1) In accordance 
with Sec. 100.17(d)(2), the carrier shall notify the FBI when any change 
affecting the level of reimbursement occurs.
    (2) Upon such notification, if the adjustment results in an increase 
in the estimated reimbursement, the FBI will review the submission and 
determine if
    (i) Funds are available;
    (ii) The adjustment is justified and necessary to accomplish the 
goals of the agreement; and
    (iii) It is in the best interest of the government to approve the 
expenditure.
    (3) The FBI will provide the decision as to the acceptability of any 
increase to the carrier in writing.
    (b) Adjustments after the incurrence of a cost. Any cost incurred 
that exceeds the provision in Sec. 100.16(e)(2) will be reviewed by the 
FBI to determine reasonability, allowability, and if it is in the best 
interest of the government to approve the expenditure for reimbursement.
    (c) Reduction for defective cost data. (1) The cost shall be reduced 
accordingly

[[Page 426]]

and the agreement shall be modified to reflect the reduction if any cost 
estimate negotiated in connection with the CALEA compliance effort, or 
any cost reimbursable under the effort is increased because:
    (i) The carrier or a subcontractor furnished cost data to the 
government that were not complete, accurate, and current;
    (ii) A subcontractor or prospective subcontractor furnished the cost 
data to the carrier that were not complete, accurate, and current; or
    (iii) Any of these parties furnished data of any description that 
were not accurate.
    (2) Any reduction in the negotiated cost under Sec. 100.19(c)(1) due 
to defective data from a prospective subcontractor that was not 
subsequently awarded the subcontract shall be limited to the amount by 
which either the actual subcontract or the actual cost to the carrier, 
if there was no subcontract, was less than the prospective subcontract 
cost estimate submitted by the carrier, provided that the actual 
subcontract cost was not itself affected by defective cost data.
    (3) If the FBI determines under Sec. 100.19(c)(1) that a cost 
reduction should be made, the carrier shall not raise the following 
matters as a defense:
    (i) The carrier or subcontractor was a sole source supplier or 
otherwise was in a superior bargaining position and thus the costs of 
the agreement would not have been modified even if accurate, complete, 
and current cost data had been submitted;
    (ii) The FBI should have known that the cost data at issue were 
defective even though the carrier or subcontractor took no affirmative 
action to bring the character of the data to the attention of the FBI;
    (iii) The carrier or subcontractor did not submit accurate cost 
data. Except as prohibited, an offset in an amount determined 
appropriate by the FBI based upon the facts shall be allowed against the 
cost reimbursement of an agreement amount reduction if the carrier 
certifies to the FBI that, to the best of the carrier's knowledge and 
belief, the carrier is entitled to the offset in the amount requested 
and the carrier proves that the cost data were available before the date 
of agreement on the cost of the agreement (or cost of the modification) 
and that the data were not submitted before such date. An offset shall 
not be allowed if the understated data were known by the carrier to be 
understated when the agreement was signed; or the Government proves that 
the facts demonstrate that the agreement amount would not have increased 
even if the available data had been submitted before the date of 
agreement on cost; or
    (4) In the event of an overpayment, the carrier shall be liable to 
and shall pay the United States at that time such overpayment as was 
made, with simple interest on the amount of such overpayment to be 
computed from the date(s) of overpayment to the carrier to the date the 
Government is repaid by the carrier at the applicable underpayment rate 
effective for each quarter prescribed by the Secretary of the Treasury 
under 26 U.S.C. 6621(a)(2).



Sec. 100.20  Confidentiality of trade secrets/proprietary information.

    With respect to any information provided to the FBI under this part 
that is identified as company proprietary information, it shall be 
treated as privileged and confidential and only shared within the 
government on a need-to-know basis. It shall not be disclosed outside 
the government for any reason inclusive of Freedom of Information 
requests, without the prior written approval of the company. Information 
provided will be used exclusively for the implementation of CALEA. This 
restriction does not limit the government's right to use the information 
provided if obtained from any other source without limitation.



Sec. 100.21  Alternative dispute resolution.

    (a) If an impasse arises in negotiations between the FBI and the 
carrier which precludes the execution of a cooperative agreement, the 
FBI will consider using mediation with the goal of achieving, in a 
timely fashion, a consensual resolution of all outstanding issues 
through facilitated negotiations.

[[Page 427]]

    (b) Should the carrier agree to mediation, the costs of that 
mediation process shall be shared equally by the FBI and the carrier.
    (c) Each mediation shall be governed by a separate mediation 
agreement prepared by the FBI and the carrier.



PART 104--SEPTEMBER 11TH VICTIM COMPENSATION FUND OF 2001--Table of Contents




                     Subpart A--General; Eligibility

104.1   Purpose.
104.2   Eligibility definitions and requirements.
104.3   Other definitions.
104.4   Personal Representative.
104.5   Foreign claims.
104.6   Amendments to this part.

  Subpart B--Filing for Compensation; Application for Advance Benefits

104.21   Filing for compensation.
104.22   Advance benefits.

       Subpart C--Claim Intake, Assistance, and Review Procedures

104.31   Procedure for claims evaluation.
104.32   Eligibility review.
104.33   Hearing.
104.34   Publication of awards.
104.35   Claims deemed abandoned by claimants.

        Subpart D--Amount of Compensation for Eligible Claimants

104.41  Amount of compensation.
104.42   Applicable state law.
104.43   Determination of presumed economic loss for decedents.
104.44   Determination of presumed noneconomic losses for decedents.
104.45   Determination of presumed economic loss for claimants who 
          suffered physical harm.
104.46   Determination of presumed noneconomic losses for claimants who 
          suffered physical harm.
104.47   Collateral sources.

                      Subpart E--Payment of Claims

104.51   Payments to eligible individuals.
104.52   Distribution of award to decedent's beneficiaries.

                         Subpart F--Limitations

104.61   Limitation on civil actions.
104.62   Time limit on filing claims.
104.63   Subrogation.

Subpart G--Measures to Protect the Integrity of the Compensation Program

104.71   Procedures to prevent and detect fraud.

    Authority: Title IV of Pub. L. 107-42, 115 Stat. 230, 49 U.S.C. 
40101 note.

    Source: 66 FR 66282, Dec. 21, 2001, unless otherwise noted.



                     Subpart A--General; Eligibility



Sec. 104.1  Purpose.

    This part implements the provisions of the September 11th Victim 
Compensation Fund of 2001, Title IV of Public Law 107-42, 115 Stat. 230 
(Air Transportation Safety and System Stabilization Act) to provide 
compensation to eligible individuals who were physically injured as a 
result of the terrorist-related aircraft crashes of September 11, 2001, 
and to the ``personal representatives'' of those who were killed as a 
result of the crashes. All compensation provided through the Fund will 
be on account of personal physical injuries or death.



Sec. 104.2  Eligibility definitions and requirements.

    (a) Eligible claimants. The term eligible claimants means:
    (1) Individuals present at the World Trade Center, Pentagon, or 
Shanksville, Pennsylvania site at the time of or in the immediate 
aftermath of the crashes and who suffered physical harm, as defined 
herein, as a direct result of the terrorist-related aircraft crashes;
    (2) The Personal Representatives of deceased individuals aboard 
American Airlines flights 11 or 77 and United Airlines flights 93 or 
175; and
    (3) The Personal Representatives of individuals who were present at 
the World Trade Center, Pentagon, or Shanksville, Pennsylvania site at 
the time of or in the immediate aftermath of the crashes and who died as 
a direct result of the terrorist-related aircraft crash.
    (4) The term eligible claimants does not include any individual or 
representative of an individual who is identified to have been a 
participant or conspirator in the terrorist-related crashes of September 
11.

[[Page 428]]

    (b) Immediate aftermath. The term immediate aftermath of the crashes 
shall mean, for purposes of all claimants other than rescue workers, the 
period of time from the crashes until 12 hours after the crashes. With 
respect to rescue workers who assisted in efforts to search for and 
recover victims, the immediate aftermath shall include the period from 
the crashes until 96 hours after the crashes.
    (c) Physical harm. (1) The term physical harm shall mean a physical 
injury to the body that was treated by a medical professional within 24 
hours of the injury having been sustained, or within 24 hours of rescue, 
or within 72 hours of injury or rescue for those victims who were unable 
to realize immediately the extent of their injuries or for whom 
treatment by a medical professional was not available on September 11, 
or within such time period as the Special Master may determine for 
rescue personnel who did not or could not obtain treatment by a medical 
professional within 72 hours; and
    (2) In every case not involving death, the physical injury must be 
verified by contemporaneous medical records created by or at the 
direction of the medical professional who provided the medical care.
    (d) Personal Representative. The term Personal Representative shall 
mean the person determined to be the Personal Representative under 
Sec. 104.4 of this part.
    (e) Present at the site. The term present at the site (i.e., the 
World Trade Center, Pentagon, or Shanksville, Pennsylvania site) shall 
mean physically present at the time of the crashes or in the immediate 
aftermath:
    (1) In the buildings or portions of buildings that were destroyed as 
a result of the airplane crashes; or
    (2) In any area contiguous to the crash sites that the Special 
Master determines was sufficiently close to the site that there was a 
demonstrable risk of physical harm resulting from the impact of the 
aircraft or any subsequent fire, explosions, or building collapses 
(generally, the immediate area in which the impact occurred, fire 
occurred, portions of buildings fell, or debris fell upon and injured 
persons).

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11245, Mar. 13, 2002]



Sec. 104.3  Other definitions.

    (a) Beneficiary. The term beneficiary shall mean a person to whom 
the Personal Representative shall distribute all or part of the award 
under Sec. 104.52 of this Part.
    (b) Dependents. The Special Master shall identify as dependents 
those persons so identified by the victim on his or her federal tax 
return for the year 2000 (or those persons who legally could have been 
identified by the victim on his or her federal tax return for the year 
2000) unless:
    (1) The claimant demonstrates that a minor child of the victim was 
born or adopted on or after January 1, 2001;
    (2) Another person became a dependent in accordance with then-
applicable law on or after January 1, 2001; or
    (3) The victim was not required by law to file a federal income tax 
return for the year 2000.
    (c) Spouse. The Special Master shall identify as the spouse of a 
victim the person reported as spouse on the victim's federal tax return 
for the year 2000 unless:
    (1) The victim was married or divorced in accordance with applicable 
state law on or after January 1, 2001; or
    (2) The victim was not required by law to file a federal income tax 
return for the year 2000.
    (d) The Act. The Act, as used in this part, shall mean Public Law 
107-42, 115 Stat. 230 (``Air Transportation Safety and System 
Stabilization Act''), 49 U.S.C. 40101 note.
    (e) Victim. The term victim shall mean an eligible injured claimant 
or a decedent on whose behalf a claim is brought by an eligible Personal 
Representative.

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11245, Mar. 13, 2002]



Sec. 104.4  Personal Representative.

    (a) In general. The Personal Representative shall be:
    (1) An individual appointed by a court of competent jurisdiction as 
the

[[Page 429]]

Personal Representative of the decedent or as the executor or 
administrator of the decedent's will or estate.
    (2) In the event that no Personal Representative or executor or 
administrator has been appointed by any court of competent jurisdiction, 
and such issue is not the subject of pending litigation or other 
dispute, the Special Master may, in his discretion, determine that the 
Personal Representative for purposes of compensation by the Fund is the 
person named by the decedent in the decedent's will as the executor or 
administrator of the decedent's estate. In the event no will exists, the 
Special Master may, in his discretion, determine that the Personal 
Representative for purposes of compensation by the Fund is the first 
person in the line of succession established by the laws of the 
decedent's domicile governing intestacy.
    (b) Notice to beneficiaries. Any purported Personal Representative 
must, before filing an Eligibility Form, provide written notice of the 
claim (including a designated portion of the Eligibility Form) to the 
immediate family of the decedent (including, but not limited to, the 
decedent's spouse, former spouses, children, other dependents, and 
parents), to the executor, administrator, and beneficiaries of the 
decedent's will, and to any other persons who may reasonably be expected 
to assert an interest in an award or to have a cause of action to 
recover damages relating to the wrongful death of the decedent. Personal 
delivery or transmission by certified mail, return receipt requested, 
shall be deemed sufficient notice under this provision. The claim forms 
shall require that the purported Personal Representative certify that 
such notice (or other notice that the Special Master deems appropriate) 
has been given. In addition, as provided in Sec. 104.21(b)(5) of this 
part, the Special Master may publish a list of individuals who have 
filed Eligibility Forms and the names of the victims for whom 
compensation is sought, but shall not publish the content of any such 
form.
    (c) Objections to Personal Representatives. Objections to the 
authority of an individual to file as the Personal Representative of a 
decedent may be filed with the Special Master by parties who assert a 
financial interest in the award up to 30 days following the filing by 
the Personal Representative. If timely filed, such objections shall be 
treated as evidence of a ``dispute'' pursuant to paragraph (d) of this 
section.
    (d) Disputes as to identity. The Special Master shall not be 
required to arbitrate, litigate, or otherwise resolve any dispute as to 
the identity of the Personal Representative. In the event of a dispute 
over the appropriate Personal Representative, the Special Master may 
suspend adjudication of the claim or, if sufficient information is 
provided, calculate the appropriate award and authorize payment, but 
place in escrow any payment until the dispute is resolved either by 
agreement of the disputing parties or by a court of competent 
jurisdiction. Alternatively, the disputing parties may agree in writing 
to the identity of a Personal Representative to act on their behalf, who 
may seek and accept payment from the Fund while the disputing parties 
work to settle their dispute.



Sec. 104.5  Foreign claims.

    In the case of claims brought by or on behalf of foreign citizens, 
the Special Master may alter the requirements for documentation set 
forth herein to the extent such materials are unavailable to such 
foreign claimants.



Sec. 104.6  Amendments to this part.

    Claimants are entitled to have their claims processed in accordance 
with the provisions of this Part that were in effect at the time that 
their claims were submitted under Sec. 104.21(d). All claims will be 
processed in accordance with the current provisions of this Part, unless 
the claimant has notified the Special Master that he or she has elected 
to have the claim resolved under the regulations that were in effect at 
the time that the claim was submitted under Sec. 104.21(d).

[67 FR 11245, Mar. 13, 2002]

[[Page 430]]



  Subpart B--Filing for Compensation; Application for Advance Benefits



Sec. 104.21  Filing for compensation.

    (a) Compensation form; ``filing.'' Except for applications for 
Advance Benefits pursuant to Sec. 104.22, no claim may be considered 
until the claimant has submitted both an ``Eligibility Form'' and either 
a ``Personal Injury Compensation Form'' or a ``Death Compensation 
Form.'' A claim shall be deemed ``filed'' for purposes of section 
405(b)(3) of the Act (providing that the Special Master shall issue a 
determination not later than 120 days after the date on which a claim is 
filed), and for any time periods in this part, when a Claims Evaluator 
determines that both the Eligibility Form and either a Personal Injury 
Compensation Form or a Death Compensation Form are substantially 
complete. Provided, however, that if a claimant files an Eligibility 
Form requesting Advance Benefits pursuant to Sec. 104.22 of this part 
without filing either a ``Personal Injury Compensation Form'' or a 
``Death Compensation Form,'' the claim shall be deemed ``filed'' when 
the Claims Evaluator determines that the Eligibility Form is 
substantially complete, but the time period for determination and any 
time periods in this part shall be stayed or tolled as described in 
Sec. 104.22(g) of this part.
    (b) Eligibility Form. The Special Master shall develop an 
Eligibility Form that will require the claimant to provide information 
necessary for determining the claimant's eligibility to recover from the 
Fund.
    (1) The Eligibility Form may require that the claimant certify that 
he or she has dismissed any pending lawsuit seeking damages as a result 
of the terrorist-related airplane crashes of September 11, 2001 (except 
for actions seeking collateral source benefits) within 90 days of the 
effective date of this part pursuant to section 405(c)(3)(B)(ii) of the 
Act and that there is no pending lawsuit brought by a dependent, spouse, 
or beneficiary of the victim.
    (2) The Special Master may require as part of the notice requirement 
pursuant to Sec. 104.4(b) that the claimant provide copies of a 
designated portion of the Eligibility Form to the immediate family of 
the decedent (including, but not limited to, the spouse, former spouses, 
children, other dependents, and parents), to the executor, 
administrator, and beneficiaries of the decedent's will, and to any 
other persons who may reasonably be expected to assert an interest in an 
award or to have a cause of action to recover damages relating to the 
wrongful death of the decedent.
    (3) The Eligibility Form may require claimants to provide the 
following proof:
    (i) Proof of death: Death certificate or similar official 
documentation;
    (ii) Proof of presence at site: Documentation sufficient to 
establish presence at one of the crash sites, which may include, without 
limitation, a death certificate, records of employment, contemporaneous 
medical records, contemporaneous records of federal, state, city or 
local government, an affidavit or declaration of the decedent's or 
injured claimant's employer, or other sworn statement (or unsworn 
statement complying with 28 U.S.C. 1746) regarding the presence of the 
victim;
    (iii) Proof of death on board aircraft: Death certificate or records 
of American or United Airlines or other sufficient official 
documentation;
    (iv) Proof of physical harm: Contemporaneous medical records of 
hospitals, clinics, physicians, licensed medical personnel, or 
registries maintained by federal, state, or local government, and 
records of all continuing medical treatment;
    (v) Personal Representative: Copies of relevant legal documentation, 
including court orders; letters testamentary or similar documentation; 
proof of the purported Personal Representative's relationship to the 
decedent; copies of wills, trusts, or other testamentary documents; and 
information regarding other possible beneficiaries as requested by the 
Eligibility Form;
    (vi) Any other information that the Special Master deems necessary 
to determine the claimant's eligibility.
    (4) The Special Master may also require waivers, consents, or 
authorizations from claimants to obtain directly

[[Page 431]]

from third parties tax returns, medical information, employment 
information, or other information that the Special Master deems relevant 
in determining the claimant's eligibility or award, and may request an 
opportunity to review originals of documents submitted in connection 
with the Fund.
    (5) Application for Advance Benefits: The Eligibility Form shall 
include a section allowing claimants to indicate that they wish to apply 
for Advance Benefits. Claimants who apply for such Advance Benefits must 
certify on that Form that they have not yet received $450,000 in 
collateral source compensation if they are bringing a claim on behalf of 
a deceased victim with a spouse or dependent, $250,000 in collateral 
source compensation if they are bringing a claim on behalf of a deceased 
victim who was single with no dependents, or an amount in excess of 
their lost wages plus out-of-pocket medical expenses if they are an 
injured claimant. All such claimants also must state on the Form facts 
establishing financial hardship that would justify a determination that 
they are in need of Advance Benefits.
    (6) The Special Master may publish a list of individuals who have 
filed Eligibility Forms and the names of the victims for whom 
compensation is sought, but shall not publish the content of any such 
form.
    (c) Personal Injury Compensation Form and Death Compensation Form. 
The Special Master shall develop a Personal Injury Compensation Form 
that each injured claimant must submit. The Special Master shall also 
develop a Death Compensation Form that each Personal Representative must 
submit. These forms shall require the claimant to provide certain 
information that the Special Master deems necessary to determining the 
amount of any award, including information concerning income, collateral 
sources, benefits, and other financial information, and shall require 
the claimant to state the factual basis for the amount of compensation 
sought. It shall also allow the claimant to submit certain other 
information that may be relevant, but not necessary, to the 
determination of the amount of any award.
    (1) Claimants shall, at a minimum, submit all tax returns that were 
filed for the years 1998, 1999, and 2000. The Special Master may, at his 
discretion, require that claimants submit copies of tax returns or other 
records for any other period of years he deems appropriate for 
determination of an award. The Special Master may also require waivers, 
consents, or authorizations from claimants to obtain directly from third 
parties medical information, employment information, or other 
information that the Special Master deems relevant to determining the 
amount of any award.
    (2) Claimants may attach to the ``Personal Injury Compensation 
Form'' or ``Death Compensation Form'' any additional statements, 
documents or analyses by physicians, experts, advisors, or any other 
person or entity that the claimant believes may be relevant to a 
determination of compensation.
    (d) Submission of a claim. Section 405(c)(3)(B) of the Act provides 
that upon the submission of a claim under the Fund, the claimant waives 
the right to file a civil action (or to be a party to an action) in any 
Federal or State court for damages sustained as a result of the 
terrorist-related aircraft crashes of September 11, 2001, except for 
civil actions to recover collateral source obligations and civil actions 
against any person who is a knowing participant in any conspiracy to 
hijack any aircraft or commit any terrorist act. A claim shall be deemed 
submitted for purposes of section 405(c)(3)(B) of the Act when the claim 
is deemed filed pursuant to Sec. 104.21, regardless of whether any time 
limits are stayed or tolled.
    (e) Provisions of information by third parties. Any third party 
having an interest in a claim brought by a Personal Representative may 
provide written statements or information regarding the Personal 
Representative's claim. The Claims Evaluator or the Special Master or 
his designee may, at his or her discretion, include the written 
statements or information as part of the claim.

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11245, Mar. 13, 2002]

[[Page 432]]



Sec. 104.22  Advance Benefits.

    (a) Advance Benefits. Eligible Claimants may apply for immediate 
``Advance Benefits'' in a fixed amount as follows:
    (1) $50,000 for Personal Representatives; and
    (2) $25,000 for injured claimants who meet the requirements of 
paragraph (d) of this section.
    (b) Credit against award. The Advance Benefit shall be credited 
against any final compensation award so that the amount of the Advance 
Benefit is deducted from the final award under this program.
    (c) Application for Advance Benefits. An otherwise eligible claimant 
may seek Advance Benefits to alleviate financial hardship faced by the 
claimant (or financial hardship faced by the beneficiaries of the 
decedent) by submitting an Eligibility Form described in Sec. 104.21(b) 
and indicating thereon that he or she is applying for Advance Benefits.
    (d) Eligibility for Advance Benefits. In the case of a Personal 
Representative, the claimant may be deemed eligible for Advance Benefits 
if a Claims Evaluator or the Special Master or his designee determines 
that the claimant is eligible to recover under the Fund. In the case of 
an injured claimant, the claimant may be deemed eligible for Advance 
Benefits when the Special Master or his designee determines that the 
claimant is eligible to recover under the Fund and that the claimant's 
physical injury required hospitalization for one week or more.
    (e) Authorization of payments. (1) Payment in the amount described 
in paragraph (a) of this section will be authorized immediately upon a 
determination that the claimant is eligible for Advance Benefits and the 
claimant is:
    (i) An injured claimant;
    (ii) A Personal Representative who was the spouse of the deceased 
victim on September 11, 2001; or
    (iii) A Personal Representative who has obtained the consent of the 
spouse of the deceased victim (or, if there is no surviving spouse, all 
of the dependents of the deceased victim) to file for Advance Benefits.
    (2)(i) With respect to other Personal Representatives, payment will 
be authorized within 15 days after the determination that the claimant 
is eligible for Advance Benefits, provided that no other individual has 
asserted a colorable conflicting claim as the Personal Representative 
with respect to the decedent and the Personal Representative identifies 
and has given notice to the beneficiaries to whom such Advance Benefits 
will be distributed.
    (ii) In the event that a colorable conflicting claim has been 
asserted, no Advance Benefit will be paid until a final eligibility 
determination has been made.
    (f) Tolling of 120-day clock and other time periods. A claimant 
filing an Eligibility Form requesting Advance Benefits before filing a 
Personal Injury Compensation Form or Death Compensation Form will be 
deemed to have waived his right to commencement of the 120-day period in 
section 405(b)(3) of the Act (providing that the Special Master shall 
provide notice to the claimant of his determination within 120 days 
after the date on which a claim is filed). The 120-day period and all 
other time limitations in this part, except those applicable to Advance 
Benefit payments, shall be stayed or tolled until such time that a 
Claims Evaluator determines that the claimant's Personal Injury 
Compensation Form or Death Compensation Form is substantially complete.



       Subpart C--Claim Intake, Assistance, and Review Procedures



Sec. 104.31  Procedure for claims evaluation.

    (a) Initial review. Claims Evaluators shall review the forms filed 
by the claimant and either deem the claim ``filed'' (pursuant to 
104.21(a)) or notify the claimant of any deficiency in the forms or any 
required documents.
    (b) Procedural tracks. Each claim will be placed on a procedural 
track, described herein as ``Track A'' and ``Track B,'' selected by the 
claimant on the Personal Injury Compensation Form or Death Compensation 
Form.
    (1) Procedure for Track A. The Claims Evaluator shall determine 
eligibility and the claimant's presumed award pursuant to Secs. 104.43 
to 104.46 of this part and, within 45 days of the date the

[[Page 433]]

claim was deemed filed, notify the claimant in writing of the 
eligibility determination, the amount of the presumed award, and the 
right to request a hearing before the Special Master or his designee 
under Sec. 104.33 of this part. After an eligible claimant has been 
notified of the presumed award, the claimant may either accept the 
presumed compensation determination as the final determination and 
request payment, or may instead request a review before the Special 
Master or his designee pursuant to Sec. 104.33. Claimants found to be 
ineligible may appeal pursuant to Sec. 104.32.
    (2) Procedure for Track B. The Claims Evaluator shall determine 
eligibility within 45 days of the date the claim was deemed filed, but 
shall not determine the claimant's presumed award; the Claims Evaluator 
shall notify the claimant in writing of the eligibility determination. 
Upon notification of eligibility, the claimant will proceed to a hearing 
pursuant to Sec. 104.33. At such hearing, the Special Master or his 
designee shall utilize the presumptive award methodology as set forth in 
Secs. 104.43 to 104.46 of this part, but may modify or vary the award if 
the claimant presents extraordinary circumstances not adequately 
addressed by the presumptive award methodology. There shall be no review 
or appeal from this determination.
    (c) Multiple claims from the same family. The Special Master may 
treat claims brought by or on behalf of two or more members of the same 
immediate family as related or consolidated claims for purposes of 
determining the amount of any award.



Sec. 104.32  Eligibility review.

    Any claimant deemed ineligible by the Claims Evaluator may appeal 
that decision to the Special Master or his designee by filing an 
eligibility appeal on forms created by the office of the Special Master.



Sec. 104.33  Hearing.

    (a) Supplemental submissions. The claimant may prepare and file 
Supplemental Submissions within 21 calendar days from notification of 
either the presumed award (Track A) or eligibility (Track B). The 
Special Master shall develop forms appropriate for Supplemental 
Submissions.
    (b) Conduct of hearings. Hearings shall be before the Special Master 
or his designee. The objective of hearings shall be to permit the 
claimant to present information or evidence that the claimant believes 
is necessary to a full understanding of the claim. The claimant may 
request that the Special Master or his designee review any evidence 
relevant to the determination of the award, including without 
limitation: Factors and variables used in calculating economic loss; the 
identity of the victim's spouse and dependents; the financial needs of 
the claimant; facts affecting noneconomic loss; and any factual or legal 
arguments that the claimant contends should affect the award. Claimants 
shall be entitled to submit any statements or reports in writing. The 
Special Master or his designee may require authentication of documents, 
including medical records and reports, and may request and consider 
information regarding the financial resources and expenses of the 
victim's family or other material that the Special Master or his 
designee deems relevant.
    (c) Location and duration of hearings. The hearings shall, to the 
extent practicable, be scheduled at times and in locations convenient to 
the claimant or his or her representative. The hearings shall be limited 
in length to a time period determined by the Special Master or his 
designee.
    (d) Witnesses, counsel, and experts. Claimants shall be permitted, 
but not required, to present witnesses, including expert witnesses. The 
Special Master or his designee shall be permitted to question witnesses 
and examine the credentials of experts. The claimant shall be entitled 
to be represented by an attorney in good standing, but it is not 
necessary that the claimant be represented by an attorney.
    (e) Waivers. The Special Master shall have authority and discretion 
to require any waivers necessary to obtain more individualized 
information on specific claimants.
    (f) Track A review of presumed award. For proceedings under Track A, 
the Special Master or his designee shall make a determination whether:

[[Page 434]]

    (1) There was an error in determining the presumptive award, either 
because the claimant's individual criteria were misapplied or for 
another reason; or
    (2) The claimant presents extraordinary circumstances not adequately 
addressed by the presumptive award.
    (g) Determination. The Special Master shall notify the claimant in 
writing of the final amount of the award, but need not create or provide 
any written record of the deliberations that resulted in that 
determination. There shall be no further review or appeal of the Special 
Master's determination. In notifying the claimant of the final amount of 
the award, the Special Master may designate the portions or percentages 
of the final award that are attributable to economic loss and non-
economic loss, respectively, and may provide such other information as 
appropriate to provide adequate guidance for a court of competent 
jurisdiction and a personal representative.

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11246, Mar. 13, 2002]



Sec. 104.34  Publication of awards.

    In order to assist potential claimants in evaluating their options 
of either filing a claim with the Special Master or filing a lawsuit in 
tort, the Special Master reserves the right to publicize the amounts of 
some or all of the awards, but shall not publish the name of the 
claimants or victims that received each award. If published, these 
decisions would be intended by the Special Master as general guides for 
potential claimants and should not be viewed as precedent binding on the 
Special Master or his staff.



Sec. 104.35  Claims deemed abandoned by claimants.

    The Special Master and his staff will endeavor to evaluate promptly 
any information submitted by claimants. Nonetheless, it is the 
responsibility of the claimant to keep the Special Master informed of 
his or her current address and to respond within the duration of this 
two-year program to requests for additional information. Claims 
outstanding at the end of this program because of a claimant's failure 
to complete his or her filings shall be deemed abandoned.



        Subpart D--Amount of Compensation for Eligible Claimants.



Sec. 104.41  Amount of compensation.

    As provided in section 405(b)(1)(B)(ii) of the Act, in determining 
the amount of compensation to which a claimant is entitled, the Special 
Master shall take into consideration the harm to the claimant, the facts 
of the claim, and the individual circumstances of the claimant. The 
individual circumstances of the claimant may include the financial needs 
or financial resources of the claimant or the victim's dependents and 
beneficiaries. As provided in section 405(b)(6) of the Act, the Special 
Master shall reduce the amount of compensation by the amount of 
collateral source compensation the claimant (or, in the case of a 
Personal Representative, the victim's beneficiaries) has received or is 
entitled to receive as a result of the terrorist-related aircraft 
crashes of September 11, 2001. In no event shall an award (before 
collateral source compensation has been deducted) be less than $500,000 
in any case brought on behalf of a deceased victim with a spouse or 
dependent, or $300,000 in any case brought on behalf of a deceased 
victim who was single with no dependents.



Sec. 104.42  Applicable state law.

    The phrase ``to the extent recovery for such loss is allowed under 
applicable state law,'' as used in the statute's definition of economic 
loss in section 402(5) of the Act, is interpreted to mean that the 
Special Master is not permitted to compensate claimants for those 
categories or types of economic losses that would not be compensable 
under the law of the state that would be applicable to any tort claims 
brought by or on behalf of the victim.



Sec. 104.43  Determination of presumed economic loss for decedents.

    In reaching presumed determinations for economic loss for Personal 
Representatives bringing claims on behalf of decedents, the Special 
Master shall consider sums corresponding to the following:

[[Page 435]]

    (a) Loss of earnings or other benefits related to employment. The 
Special Master, as part of the process of reaching a ``determination'' 
pursuant to section 405(b) of the Act, shall develop a methodology and 
publish schedules, tables, or charts that will permit prospective 
claimants to estimate determinations of loss of earnings or other 
benefits related to employment based upon individual circumstances of 
the deceased victim, including: The age of the decedent as of September 
11, 2001; the number of dependents who survive the decedent; whether the 
decedent is survived by a spouse; and the amount and nature of the 
decedent's income for recent years. The Decedent's salary/income in 
1998-2000 (or for other years the Special Master deems relevant) shall 
be evaluated in a manner that the Special Master deems appropriate. The 
Special Master may, if he deems appropriate, take an average of income 
figures for 1998-2000, and may also consider income for other periods 
that he deems appropriate, including published pay scales for victims 
who were government or military employees. The Special Master's 
methodology and schedules, tables, or charts shall yield presumed 
determinations of loss of earnings or other benefits related to 
employment for annual incomes up to but not beyond the 98th percentile 
of individual income in the United States for the year 2000. In cases 
where the victim was a minor child, the Special Master may assume an 
average income for the child commensurate with the average income of all 
wage earners in the United States. For victims who were members of the 
armed services or government employees such as firefighters or police 
officers, the Special Master may consider all forms of compensation (or 
pay) to which the victim was entitled. For example, military service 
members' and uniformed service members' compensation includes all of the 
various components of compensation, including, but not limited to, basic 
pay (BPY), basic allowance for housing (BAH), basic allowance for 
subsistence (BAS), federal income tax advantage (TAD), overtime bonuses, 
differential pay, and longevity pay.
    (b) Medical expense loss. This loss equals the out-of-pocket medical 
expenses that were incurred as a result of the physical harm suffered by 
the victim (i.e., those medical expenses that were not paid for or 
reimbursed through health insurance). This loss shall be calculated on a 
case-by-case basis, using documentation and other information submitted 
by the Personal Representative.
    (c) Replacement services loss. For decedents who did not have any 
prior earned income, or who worked only part time outside the home, 
economic loss may be determined with reference to replacement services 
and similar measures.
    (d) Loss due to death/burial costs. This loss shall be calculated on 
a case-by-case basis, using documentation and other information 
submitted by the personal representative and includes the out-of-pocket 
burial costs that were incurred.
    (e) Loss of business or employment opportunities. Such losses shall 
be addressed through the procedure outlined above in paragraph (a) of 
this section.

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11246, Mar. 13, 2002]



Sec. 104.44  Determination of presumed noneconomic losses for decedents.

    The presumed non-economic losses for decedents shall be $250,000 
plus an additional $100,000 for the spouse and each dependent of the 
deceased victim. Such presumed losses include a noneconomic component of 
replacement services loss.

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11246, Mar. 13, 2002]



Sec. 104.45  Determination of presumed economic loss for claimants who suffered physical harm.

    In reaching presumed determinations for economic loss for claimants 
who suffered physical harm (but did not die), the Special Master shall 
consider sums corresponding to the following:
    (a) Loss of earnings or other benefits related to employment. The 
Special Master may determine the loss of earnings or other benefits 
related to employment on a case-by-case basis, using documentation and 
other information submitted by the claimant, regarding the actual amount 
of work that the claimant has missed or will miss without

[[Page 436]]

compensation. Alternatively, the Special Master may determine the loss 
of earnings or other benefits related to employment by relying upon the 
methodology created pursuant to Sec. 104.43(a) and adjusting the loss 
based upon the extent of the victim's physical harm.
    (1) Disability; in general. In evaluating claims of disability, the 
Special Master will, in general, make a determination regarding whether 
the claimant is capable of performing his or her usual profession in 
light of the injuries.
    (2) Total permanent disability. With respect to claims of total 
permanent disability, the Special Master may accept a determination of 
disability made by the Social Security Administration as evidence of 
disability without any further medical evidence or review. The Special 
Master may also consider determinations of permanent total disability 
made by other governmental agencies or private insurers in evaluating 
the claim. The Special Master may require that the claimant submit an 
evaluation of the claimant's disability and ability to perform his or 
her occupation prepared by medical experts.
    (3) Partial disability. With respect to claims of partial 
disability, the Special Master may consider evidence of the effect of 
the partial disability on the claimant's ability to perform his or her 
usual occupation as well as the effect of the partial disability on the 
claimant's ability to participate in usual daily activities.
    (b) Medical Expense Loss. This loss equals the out-of-pocket medical 
expenses that were incurred as a result of the physical harm suffered by 
the victim (i.e., those medical expenses that were not paid for or 
reimbursed through health insurance). In addition, this loss equals 
future out-of-pocket medical expenses that will be incurred as a result 
of the physical harm suffered by the victim (i.e., those medical 
expenses that will not be paid for or reimbursed through health 
insurance). These losses shall be calculated on a case-by-case basis, 
using documentation and other information submitted by the claimant.
    (c) Replacement services loss. For injured claimants who did not 
have any prior earned income, or who worked only part-time outside the 
home, economic loss may be determined with reference to replacement 
services and similar measures.
    (d) Loss of business or employment opportunities. Such losses shall 
be addressed through the procedure outlined above in paragraph (a) of 
this section.



Sec. 104.46  Determination of presumed noneconomic losses for claimants who suffered physical harm.

    The Special Master may determine the presumed noneconomic losses for 
claimants who suffered physical harm (but did not die) by relying upon 
the noneconomic losses described in Sec. 104.44 and adjusting the losses 
based upon the extent of the victim's physical harm. Such presumed 
losses include any noneconomic component of replacement services loss.



Sec. 104.47  Collateral sources.

    (a) Payments that constitute collateral source compensation. The 
amount of compensation shall be reduced by all collateral source 
compensation, including life insurance, pension funds, death benefits 
programs, and payments by Federal, State, or local governments related 
to the terrorist-related aircraft crashes of September 11, 2001. In 
determining the appropriate collateral source offset for future benefit 
payments, the Special Master may employ an appropriate methodology for 
determining the present value of such future benefits. In determining 
the appropriate value of offsets for pension funds, life insurance and 
similar collateral sources, the Special Master may, as appropriate, 
reduce the amount of offsets to take account of self-contributions made 
or premiums paid by the victim during his or her lifetime. In 
determining the appropriate collateral source offset for future benefit 
payments that are contingent upon one or more future event(s), the 
Special Master may reduce such offsets to account for the possibility 
that the future contingencies may or may not occur. In cases where the 
recipients of collateral source compensation are not beneficiaries of 
the awards from the Fund, the Special Master shall have discretion to 
exclude such compensation from the collateral source offset

[[Page 437]]

where necessary to prevent beneficiaries from having their awards 
reduced by collateral source compensation that they will not receive.
    (b) Payments that do not constitute collateral source compensation. 
The following payments received by claimants do not constitute 
collateral source compensation:
    (1) The value of services or in-kind charitable gifts such as 
provision of emergency housing, food, or clothing; and
    (2) Charitable donations distributed to the beneficiaries of the 
decedent, to the injured claimant, or to the beneficiaries of the 
injured claimant by privately funded charitable entities; provided 
however, that the Special Master may determine that funds provided to 
victims or their families through a privately funded charitable entity 
constitute, in substance, a payment described in paragraph (a) of this 
section.
    (3) Tax benefits received from the Federal government as a result of 
the enactment of the Victims of Terrorism Tax Relief Act.

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11246, Mar. 13, 2002]



                      Subpart E--Payment of Claims



Sec. 104.51  Payments to eligible individuals.

    Not later than 20 days after the date on which a determination is 
made by the Special Master regarding the amount of compensation due a 
claimant under the Fund, the Special Master shall authorize payment to 
such claimant of the amount determined with respect to the claimant.



Sec. 104.52  Distribution of award to decedent's beneficiaries.

    The Personal Representative shall distribute the award in a manner 
consistent with the law of the decedent's domicile or any applicable 
rulings made by a court of competent jurisdiction. The Personal 
Representative shall, before payment is authorized, provide to the 
Special Master a plan for distribution of any award received from the 
Fund. Notwithstanding any other provision of these regulations or any 
other provision of state law, in the event that the Special Master 
concludes that the Personal Representative's plan for distribution does 
not appropriately compensate the victim's spouse, children, or other 
relatives, the Special Master may direct the Personal Representative to 
distribute all or part of the award to such spouse, children, or other 
relatives.

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11246, Mar. 13, 2002]



                         Subpart F--Limitations



Sec. 104.61  Limitation on civil actions.

    (a) General. Section 405(c)(3)(B) of the Act provides that upon the 
submission of a claim under the Fund, the claimant waives the right to 
file a civil action (or be a party to an action) in any Federal or State 
court for damages sustained as a result of the terrorist-related 
aircraft crashes of September 11, 2001, except that this limitation does 
not apply to recover collateral source obligations, or to a civil action 
against any person who is a knowing participant in any conspiracy to 
hijack any aircraft or commit any terrorist act. The Special Master 
shall take appropriate steps to inform potential claimants of section 
405(c)(3)(B) of the Act.
    (b) Pending actions. Claimants who have filed a civil action or who 
are a party to such an action as described in paragraph (a) of this 
section may not file a claim with the Special Master unless they 
withdraw from such action not later than March 21, 2002.

[66 FR 66282, Dec. 21, 2001, as amended at 67 FR 11246, Mar. 13, 2002]



Sec. 104.62  Time limit on filing claims.

    In accordance with the Act, no claim may be filed under this part 
after December 22, 2003.



Sec. 104.63  Subrogation.

    Compensation under this Fund does not constitute the recovery of 
tort damages against a third party nor the settlement of a third party 
action, and the United States shall be subrogated to all potential 
claims against third party tortfeasors of any victim receiving 
compensation from the Fund. For that reason, no person or entity having 
paid other benefits or compensation to or on behalf of a victim shall 
have any

[[Page 438]]

right of recovery, whether through subrogation or otherwise, against the 
compensation paid by the Fund.



Subpart G--Measures to Protect the Integrity of the Compensation Program



Sec. 104.71  Procedures to prevent and detect fraud.

    (a) Review of claims. For the purpose of detecting and preventing 
the payment of fraudulent claims and for the purpose of assuring 
accurate and appropriate payments to eligible claimants, the Special 
Master shall implement procedures to:
    (1) Verify, authenticate, and audit claims;
    (2) Analyze claim submissions to detect inconsistencies, 
irregularities, duplication, and multiple claimants; and
    (3) Ensure the quality control of claims review procedures.
    (b) Quality control. The Special Master shall institute periodic 
quality control audits designed to evaluate the accuracy of submissions 
and the accuracy of payments, subject to the oversight of the Inspector 
General of the Department of Justice.
    (c) False or fraudulent claims. The Special Master shall refer all 
evidence of false or fraudulent claims to appropriate law enforcement 
authorities.



PART 105--SECURITY RISK ASSESSMENTS--Table of Contents




Subpart A [Reserved]

Subpart B--Aviation Training for Aliens and Other Designated Individuals

Sec.
105.10  Definitions, purpose, and scope.
105.11  Individuals not requiring a security risk assessment.
105.12  Notification for candidates eligible for expedited processing.
105.13  Notification for candidates not eligible for expedited 
          processing.
105.14  Risk assessment for candidates.

    Authority: Section 113 of Pub. L. 107-71, 115 Stat. 622 (49 U.S.C. 
44939).

    Source:  Order No. 2656-2003, 68 FR 7318, February 13, 2003, unless 
otherwise noted.

Subpart A [Reserved]



Subpart B--Aviation Training for Aliens and Other Designated Individuals



Sec. 105.10  Definitions, purpose, and scope.

    (a) Definitions.
    ATSA means the Aviation and Transportation Security Act, Public Law 
107-71.
    Candidate means any person who is an alien as defined in section 
101(a)(3) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(3), 
or a person specified by the Under Secretary of Transportation for 
Security, who seeks training in the operation of an aircraft with a 
maximum certificated takeoff weight of 12,500 pounds or more from a 
Provider.
    Certificates with ratings recognized by the United States means a 
valid pilot or flight engineer certificate with ratings issued by the 
United States, or a valid foreign pilot or flight engineer license 
issued by a member of the Assembly of the International Civil Aviation 
Organization, as established by Article 43 of the Convention on 
International Civil Aviation.
    Notification means providing the information required under this 
regulation in the format and manner specified.
    Provider means a person or entity subject to regulation under Title 
49 Subtitle VII, Part A, United States Code. This definition includes 
individual training providers, training centers, certificated carriers, 
and flight schools. Virtually all private providers of instruction in 
the operation of aircraft with a maximum certificated takeoff weight of 
12,500 pounds or more are covered by section 113 of ATSA (49 U.S.C. 
44939) and are therefore subject to this rule. Providers located in 
countries other than the United States are included in this definition 
to the extent that they are providing training leading to a United 
States license, certification, or rating. Providers who ``dry-lease'' 
simulator equipment to individuals or entities for use within the United 
States are deemed to be providing the training themselves if the lessee 
is not subject to regulation under Title 49. Providers located in 
countries other than the United States

[[Page 439]]

who are providing training that does not lead to a United States pilot 
or flight engineer certification, or rating are not included in this 
definition. When the Department of Defense or the U.S. Coast Guard, or 
an entity providing training pursuant to a contract with the Department 
of Defense or the U.S. Coast Guard (including a subcontractor), provides 
training for a military purpose, such training is not subject to Federal 
Aviation Administration (FAA) regulation. Accordingly, these entities, 
when providing such training, are not ``person[s] subject to regulation 
under this part'' within the meaning of section 113 of ATSA.
    Training means any instruction in the operation of an aircraft, 
including ``ground school,'' flight simulator, and in-flight training. 
It does not include the provision of training manuals or other 
materials, and does not include mechanical training that would not 
enable the trainee to operate the aircraft in flight.
    (b) Purpose and scope. (1) Section 113 of ATSA (49 U.S.C. 44939) 
prohibits Providers from furnishing candidates with training in the 
operation of an aircraft with a maximum certificated takeoff weight of 
12,500 pounds or more without the prior notification of the Attorney 
General. Training in the operation of smaller aircraft is considered to 
be training in the operation of an aircraft with a maximum certificated 
takeoff weight of 12,500 pounds or more if the training would lead to a 
type rating allowing the candidate to operate a model of the same or 
substantially similar type of aircraft with a maximum certificated 
takeoff weight of 12,500 pounds or more in accordance with FAA 
regulations. The purpose of this notification is to allow the Attorney 
General to determine whether such an individual presents a risk to 
aviation or national security before training may begin. The Department 
believes that it is not required to make a candidate wait for 45 days in 
order to begin training if the Department has completed its risk 
assessment. Therefore, after providing the required notification to the 
Attorney General as described in this subpart, the Provider may begin 
instruction of a candidate if the Attorney General has informed the 
Provider that the Attorney General has determined as a result of the 
risk assessment conducted pursuant to section 113 of ATSA that providing 
the training does not present a risk to aviation or national security. 
If the Attorney General does not provide either an authorization to 
proceed with training or a notice to deny training within 45 days after 
receiving the required notification, the Provider may commence training 
at that time. All candidates who are not citizens or nationals of the 
U.S. must show a valid passport establishing their identity to a 
Provider before commencing training.
    (2) The Department may, at any time, require the resubmission of all 
or a portion of a candidate's training request, including fingerprints. 
If, after approving any training application, the Department determines 
that a candidate presents a risk to aviation or national security, it 
will notify the Provider to cease training. The Provider who submitted 
the candidate's identifying information will be responsible for ensuring 
that the training is promptly halted, regardless of whether another 
Provider is currently training the candidate.
    (3) Providing false information or otherwise failing to comply with 
section 113 of ATSA may present a threat to aviation or national 
security and is subject to both civil and criminal sanctions. The United 
States will take all necessary legal action to deter and punish 
violations of this section.
    (4) Providers should make every effort to ensure that approved 
training occurs on the dates specified in the training request at the 
location of the Provider who submitted the request. However, where 
scheduling problems or other exigent circumstances prevent this from 
happening, training may be rescheduled for any time within 30 days of 
the approved training dates without submitting an additional request. If 
any scheduling change of greater than 30 days occurs, a new request with 
the corrected training dates must be submitted. Any proposed change in 
location or Provider must precipitate a new request, although Providers 
may employ the assistance of other Providers or their facilities for a 
portion of

[[Page 440]]

the training, provided that the substantial majority of the training 
occurs at location of the Provider who submitted the request.



Sec. 105.11  Individuals not requiring a security risk assessment.

    (a) Citizens and nationals of the United States. A citizen or 
national of the United States is not subject to section 113 of ATSA 
unless otherwise designated by the Under Secretary of Transportation for 
Security. A Provider must determine whether a prospective trainee is a 
citizen or national of the United States prior to providing training in 
the operation of an aircraft with a maximum certificated takeoff weight 
of 12,500 pounds or more. To establish United States citizenship or 
nationality, the prospective trainee must show the Provider from whom he 
or she seeks training any of the following documents as proof of United 
States citizenship or nationality:
    (1) A valid, unexpired United States passport;
    (2) An original or government-issued certified birth certificate 
with a registrar's raised, embossed, impressed or multicolored seal, 
registrar's signature, and the date the certificate was filed with the 
registrar's office, which must be within 1 year of birth, together with 
a government-issued picture identification of the individual named in 
the birth certificate (the birth certificate must establish that the 
person was born in the United States or in an outlying possession, as 
defined in section 101(a)(29) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)(29)));
    (3) An original United States naturalization certificate with raised 
seal, INS Form N-550 or INS Form N-570, together with a government-
issued picture identification of the individual named in the 
certificate;
    (4) An original certification of birth abroad with raised seal, 
Department of State Form FS-545 or Form DS-1350, together with a 
government-issued picture identification of the individual named in the 
certificate;
    (5) An original certificate of United States citizenship with raised 
seal, INS Form N-560 or Form N-561, together with a government-issued 
picture identification of the individual named in the certificate; or
    (6) In the case of training provided to a federal employee 
(including military personnel) pursuant to a contract between a federal 
agency and a Provider, the agency's written certification as to its 
employee's United States citizenship/nationality, together with the 
employee's government-issued credentials or other federally-issued 
picture identification.
    (b) Exception. Notwithstanding paragraph (a) of this section, a 
Provider is required to provide notification to the Attorney General 
with respect to any individual specified by the Under Secretary of 
Transportation for Security. Individuals specified by the Under 
Secretary of Transportation for Security will be identified by 
procedures developed by the Department of Transportation and are not 
eligible for expedited processing under Sec. 105.12 of this part.



Sec. 105.12  Notification for candidates eligible for expedited processing.

    (a) Expedited processing. The Attorney General has determined that 
providing aviation training to certain categories of candidates presents 
a minimal additional risk to aviation or national security because of 
the aviation training already possessed by these individuals or because 
of risk assessments conducted by other agencies. Therefore, the 
following categories of candidates are eligible for expedited 
processing, unless the candidate is an individual specified by the Under 
Secretary of Transportation for Security:
    (1) Foreign nationals who are current and qualified as pilot in 
command, second in command, or flight engineer with respective 
certificates with ratings recognized by the FAA for aircraft with a 
maximum certificated takeoff weight of over 12,500 pounds, or who are 
currently employed and qualified by U.S. regulated air carriers as 
pilots on aircraft with a maximum certificated takeoff weight of 12,500 
pounds or more;
    (2) Foreign nationals who are commercial, governmental, corporate, 
or military pilots of aircraft with a maximum certificated takeoff 
weight of 12,500 pounds or more who are receiving

[[Page 441]]

training on a particular aircraft in connection with the sale of that 
aircraft, provided that the training provided is limited to 
familiarization (i.e., training required by one who is already a 
competent pilot to become proficient in configurations and variations of 
a new aircraft) and not initial qualification or type rating; or
    (3) Foreign military or law enforcement personnel who must receive 
training on a particular aircraft given by the United States to a 
foreign government pursuant to a draw-down authorized by the President 
under section 506(a)(2) of the Foreign Assistance Act of 1961, as 
amended (22 U.S.C. 2318(a)(2)), if the training provided is limited to 
familiarization.
    (b) Notification. Before a Provider may conduct training for a 
candidate eligible for expedited processing under paragraph (a) of this 
section, the Provider must submit the following information to the 
Department:
    (1) The full name of the candidate;
    (2) A unique student identification number created by the Provider 
as a means of identifying records concerning the candidate;
    (3) Date of birth;
    (4) Country of citizenship;
    (5) Passport issuing authority;
    (6) Dates of training; and
    (7) The category of expedited processing under paragraph (a) of this 
section for which the candidate qualifies.
    (c) Commencement of training. (1) The notification must be provided 
electronically to the Department by the Provider in the specific format 
and by the specific means identified by the Department. Notification 
must be made by electronic mail. Only notifications sent from an 
electronic mail address registered as a Provider will be accepted. 
Specific details about the mechanism for the notification will be made 
available by the Department and distributed through the FAA.
    (2) After the complete notification is furnished to the Department, 
the Provider may commence training the candidate as soon as the Provider 
receives a response from the Department that the individual does not 
present a risk to aviation or national security as a result of the risk 
assessment conducted pursuant to section 113 of ATSA and the foreign 
national candidate presents a valid passport establishing his or her 
identity to the Provider. Receipt of this response from the Department 
will be deemed approval by the Department to commence training.
    (d) Records. When a Provider conducts training for a candidate 
eligible for expedited processing, the Provider must retain a copy of 
the relevant pages of the passport and other records to document how the 
Provider made the determination that the candidate was eligible. The 
Provider also must retain certain identifying records regarding the 
candidate, including date of birth, place of birth, passport issuing 
authority, and passport number. The Provider must be able to reference 
these records by the unique student identification number provided to 
the Department pursuant to this section. Providers also are encouraged 
to maintain photographs of all candidates trained by the Provider. Such 
records must be maintained for at least three years following the 
conclusion of training by the Provider. The Provider must also be able 
to use the unique student identification number to cross-reference any 
other documentation that the FAA may require the Provider to retain 
regarding the candidate.



Sec. 105.13  Notification for candidates not eligible for expedited processing.

    (a) A Provider must submit a complete Flight Training Candidate 
Checks Program (FTCCP) form and arrange for the submission of 
fingerprints to the Department in accordance with this section prior to 
providing flight training, except with respect to persons whom the 
Provider has determined, as provided in Sec. 105.11 of this part, are 
not subject to a security risk assessment. A separate FTCCP form must be 
submitted for each course or instance of training requested by a 
candidate. A set of fingerprints must be submitted in accordance with 
this rule prior to the commencement of any training. Where a Provider 
enlists the assistance of another Provider in training a candidate, no 
additional request need be submitted, as long as the specific instance 
of training has been approved.
    (b) The completed FTCCP form must be sent to the Attorney General 
via

[[Page 442]]

electronic submission at https://www.flightschoolcandidates.gov. The 
form must be submitted no more than three months prior to the proposed 
training dates. No paper submissions of this form will be accepted.
    (1) In order to ensure that such electronic submissions are made by 
FAA certificated training providers, Providers must receive initial 
access to the system through the FAA. Providers should register through 
their local FAA Flight Standards District Offices. The FAA has decided 
that registration will be only by appointment. Upon registration, 
Providers will be sent (via electronic mail) an access password to use 
the system.
    (2) Candidates may complete the online FTCCP form at https://
www.flightschoolcandidates.gov to reduce the burden on the Provider. 
After the form has been completed by a candidate, it will be forwarded 
electronically to the Provider for verification that the candidate is a 
bona fide applicant. Verification by the Provider will be considered 
submission of the form for purposes of paragraph (a) of this section. To 
reduce the burden on the candidates, personal information needs only to 
be updated, rather than reentered, for each subsequent training request.
    (c) Candidates must submit fingerprints to the Federal Bureau of 
Investigation (FBI) as part of the identification process. These 
fingerprints must be taken by, or under the supervision of, a federal, 
state, or local law enforcement agency, or by another entity approved by 
the Director of the Foreign Terrorist Tracking Task Force, in 
consultation with the FBI's Criminal Justice Information Services 
Division. Where available, fingerprints may be taken by U.S. government 
personnel at a United States embassy or consulate. Law enforcement 
agencies and U.S. diplomatic installations are not required to 
participate in this process, but their cooperation is strongly 
encouraged. Any individual taking fingerprints as part of the 
notification process must comply with the following requirements when 
taking and processing fingerprints to ensure the integrity of the 
process:
    (1) Candidates must provide two forms of identification at the time 
of fingerprinting. In the case of aliens, one of the forms of 
identification must be the individual's passport. In the case of United 
States citizens or nationals designated by the Under Secretary of 
Transportation for Security, a valid photo driver's license issued in 
the United States may be submitted in lieu of a passport;
    (2) The fingerprints must be taken under the direct observation of a 
law enforcement or consular officer, or another specifically authorized 
individual. Individuals other than law enforcement or consular officers 
will only be approved on a case-by-case basis by the Director of the 
Foreign Terrorist Tracking Task Force, in consultation with the FBI's 
Criminal Justice Information Services Division, upon a showing that they 
possess the necessary training and will ensure the integrity of the 
fingerprinting process;
    (3) The fingerprints must be processed by means approved by the 
Director of the Foreign Terrorist Tracking Task Force, in consultation 
with the FBI's Criminal Justice Information Services Division;
    (4) The fingerprint submissions must be forwarded to the FBI in the 
manner specified by the Director of the Foreign Terrorist Tracking Task 
Force, in consultation with the FBI's Criminal Justice Information 
Services Division;
    (5) Officials taking fingerprints must ensure that any fingerprints 
provided to the FBI are not placed within the control of the candidate 
or the Provider at any time; and
    (6) Candidates must pay for all costs associated with taking and 
processing their fingerprints.
    (d) In accordance with Public Law 101-515, as amended, the Director 
of the FBI is authorized to establish and collect fees to process 
fingerprint identification records and name checks for certain purposes, 
including non-criminal justice and licensing purposes. In addition to 
the cost to the FBI for conducting its review, other fees may be 
imposed, including the cost of taking the fingerprints and the cost of 
processing the fingerprints and submitting them to the FBI for review. 
Because the total fee may vary by agency, the

[[Page 443]]

candidate must check with the entity taking the fingerprints to 
determine the applicable total fee. This payment must be made at the 
designated rate for each set of fingerprints submitted.
    (e) In some cases, candidates seeking training from Providers abroad 
may be unable to obtain fingerprints. If a Provider located in a country 
other than the United States can demonstrate that compliance with the 
fingerprint requirement is not practicable, a temporary waiver of the 
requirement may be requested by contacting the Foreign Terrorist 
Tracking Task Force. The Director of the Foreign Terrorist Tracking Task 
Force will have the discretion to grant the waiver, deny the waiver, or 
prescribe a reasonable, alternative manner of complying with the 
fingerprint requirement for each Provider location.
    (f) The 45-day review period by the Department will not start until 
all the required information has been submitted, including fingerprints.



Sec. 105.14  Risk assessment for candidates.

    (a) It is the responsibility of the Department of Justice to conduct 
a risk assessment for each candidate. The Department has made an initial 
determination that providing training to the aliens in the categories 
set forth in Sec. 105.12(a) of this part presents minimal additional 
risk to aviation or national security and therefore has established an 
expedited processing procedure for these aliens. Based on the 
information contained in each FTCCP form and the corresponding set of 
fingerprints, the Department will determine whether a candidate not 
granted expedited processing presents a risk to aviation or national 
security.
    (b) After submission of the FTCCP form by the Provider, the 
Department will perform a preliminary risk assessment.
    (1) If the Department determines that a candidate does not present a 
risk to aviation or national security as a result of the preliminary 
risk assessment, the candidate or the Provider will be notified 
electronically that the Provider may supply the candidate with the 
appropriate materials and instructions to complete the fingerprinting 
process described in Sec. 105.13(c) and (d) of this part.
    (2) If the Department determines that the candidate presents a risk 
to aviation or national security, when appropriate, it will notify the 
Provider electronically that training is prohibited.
    (3) For each complete training request submitted by a Provider, the 
Department will promptly conduct an appropriate risk assessment. Every 
effort will be made to respond to a training request in the briefest 
time possible. In routine cases, the Department anticipates granting 
approval to train within a fraction of the 45-day notification period 
after receiving a complete, properly submitted request, including 
fingerprints. In the unlikely event that no notification or 
authorization by the Department has occurred within 45 days after the 
proper submission under these regulations of all the required 
information, the Provider may proceed with the training, upon 
establishing the candidate's identity in accordance with paragraph (c) 
of this section.
    (c) Providers must ascertain the identity of each candidate. For 
candidates who are not citizens or nationals of the United States 
designated by the Under Secretary of Transportation for Security, a 
Provider must inspect the candidate's passport and visa to verify the 
candidate's identity before providing training. Candidates who are 
citizens or nationals of the United States must present the 
documentation described in Sec. 105.11(a) of this part. If the 
candidate's identity cannot be verified, then the Provider cannot 
proceed with training.
    (d) If, at any time after training has begun, the Department 
determines that a candidate subject to this section being trained by a 
Provider presents a risk to aviation or national security, the 
Department shall notify the Provider to cease training. A Provider so 
notified shall immediately cease providing any training to the person, 
regardless of whether or in what manner such training commenced or had 
been

[[Page 444]]

authorized. The Provider who submitted the candidate's identifying 
information will be responsible for ensuring that the training is 
promptly halted, regardless of whether another Provider is currently 
training the candidate.
    (e) With regard to any determination as to an alien candidate's 
eligibility for training, when appropriate, the Department will inform 
the Secretary of State and the Secretary of Homeland Security as to the 
identity of the alien and the determination made.



PART 200--ALIEN TERRORIST REMOVAL PROCEDURES--Table of Contents




    Authority: Pub. L. 105-277, 112 Stat. 2681.

    Source: 64 FR 8496, Feb. 19, 1999, unless otherwise noted. 
Redesignated by Order No. 2662-2003 68 FR 9846, Feb. 28, 2003.



Sec. 200.1  Eligibility for Protection under the Convention Against Torture.

    A removal order under Title V of the Act shall not be executed in 
circumstances that would violate Article 3 of the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention, as implemented by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub. 
L. 105-277. Convention-based claims by aliens subject to removal under 
this Title shall be determined by the Attorney General, in consultation 
with the Secretary of State.

[[Page 445]]



   CHAPTER III--FEDERAL PRISON INDUSTRIES, INC., DEPARTMENT OF JUSTICE




  --------------------------------------------------------------------
Part                                                                Page
301             Inmate accident compensation................         447
302             Comments on UNICOR business operations......         455
345             Federal Prison Industries (FPI) inmate work 
                    programs................................         455

[[Page 447]]



PART 301--INMATE ACCIDENT COMPENSATION--Table of Contents




                           Subpart A--General

Sec.
301.101  Purpose and scope.
301.102  Definitions.
301.103  Inmate work assignments.
301.104  Medical attention.
301.105  Investigation and report of injury.
301.106  Repetitious accidents.

                       Subpart B--Lost-Time Wages

301.201  Applicability.
301.202  Determination of work-relatedness.
301.203  Payment of lost-time wages.
301.204  Continuation of lost-time wages.
301.205  Appeal of determination.

  Subpart C--Compensation for Work-Related Physical Impairment or Death

301.301  Compensable and noncompensable injuries.
301.302  Work-related death.
301.303  Time parameters for filing a claim.
301.304  Representation of claimant.
301.305  Initial determination.
301.306  Appeal of determination.
301.307  Notice, time and place of committee action.
301.308  Committee reconsideration.
301.309  In-person hearing before the committee.
301.310  Witnesses.
301.311  Expenses associated with appearance at committee hearing.
301.312  Notice of committee determination.
301.313  Chief Operating Officer review.
301.314  Establishing the amount of award.
301.315  Review of entitlement.
301.316  Subsequent incarceration of compensation recipient.
301.317  Medical treatment following release.
301.318  Civilian compensation laws distinguished.
301.319  Exclusiveness of remedy.

    Authority: 18 U.S.C. 4126, 28 CFR 0.99, and by resolution of the 
Board of Directors of Federal Prison Industries, Inc.

    Source: 55 FR 9296, Mar. 12, 1990, unless otherwise noted.



                           Subpart A--General



Sec. 301.101  Purpose and scope.

    Pursuant to the authority granted at 18 U.S.C. 4126, the procedures 
set forth in this part govern the payment of accident compensation, 
necessitated as the result of work-related injuries, to federal prison 
inmates or their dependents. Compensation may be awarded via two 
separate and distinct programs:
    (a) Inmate Accident Compensation may be awarded to former federal 
inmates or their dependents for physical impairment or death resultant 
from injuries sustained while performing work assignments in Federal 
Prison Industries, Inc., in institutional work assignments involving the 
operation or maintenance of a federal correctional facility, or in 
approved work assignments for other federal entities; or,
    (b) Lost-time wages may be awarded to inmates assigned to Federal 
Prison Industries, Inc., to paid institutional work assignments 
involving the operation or maintenance of a federal correctional 
facility, or in approved work assignments for other federal entities for 
work-related injuries resulting in time lost from the work assignment.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2666, Jan. 18, 1994]



Sec. 301.102  Definitions.

    (a) For purposes of this part, the term work-related injury shall be 
defined to include any injury, including occupational disease or 
illness, proximately caused by the actual performance of the inmate's 
work assignment.
    (b)(1) For purposes of this part, the term release is defined as the 
removal of an inmate from a Bureau of Prisons correctional facility upon 
expiration of sentence, parole, final discharge from incarceration of a 
pretrial inmate, or transfer to a community corrections center or other 
non-federal facility, at the conclusion of the period of confinement in 
which the injury occurred.
    (2) In the case of an inmate who suffers a work-related injury while 
housed at a community corrections center, release is defined as the 
removal of the inmate from the community corrections center upon 
expiration of sentence, parole, or transfer to any non-federal facility, 
at the conclusion of the period of confinement in which the injury 
occurred.
    (3) In the case of an inmate who suffers a work-related injury while 
housed at a community corrections center and is subsequently transferred 
to a Bureau of Prisons facility, release is defined as

[[Page 448]]

the removal of the inmate from the Bureau of Prisons facility upon 
expiration of sentence, parole, or transfer to a community corrections 
center or other non-federal facility.
    (c) For purposes of this part, the term dependent is defined as the 
legally recognized spouse or child of an inmate for whose support the 
inmate is legally responsible in whole or part.
    (d) For purposes of this part, the term work detail supervisor may 
refer to either a Bureau of Prisons or a non-Bureau of Prisons 
supervisor.
    (e) For the purposes of this part, the phrase housed at or based at 
a ``Bureau of Prisons institution'' shall refer to an inmate that has a 
work assignment with a Bureau of Prisons institution or with another 
federal entity and is incarcerated at a Bureau of Prisons institution. 
For the purposes of this part, the phrase based at or housed at a 
``community corrections center'' shall refer to an inmate who has a work 
assignment for a non-Bureau of Prisons federal entity and is 
incarcerated at a community corrections center.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2666, Jan. 18, 1994]



Sec. 301.103  Inmate work assignments.

    The unit team of each inmate, which ordinarily designates work 
assignments, or whoever makes work assignments, shall review appropriate 
medical records, presentence reports, admission summaries, and all other 
available information prior to the designation of an inmate to a work 
assignment in an effort to preclude the assignment of an inmate to a 
work assignment not compatible with the inmate's physical ability or 
condition.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2667, Jan. 18, 1994]



Sec. 301.104  Medical attention.

    Whenever an inmate worker is injured while in the performance of 
assigned duty, regardless of the extent of the injury, the inmate shall 
immediately report the injury to his official work detail supervisor. In 
the case of injuries on work details for other federal entities, the 
inmate shall also report the injury as soon as possible to community 
corrections or institution staff, as appropriate. The work detail 
supervisor shall immediately secure such first aid, medical, or hospital 
treatment as may be necessary for the proper treatment of the injured 
inmate. First aid treatment may be provided by any knowledgeable 
individual. Medical, surgical, and hospital care shall be rendered under 
the direction of institution medical staff for all inmates based at 
Bureau of Prisons institutions. In the case of inmates based at 
community corrections centers, medical care shall be arranged by the 
work supervisor or by community corrections center staff in accordance 
with the medical needs of the inmate. Refusal by an inmate worker to 
accept such medical, surgical, hospital, or first aid treatment 
recommended by medical staff or by other medical professionals may 
result in denial of any claim for compensation for any impairment 
resulting from the injury.

[59 FR 2667, Jan. 18, 1994]



Sec. 301.105  Investigation and report of injury.

    (a) After initiating necessary action for medical attention, the 
work detail supervisor shall immediately secure a record of the cause, 
nature, and exact extent of the injury. The work detail supervisor shall 
complete a BP-140, Injury Report (Inmate), on all injuries reported by 
the inmate, as well as injuries observed by staff. In the case of 
injuries on work details for other federal entities, the work supervisor 
shall also immediately inform community corrections or institution 
staff, as appropriate, of the injury. The injury report shall contain a 
signed statement from the inmate on how the accident occurred. The names 
and statements of all witnesses (e.g., staff, inmates, or others) shall 
be included in the report. If the injury resulted from the operation of 
mechanical equipment, an identifying description or photograph of the 
machine or instrument causing the injury shall be obtained, to include a 
description of all safety equipment used by the injured inmate at the 
time of the injury. Staff shall provide the inmate with a copy of the 
injury report. Staff shall then forward the original

[[Page 449]]

and remaining copies of the injury report to the Institutional Safety 
Manager for review. In the case of inmates based at community 
corrections centers, the work detail supervisor shall provide the inmate 
with a copy of the injury report and shall forward the original and 
remaining copies of the injury report to the Community Corrections 
Manager responsible for the particular community corrections center 
where the inmate is housed.
    (b) The Institution Safety Manager or Community Corrections Manager 
shall ensure that a medical description of the injury is included on the 
BP-140 whenever the injury requires medical attention. The Institution 
Safety Manager or Community Corrections Manager shall also ensure that 
the appropriate sections of BP-140, Page 2, Injury--Lost-Time Follow-Up 
Report, are completed and that all reported work injuries are properly 
documented.

[59 FR 2667, Jan. 18, 1994]



Sec. 301.106  Repetitious accidents.

    If an inmate worker is involved in successive accidents on a 
particular work site in a comparatively short period of time, regardless 
of whether injury occurs, and the circumstances of the accidents 
indicate an awkwardness or ineptitude that, in the opinion of the 
inmate's work supervisor, implies a danger of further accidents in the 
task assigned, the inmate shall be assigned to another task more 
suitable to the inmate's ability.



                       Subpart B--Lost-Time Wages



Sec. 301.201  Applicability.

    Lost-time wages shall be available only for inmates based at Bureau 
of Prisons institutions.

[59 FR 2667, Jan. 18, 1994]



Sec. 301.202  Determination of work-relatedness.

    (a) When the institution safety manager receives notice, or has 
reason to believe, a work-related injury may result in time lost from 
the work assignment, he or she shall present BP-140, Pages 1 and 2 (with 
the appropriate sections completed) to the Institution Safety Committee 
at the Committee's next regularly scheduled meeting. The Safety 
Committee shall make a determination of the injury's work-relatedness 
based on the available evidence and testimony. The determination shall 
be recorded on BP-140, Page 2, a copy of which shall be provided to the 
inmate.
    (b) A determination of work-relatedness for purposes of awarding 
lost-time wages is not confirmation on the validity of any subsequent 
claim to receive compensation for work-related physical impairment or 
death.

[55 FR 9296, Mar. 12, 1990. Redesignated at 59 FR 2667, Jan. 18, 1994]



Sec. 301.203  Payment of lost-time wages.

    (a) An inmate worker may receive lost-time wages for the number of 
regular work hours absent from work due to injury sustained in the 
performance of the assigned work.
    (b) Lost-time wages are paid for time lost in excess of three 
consecutively scheduled workdays. The day of injury is considered to be 
the first workday regardless of the time of injury.
    (c) An inmate may receive lost-time wages at the rate of 75% of the 
standard hourly rate of the inmate's regular work assignment at the time 
of the injury.

[55 FR 9296, Mar. 12, 1990. Redesignated at 59 FR 2667, Jan. 18, 1994]



Sec. 301.204  Continuation of lost-time wages.

    (a) Once approved, the inmate shall receive lost-time wages until 
the inmate:
    (1) Is released;
    (2) Is transferred to another institution for reasons unrelated to 
the work injury;
    (3) Returns to the pre-injury work assignment;
    (4) Is reassigned to another work area or program for reasons 
unrelated to the sustained work injury, or is placed into Disciplinary 
Segregation; or,
    (5) Refuses to return to a regular work assignment or to a lighter 
duty work assignment after medical certification of fitness for such 
duty.
    (b) An inmate medically certified as fit for return to work shall 
sustain no monetary loss due to a required change in work assignment. 
Where there is no

[[Page 450]]

light duty or regular work assignment available at the same rate of pay 
as the inmate's pre-injury work assignment, the difference shall be paid 
in lost-time wages. Lost-time wages are paid until a light duty or 
regular work assignment at the same pay rate as the inmate's pre-injury 
work assignment is available.

[55 FR 9296, Mar. 12, 1990. Redesignated at 59 FR 2667, Jan. 18, 1994]



Sec. 301.205  Appeal of determination.

    An inmate who disagrees with the decision regarding payment of lost-
time wages may appeal that decision exclusively through the 
Administrative Remedy Procedure. (See 28 CFR part 542.)

[55 FR 9296, Mar. 12, 1990. Redesignated at 59 FR 2667, Jan. 18, 1994]



  Subpart C--Compensation for Work-Related Physical Impairment or Death



Sec. 301.301  Compensable and noncompensable injuries.

    (a) No compensation for work-related injuries resulting in physical 
impairment shall be paid prior to an inmate's release.
    (b) Compensation may only be paid for work-related injuries or 
claims alleging improper medical treatment of a work-related injury. 
This ordinarily includes only those injuries suffered during the 
performance of an inmate's regular work assignment. However, injuries 
suffered during the performance of voluntary work in the operation or 
maintenance of the institution, when such work has been approved by 
staff, may also be compensable.
    (c) Compensation is not paid for injuries sustained during 
participation in institutional programs (such as programs of a social, 
recreational, or community relations nature) or from maintenance of 
one's own living quarters. Furthermore, compensation shall not be paid 
for injuries suffered away from the work location (e.g., while the 
claimant is going to or leaving work, or going to or coming from lunch 
outside of the work station or area).
    (d) Injuries sustained by inmate workers willfully or with intent to 
injure someone else, or injuries suffered in any activity not related to 
the actual performance of the work assignment are not compensable, and 
no claim for compensation for such injuries will be approved. Willful 
violation of rules and regulations may result in denial of compensation 
for any resulting injury.



Sec. 301.302  Work-related death.

    A claim for compensation as the result of work-related death may be 
filed by a dependent of the deceased inmate up to one year after the 
inmate's work-related death. The claim shall be submitted directly to 
the Claims Examiner, Federal Bureau of Prisons, 320 First Street NW., 
Washington, DC 20534.



Sec. 301.303  Time parameters for filing a claim.

    (a) No more than 45 days prior to the date of an inmate's release, 
but no less than 15 days prior to this date, each inmate who feels that 
a residual physical impairment exists as a result of an industrial, 
institution, or other work-related injury shall submit a FPI Form 43, 
Inmate Claim for Compensation on Account of Work Injury. Assistance will 
be given the inmate to properly prepare the claim, if the inmate wishes 
to file. In each case a definite statement shall be made by the claimant 
as to the impairment caused by the alleged injury. The completed claim 
form shall be submitted to the Institution Safety Manager or Community 
Corrections Manager for processing.
    (b) In the case of an inmate based at a community corrections center 
who is being transferred to a Bureau of Prisons institution, the 
Community Corrections Manager shall forward all materials relating to an 
inmate's work-related injury to the Institution Safety Manager at the 
particular institution where an inmate is being transferred, for 
eventual processing by the Safety Manager prior to the inmate's release 
from that institution.
    (c) Each claimant shall submit to a medical examination to determine 
the degree of physical impairment. Refusal, or failure, to submit to 
such a medical examination shall result in the

[[Page 451]]

forfeiture of all rights to compensation. In each case of visible 
impairment, disfigurement, or loss of member, photographs shall be taken 
to show the actual condition and shall be transmitted with FPI Form 43.
    (d) The claim, after completion by the physician conducting the 
impairment examination, shall be returned to the Institution Safety 
Manager or Community Corrections Manager for final processing. It shall 
then be forwarded promptly to the Claims Examiner, Federal Bureau of 
Prisons, 320 First Street NW., Washington, DC 20534.
    (e) It is the responsibility of each claimant to advise the Claims 
Examiner of his or her current address, in writing, at all times during 
the pendency of a claim for Inmate Accident Compensation.
    (f) When circumstances preclude submission in accordance with the 
provisions of paragraph (a) of this section, a claim may be accepted up 
to 60 days following release. Additionally, a claim for impairment may 
be accepted up to one year after release, for good cause shown. In such 
cases the claim shall be submitted directly to the Claims Examiner, 
Federal Bureau of Prisons, 320 First Street NW., Washington, DC 20534.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2667, Jan. 18, 1994]



Sec. 301.304  Representation of claimant.

    (a) Any person may represent the claimant's interest in any 
proceeding for determination of a claim under this part, so long as that 
person is not confined in any federal, state or local correctional 
facility. Written appointment of a representative, signed by the 
claimant, must be submitted before the representative's authority to act 
on behalf of the claimant may be acknowledged.
    (b) It is not necessary that a claimant employ an attorney or other 
person to assert a claim or effect collection of an award. Under no 
circumstances will the assignment of any award be recognized, nor will 
attorney fees be paid by Federal Prison Industries, Inc.



Sec. 301.305  Initial determination.

    A claim for inmate accident compensation shall be determined by a 
Claims Examiner under authority delegated by the Board of Directors of 
Federal Prison Industries, Inc., pursuant to 28 CFR 0.99. In determining 
the claim, the Claims Examiner will consider all available evidence. 
Written notice of the determination, including the reasons therefore, 
together with notification of the right to appeal the determination, 
shall be mailed to the claimant at the claimant's last known address, or 
to the claimant's duly appointed representative.



Sec. 301.306  Appeal of determination.

    (a) An Inmate Accident Compensation Committee (hereafter referred to 
as the ``Committee'') shall be appointed by the Chief Operating Officer, 
Federal Prison Industries, Inc., under authority delegated by the Board 
of Directors of Federal Prison Industries, Inc., pursuant to 28 CFR 
0.99. The Committee shall consist of four members and four alternate 
members, with any three thereof required to form a quorum for decision-
making purposes.
    (b) Any claimant not satisfied with any decision of the Claims 
Examiner concerning the amount or right to compensation shall, upon 
written request made within 30 days after the date of issuance of such 
determination, or up to 30 days thereafter upon a showing of reasonable 
cause, be afforded an opportunity for either an in-person hearing before 
the Committee, or Committee reconsideration of the decision. A claimant 
may request an in-person hearing or reconsideration by writing to the 
Inmate Accident Compensation Committee, Federal Bureau of Prisons, 320 
First Street NW., Washington, DC 20534.
    (c) Upon receipt of claimant's request, a determination will be made 
regarding the timeliness of the filing. If the request is timely filed, 
or if reasonable cause exists to accept the request filed in an untimely 
manner, the request shall be accepted. Once accepted, a copy of the 
information upon which the Claims Examiner's initial determination was 
based shall be mailed to the claimant at the claimant's last known 
address, or to claimant's duly

[[Page 452]]

appointed representative, provided the release of such information is 
not determined to pose a threat to the safety of the claimant, any other 
inmate, or staff.



Sec. 301.307  Notice, time and place of committee action.

    (a) Committee action shall ordinarily occur within 60 days of the 
receipt of claimant's request, except as provided in this section. 
Notice of the date set for Committee action shall be mailed to the 
claimant at the claimant's last known address, or to claimant's duly 
appointed representative. All Committee action shall be conducted at the 
Central Office of the Bureau of Prisons, 320 First Street NW., 
Washington, DC 20534.
    (b) A hearing or reconsideration may be postponed at the option of 
the Committee, or, if good cause is shown, upon request of the claimant. 
A claimant may change the request from either hearing to reconsideration 
or reconsideration to hearing, provided notice of such change is 
received at least 10 days prior to the previously scheduled action.



Sec. 301.308  Committee reconsideration.

    If the claimant elects to have the Committee reconsider any decision 
of the Claims Examiner, the claimant may submit documentary evidence 
which the Committee shall consider in addition to the original record. 
The Committee must receive evidence no less than 10 days prior to the 
date of reconsideration, and may request additional documentary evidence 
from the claimant or any other source.



Sec. 301.309  In-person hearing before the committee.

    (a) The appeal shall be considered to have been abandoned if the 
claimant fails to appear at the time and place set for the hearing and 
does not, within 10 days after the time set for that hearing, show good 
cause for failure to appear.
    (b) In conducting the hearing, the Committee is not bound by common 
law or statutory rules of evidence, or by technical or formal rules of 
procedure, but may conduct the hearing in such manner as to best 
ascertain the rights and obligations of the claimant and the government. 
At such hearing, the claimant shall be afforded an opportunity to 
present evidence in support of the claim under review.
    (c) The Committee shall consider all evidence presented by the 
claimant, and shall, in addition, consider any other evidence as the 
Committee may determine to be useful in evaluating the claim. Evidence 
may be presented orally and/or in the form of written statements and 
exhibits.
    (d) A representative appointed in accordance with the provisions of 
this section may make or give, on behalf of the claimant, any request or 
notice relative to any proceeding before the Committee. A representative 
shall be entitled to present or elicit evidence or make allegations as 
to fact and law in any proceeding affecting the claimant and to request 
information with respect to the claim. Likewise, any request for 
additional information, or notice to any claimant of any administrative 
action, determination, or decision, may be sent to the representative of 
such claimant, and shall have the same force and effect as if it had 
been sent to the claimant.
    (e) In order to fully evaluate the claim, the Committee may question 
the claimant and any witness(es) appearing before the Committee on 
behalf of the claimant or government.
    (f) Claimant, or claimant's representative, may question the 
Committee or any witness(es) appearing before the Committee on behalf of 
the government, but only on matters determined by the Committee to be 
relevant to its evaluation of the claim.
    (g) The hearing shall be recorded, and a copy of the recording or, 
at the discretion of the Committee, a transcript thereof shall be made 
available to the claimant upon request, provided such request is made 
not later than 90 days following the date of the hearing.



Sec. 301.310  Witnesses.

    (a) If a claimant wishes to present witnesses at the hearing, the 
claimant must provide the Committee, no less than 10 days before the 
scheduled hearing date, the name and address of each proposed witness, 
along with an outline

[[Page 453]]

of each witness' testimony. The Committee may limit the number of 
witnesses who may appear at a hearing, however, the Committee has no 
authority to compel the attendance of any witness.
    (b) Any person confined in a Federal, State, or local penal or 
correctional institution at the time of the hearing may not appear as a 
witness, but that person's testimony may be submitted in the form of a 
written statement.



Sec. 301.311  Expenses associated with appearance at committee hearing.

    Federal Prison Industries, Inc., may not assume responsibility for 
any expenses incurred by the claimant, claimant's representative, or any 
witness appearing on behalf of the claimant in connection with 
attendance at the hearing, as well as any other costs relating to any 
representative, witnesses, or evidence associated with a hearing before 
the Committee.



Sec. 301.312  Notice of committee determination.

    The Committee shall mail written notice of its decision to affirm, 
reverse, or amend the Claims Examiner's initial determination, with the 
reasons for its decision, to the claimant at the claimant's last known 
address, or to claimant's duly appointed representative, no later than 
30 days after the date of the hearing unless the Committee needs to make 
a further investigation as a result of information received at the 
hearing. If the Committee conducts further investigation subsequent to 
the hearing, the decision notice shall be mailed no later than 30 days 
after the conclusion of the Committee's investigation.



Sec. 301.313  Chief Operating Officer review.

    Any claimant not satisfied with the Committee's reconsidered 
decision or decision after a hearing may appeal such decision to the 
Chief Operating Officer, Federal Prison Industries, Inc., 320 First 
Street NW., Washington, DC 20534. A written request for such an appeal 
must be received no later than 90 days after the date of notice of the 
Committee's decision. The Chief Operating Officer shall review the 
record and affirm, reverse or amend the Committee's decision no later 
than 90 days after receipt of claimant's notice of appeal. Written 
notice of the Chief Operating Officer's decision shall be mailed to the 
claimant's last known address, or to the claimant's representative.



Sec. 301.314  Establishing the amount of award.

    (a) If a claim for Inmate Accident Compensation is approved, the 
amount of compensation shall be based upon the degree of physical 
impairment existent at the time of the claimant's release regardless of 
when during the claimant's period of confinement the injury was 
sustained. No claim for compensation will be approved if full recovery 
occurs while the inmate is in custody and no impairment remains at the 
time of release.
    (b) In determining the amount of accident compensation to be paid, 
the permanency and severity of the injury in terms of functional 
impairment shall be considered. The provisions of the Federal Employees' 
Compensation Act (FECA) (5 U.S.C. 8101, et seq.) shall be followed when 
practicable. The FECA establishes a set number of weeks of compensation 
applicable for injuries to specific body members or organs (section 
8107).
    (c) All awards of Inmate Accident Compensation shall be based upon 
the minimum wage (as prescribed by the Fair Labor Standards Act).
    (1) For body members or organs covered under section 8107, the 
minimum wage applicable at the time of the award shall be used as the 
basis for determining the amount of compensation. Awards regarding 
injury to body members or organs covered under section 8107 shall be 
paid in a lump sum. Acceptance of such an award shall constitute full 
and final settlement of the claim for compensation.
    (2) For body members or organs not covered under section 8107, 
awards will be paid on a monthly basis because such awards are subject 
to periodic review of entitlement. The minimum wage applicable at the 
time of each monthly payment shall be used in determining the amount of 
each monthly payment. Monthly payments are ordinarily mailed the first 
day of the

[[Page 454]]

month following the month in which the award is effective.



Sec. 301.315  Review of entitlement.

    (a) Each monthly compensation recipient shall be required, upon 
request of the Claims Examiner, to submit to a medical examination, by a 
physician specified or approved by the Claims Examiner, to determine the 
current status of his physical impairment. Any reduction in the degree 
of physical impairment revealed by this examination shall result in a 
commensurate reduction in the amount of monthly compensation provided. 
Failure to submit to this physical examination shall be deemed refusal, 
and shall ordinarily result in denial of future compensation. The costs 
associated with this examination shall be borne by Federal Prison 
Industries, Inc.
    (b) Inasmuch as compensation awards are based upon the minimum wage, 
any income received by a compensation recipient which exceeds the annual 
income available at the minimum wage (based upon a 40 hour work week), 
including Social Security or veterans benefits received as the result of 
the work-related injury for which Inmate Accident Compensation has been 
awarded, shall be deemed excessive. The amount of compensation payable 
to a claimant with an income deemed excessive shall be reduced at the 
rate of one dollar for each two dollars of earned and benefit income 
which exceeds the annual income available at minimum wage. Each monthly 
compensation recipient shall be required to provide a statement of 
earnings on an annual basis, or as otherwise requested. Failure to 
provide this statement shall result in the suspension or denial of all 
Inmate Accident Compensation benefits until such time as satisfactory 
evidence of continued eligibility is provided.



Sec. 301.316  Subsequent incarceration of compensation recipient.

    If a claimant, who has been awarded compensation on a monthly basis, 
is or becomes incarcerated at any federal, state, or local correctional 
facility, monthly compensation payments payable to the claimant shall 
ordinarily be suspended until such time as the claimant is released from 
the correctional facility.

[59 FR 2667, Jan. 18, 1994]



Sec. 301.317  Medical treatment following release.

    Federal Prison lndustries, Inc., may not pay the cost of medical, 
hospital treatment, or any other related expense incurred after release 
from confinement unless such cost is authorized by the Claims Examiner 
in advance, or the Claims Examiner determines that circumstances warrant 
the waiver of this requirement. Generally, the payment of such costs is 
limited to impairment evaluations, or treatments intended to reduce the 
degree of physical impairment, conducted at the direction of the Claims 
Examiner. The amount of a payment for medical treatment is limited to 
reasonable expenses incurred, such as those amounts authorized under the 
applicable fee schedule established pursuant to 42 U.S.C. 1395w-4 for 
the Department of Health and Human Services Medicare program.

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2667, Jan. 18, 1994]



Sec. 301.318  Civilian compensation laws distinguished.

    The Inmate Accident Compensation system is not obligated to comply 
with the provisions of any other system of worker's compensation except 
where stated in this part. Awards made under the provisions of the 
Inmate Accident Compensation procedure differ from awards made under 
civilian workmen's compensation laws in that hospitalization is usually 
completed prior to the inmate's release from the institution and, except 
for a three-day waiting period, the inmate receives wages while absent 
from work. Other factors necessarily must be considered that do not 
enter into the administration of civilian workmen's compensation laws. 
As in the case of federal employees who allege they have sustained work-
related injuries, the burden of proof lies with the claimant to 
establish that the claimed impairment is causally related to the 
claimant's work assignment.

[[Page 455]]



Sec. 301.319  Exclusiveness of remedy.

    Inmates who are subject to the provisions of these Inmate Accident 
Compensation regulations are barred from recovery under the Federal Tort 
Claims Act (28 U.S.C. 2671 et seq.). Recovery under the Inmate Accident 
Compensation procedure was declared by the U.S. Supreme Court to be the 
exclusive remedy in the case of work-related injury. U.S. v. Demko, 385 
U.S. 149 (1966).

[55 FR 9296, Mar. 12, 1990, as amended at 59 FR 2667, Jan. 18, 1994]



PART 302--COMMENTS ON UNICOR BUSINESS OPERATIONS--Table of Contents




    Authority: 18 U.S.C. 4126, 28 CFR 0.99, and by resolution of the 
Board of Directors of Federal Prison Industries, Inc.



Sec. 302.1  Public and private sector comment procedures.

    (a) Any interested party having any comment concerning the business 
operations of Federal Prison Industries, Inc. (UNICOR) may write to the 
Chief Operating Officer of UNICOR, or to the Chairman of the Board of 
Directors of UNICOR, and bring such matters to the attention of either 
or both officials. Where appropriate, a response shall promptly be made. 
The Board shall be kept advised of all comments and responses.
    (b) Correspondence should be addressed as follows:
    (1) Chief Operating Officer, Federal Prison Industries, Inc., 320 
First Street, NW., ACACIA Bldg. Room 615, Washington, DC 20534, Attn: 
Comment Procedures; or
    (2) Board of Directors, Federal Prison Industries, Inc., P.O. Box 
2807, Washington, DC 20013-2807, Attn: Comment Procedures.
    (c) This section does not apply to inmate complaints which are 
properly raised through the procedures provided in the Bureau of 
Prisons' rule on Administrative Remedy (28 CFR part 42).

[55 FR 30668, July 26, 1990]



PART 345--FEDERAL PRISON INDUSTRIES (FPI) INMATE WORK PROGRAMS--Table of Contents




                      Subpart A--Purpose and Scope

Sec.
345.10  Purpose and scope.

                         Subpart B--Definitions

345.11  Definitions.

                   Subpart C--Position Classification

345.20  Position classification.

               Subpart D--Recruitment and Hiring Practices

345.31  Recruitment.
345.32  Hiring.
345.33  Waiting list hiring exceptions.
345.34  Refusal to employ.
345.35  Assignments to FPI.

      Subpart E--Inmate Worker Standards and Performance Appraisal

345.40  General.
345.41  Performance appraisal for inmate workers.
345.42  Inmate worker dismissal.

                   Subpart F--Inmate Pay and Benefits

345.50  General.
345.51  Inmate pay.
345.52  Premium pay.
345.53  Piecework rates.
345.54  Overtime compensation.
345.55  Longevity pay.
345.56  Vacation pay.
345.57  Administrative pay.
345.58  Holiday pay.
345.59  Inmate performance pay.
345.60  Training pay.
345.61  Inmate earnings statement.
345.62  Inmate accident compensation.
345.63  Funds due deceased inmates.
345.64  Referral of releasable medical data to FPI staff.
345.65  Inmate medical work limitation.
345.66  Claims limitation.
345.67  Retention of benefits.

                        Subpart G--Awards Program

345.70  General.
345.71  Official commendations.
345.72  Cash bonus or cash award.
345.73  Procedures for granting awards for suggestions or inventions.
345.74  Awards for special achievements for inmate workers.

[[Page 456]]

         Subpart H--FPI Inmate Training and Scholarship Programs

345.80  General.
345.81  Pre-industrial training.
345.82  Apprenticeship training.
345.83  Job safety training.
345.84  The FPI scholarship fund.

    Authority: 18 U.S.C. 4126, 28 CFR 0.99, and by resolution of the 
Board of Directors of Federal Prison Industries, Inc.

    Source: 60 FR 15827, Mar. 27, 1995, unless otherwise noted.



                      Subpart A--Purpose and Scope



Sec. 345.10  Purpose and scope.

    It is the policy of the Bureau of Prisons to provide work to all 
inmates (including inmates with a disability who, with or without 
reasonable accommodations, can perform the essential tasks of the work 
assignment) confined in a federal institution. Federal Prison 
Industries, Inc. (FPI) was established as a program to provide 
meaningful work for inmates. This work is designed to allow inmates the 
opportunity to acquire the knowledge, skills, and work habits which will 
be useful when released from the institution. There is no statutory 
requirement that inmates be paid for work in an industrial assignment. 
18 U.S.C. 4126, however, provides for discretionary compensation to 
inmates working in Industries. Under this authority, inmates of the same 
grade jobs, regardless of the basis of pay (hourly, group piece, or 
individual piece rates) shall receive approximately the same 
compensation. All pay rates under this part are established at the 
discretion of Federal Prison Industries, Inc. Any alteration or 
termination of the rates shall require the approval of the Federal 
Prison Industries' Board of Directors. While the Warden is responsible 
for the local administration of Inmate Industrial Payroll regulations, 
no pay system is initiated or changed without prior approval of the 
Assistant Director, Industries, Education and Vocational Training 
(Assistant Director).



                         Subpart B--Definitions



Sec. 345.11  Definitions.

    (a) Federal Prison Industries, Inc. (FPI)-- A government corporation 
organizationally within the Bureau of Prisons whose mission is to 
provide work simulation programs and training opportunities for inmates 
confined in Federal correctional facilities. The commercial or ``trade'' 
name of Federal Prison Industries, Inc. is UNICOR. Most factories or 
shops of Federal Prison Industries, Inc. are commonly referred to as 
``UNICOR'' or as ``Industries''. Where these terms are used, they refer 
to FPI production locations and to the corporation as a whole. UNICOR, 
FPI, and Industries are used interchangeably in this manner. For these 
purposes, Federal Prison Industries, Inc. will hereinafter be referred 
to as FPI.
    (b) Superintendent of Industries (SOI)-- The Superintendent of 
Industries, also referred to as Associate Warden/Industries and 
Education, is responsible for the efficient management and operation of 
an FPI factory. Hereinafter, referred to as SOI.
    (c) FPI work status-- Assignment to an Industries work detail.
    (1) An inmate is in FPI work status if on the job, on sick call 
during the inmate's assigned hours, on furlough, on vacation, for the 
first thirty days on writ, for the first 30 days in administrative 
detention, or for the first 30 days on medical idle for FPI work-related 
injury so long as the injury did not result from an intentional 
violation by the inmate of work safety standards.
    (2) Full-time work status. A work schedule for an inmate consisting 
of 90% or more of the normal FPI factory work week.
    (3) Part-time work status. A work schedule of less than 90% of the 
normal FPI factory work week.
    (d) Unit Team-- Bureau of Prisons staff responsible for the 
management of inmates and the delivery of programs and services. The 
Unit Team may consist of a unit manager, case manager, correctional 
counselor, unit

[[Page 457]]

secretary, unit officer, education representative, and psychologist.
    (e) Unit Discipline Committee (UDC)-- The term Unit Discipline 
Committee refers to one or more institution staff members delegated by 
the Warden with the authority and duty to hold an initial hearing upon 
completion of the investigation concerning alleged charge(s) of inmate 
misconduct (see 28 CFR 541.15). The Warden shall authorize these staff 
members to impose minor sanctions for violation of prohibited act(s).
    (f) Discipline hearing officer (DHO)-- This term refers to an 
independent discipline hearing officer who is responsible for conducting 
Institution Discipline Hearings and who imposes appropriate sanctions 
for incidents of inmate misconduct referred for disposition following 
the hearing required by 28 CFR 541.15 before the UDC.
    (g) Pretrial inmate--The definition of pretrial inmate in 28 CFR 
551.101(a) is applicable to this part.

[60 FR 15827, Mar. 27, 1995, as amended at 61 FR 59168, Nov. 20, 1996; 
64 FR 32169, June 15, 1999]



                   Subpart C--Position Classification



Sec. 345.20  Position classification.

    (a) Inmate worker positions must be assigned an appropriate level of 
pay. All inmate workers shall be informed of the objectives and 
principles of pay classification as a part of the routine orientation of 
new FPI inmate workers.
    (b) The Warden and SOI have the responsibility for position 
classification at each location.



               Subpart D--Recruitment and Hiring Practices



Sec. 345.31  Recruitment.

    Inmate workers for FPI locations may be recruited through admission 
and orientation lectures or through direct recruiting.



Sec. 345.32  Hiring.

    (a) Inmate workers are ordinarily hired through waiting lists. 
Except as noted in Sec. 345.33, inmates are to be placed on the waiting 
lists in order of receipt of applications for work with Industries, and 
are to be hired in the same sequence.
    (b) Waiting lists are to be maintained and kept available for 
scrutiny by auditors and other staff with a need to know. SOI's are 
encouraged to maintain a waiting list for each FPI factory.



Sec. 345.33  Waiting list hiring exceptions.

    (a) Needed skills. An inmate may be hired ahead of other inmates on 
the waiting list if the inmate possesses needed skills and the SOI 
documents the reasons for the action in the position classification 
files.
    (b) Prior FPI work assignment. An inmate with prior FPI work 
experience during the inmate's current commitment and with no break in 
custody will ordinarily be placed within the top ten percent of the 
waiting lists unless the inmate was transferred for disciplinary 
reasons, was placed in segregation, or voluntarily left the FPI work 
assignment for non-program reasons (i.e. for some reason other than 
formal education, vocational training, drug abuse or similar formal 
programs). For example, an inmate transferred administratively for 
nondisciplinary reasons, and who has documented credit as a prior 
worker, is covered under the provisions of this paragraph.
    (c) Industry closing and relocation. When an FPI factory closes in a 
location with two or more FPI factories, an inmate worker affected may 
be transferred to remaining FPI factories ahead of the top portion of 
the inmates on the waiting lists, so there is no break in active duty 
with FPI. Such actions are also in order where the work force of an 
industry is reduced to meet institution or FPI needs. An inmate 
transferred under the provisions of this part will have the same 
benefits as any intra-industry transfer.
    (d) Disciplinary transfers. An inmate who is a disciplinary transfer 
from the last institution designated and who wishes re-assignment in FPI 
at the receiving institution may be hired on a case-by-case basis at the 
discretion of the SOI, who should consider the security level and 
reasons for the misconduct. Such an inmate, despite prior

[[Page 458]]

experience, is not due special placement on the waiting list, is not 
given advance hiring preference, and does not receive consideration for 
accelerated promotion back to the grade held at time of transfer.
    (e) Special needs. For special needs, such as Inmate Financial 
Responsibility assignment to assist in paying a significant financial 
obligation or for release preparation, the unit team may recommend an 
inmate for priority placement on the waiting list. Such placement must 
be documented and include the reason for the exception.



Sec. 345.34  Refusal to employ.

    (a) The SOI has authority to refuse an FPI assignment to an inmate 
who, in the judgment of the SOI, would constitute a serious threat to 
the orderly and safe operation of the FPI factory. A refusal to assign 
must be documented by a memorandum to the unit team listing reasons for 
the refusal, with a copy to the position classification files in FPI. 
Typically, the reasons should include other earlier (ordinarily within 
the past twelve months) documented violations of the FPI inmate worker 
standards or institution disciplinary regulations.
    (b) The refusal to assign is to be rescinded when, in the judgment 
of the SOI, the worker no longer constitutes a serious threat to the FPI 
industrial operation.



Sec. 345.35  Assignments to FPI.

    (a) An inmate or detainee may be considered for assignment with FPI 
unless the inmate is a pretrial inmate or is currently under an order of 
deportation, exclusion, or removal. However, an inmate or detainee who 
is currently under an order of deportation, exclusion, or removal may be 
considered for assignment with FPI if the Attorney General has 
determined that the inmate or detainee cannot be removed from the United 
States because the designated country of removal will not accept his/her 
return. Any request by an inmate for consideration must be made through 
the unit team. FPI does not discriminate on the bases of race, color, 
religion, ethnic origin, age, or disability.
    (b) The SOI ordinarily makes assignments based on the recommendation 
of the unit team.
    (1) New workers are ordinarily assigned at pay grade five. All 
first-time inmate workers shall enter at pay grade five and may be 
required to successfully complete a course in pre-industrial training or 
on-the-job training (as available) before promotion to pay grade four.
    (2) An inmate who has not successfully completed pre-industrial or 
on-the-job training remains at pay grade five for at least 30 days.
    (3) An inmate hired after having resigned voluntarily from FPI may 
be excused from pre-industrial training and may be hired at a pay grade 
based on previous training and experience.

[60 FR 15827, Mar. 27, 1995, as amended at 64 FR 32169, June 15, 1999]



      Subpart E--Inmate Worker Standards and Performance Appraisal



Sec. 345.40  General.

    This subpart authorizes the establishment of minimum work standards 
for inmate workers assigned to the Industries program at all field 
locations. The SOI may reproduce these standards and may also develop 
additional local guidelines to augment these standards and to adapt them 
to local needs and conditions. Local Industries shall place these 
standards and any additional local guidelines on display at appropriate 
locations within the industrial sites. Inmates shall be provided with a 
copy of these standards and local guidelines, and shall sign receipts 
acknowledging they have received and understand them before beginning 
work in the Industries program. In the case of a disabled inmate, 
alternate media or means of communicating this information and 
indicating the inmate's receipt may be provided, if necessary as a 
reasonable accommodation.
    (a) At a minimum, each industrial location is to have work standards 
for each of the following areas:
    (1) Safety--ensuring the promotion of workplace safety and the 
avoidance of activities that could result in injury to self or others.

[[Page 459]]

    (2) Quality assurance--ensuring that work is done as directed by the 
supervisor in an attentive manner so as to minimize the chance of error.
    (3) Personal conduct and hygiene--ensuring the promotion of harmony 
and sanitary conditions in the workplace through observation of good 
hygiene and full cooperation with other inmate workers, work 
supervisors, and training staff.
    (4) Punctuality and productivity--ensuring the productive and 
efficient use of time while the inmate is on work assignment or in 
training.
    (b) Compliance with work standards. Each inmate assigned to FPI 
shall comply with all work standards pertaining to his or her work 
assignment. Adherence to the standards should be considered in 
evaluating the inmate's work performance and documented in individual 
hiring, retention, and promotion/demotion situations.



Sec. 345.41  Performance appraisal for inmate workers.

    Work supervisors should complete a performance appraisal form for 
each inmate semi-annually, by March 31 and September 30, or upon 
termination or transfer from the industrial work assignment. Copies 
shall be sent to the unit team. Inmate workers should discuss their 
appraisals with their supervisors at a mutually agreeable time in order 
to improve their performance. Satisfactory and unsatisfactory 
performance ratings shall be based on the standards in Sec. 345.40(a).
    (a) The SOI is to ensure that evaluations are done and are submitted 
to unit teams in a timely manner.
    (b) The SOI or a designee may promote an inmate to a higher grade 
level if an opening exists when the inmate's skills, abilities, 
qualifications, and work performance are sufficiently developed to 
enable the inmate to carry out a more complex FPI factory assignment 
successfully, when the inmate has met the institution's time-in-grade 
(unless waived by the SOI), and when the inmate has abided by the inmate 
worker standards. Conversely, the SOI or SOI designee may demote an 
inmate worker for failing to abide by the inmate worker standards. Such 
demotions shall be fully documented.



Sec. 345.42  Inmate worker dismissal.

    The SOI may remove an inmate from Industries work status in 
cooperation with the unit team.
    (a) The SOI may remove an inmate from FPI work status according to 
the conditions outlined in the pay and benefits section of this policy 
and in cooperation with the unit team.
    (b) An inmate may be removed from FPI work status for failure to 
comply with any court-mandated financial responsibility. (See 28 CFR 
545.11(d)).
    (c) An inmate found to have committed a prohibited act (whether or 
not it is FPI related) resulting in segregation or disciplinary transfer 
is also to be dismissed from Industries based on an unsatisfactory 
performance rating for failure to be at work.
    (d) Any inmate or detainee who is a pretrial inmate or who is 
currently under an order of deportation, exclusion, or removal shall be 
removed from any FPI work assignment and reassigned to a non-FPI work 
assignment for which the inmate is eligible. However, an inmate or 
detainee who is currently under an order of deportation, exclusion, or 
removal may be retained in the FPI assignment if the Attorney General 
has determined that the inmate or detainee cannot be removed from the 
United States because the designated country of removal will not accept 
his/her return.

[60 FR 15827, Mar. 27, 1995, as amended at 64 FR 32170, June 15, 1999]



                   Subpart F--Inmate Pay and Benefits



Sec. 345.50  General.

    Title 18 U. S. Code section 4126 authorizes FPI to compensate 
inmates under rules and regulations promulgated by the Attorney General. 
It is the policy of FPI to provide compensation to FPI inmate workers 
through various conditions of pay and benefits, except as otherwise 
provided in these regulations.



Sec. 345.51  Inmate pay.

    (a) Grade levels. Inmate workers in FPI locations receive pay at 
five levels ranging from 5th grade pay (lowest) to 1st grade pay 
(highest).

[[Page 460]]

    (b) Eligibility. (1) An inmate shall accrue vacation time, longevity 
service credit, and shall receive holiday pay for the period of time the 
inmate is officially assigned to the Industries work detail. For 
limitations on claims, refer to Sec. 345.66.
    (2) Inmate workers may be eligible for premium pay as specified in 
Sec. 345.52. Eligibility for other pay and benefits are described 
separately in this subpart.
    (3) FPI pay and benefits are lost in cases of disciplinary transfer 
and segregation.
    (4) An inmate returned to the institution due to program failure at 
a Community Corrections Center or while on parole or escape is not 
entitled to credit for time spent in Industries prior to said program 
failure. This rule also applies to any other program failure which 
results in a break in confinement status.



Sec. 345.52  Premium pay.

    Payment of premium pay to selected inmates is authorized. The total 
number of qualifying inmates may not exceed 15% of first grade inmates 
at a location.
    (a) Eligibility. Inmates in first grade pay status may be considered 
for premium pay.
    (b) The selection process. Candidates for premium pay must be 
nominated by a foreman on the FPI staff, and recommended on the basis of 
specific posted criteria by a selection committee assigned by the SOI.
    (1) The SOI, as the chief selecting official, must sign approval for 
all premium pay inmate selections. This authority may not be delegated 
below the level of Acting SOI.
    (2) The selected candidate(s) are notified by the FPI Manager or by 
a posted list on the FPI bulletin board. A record of the selection and 
who was on the selection board is kept for documentation purposes. An 
inmate nominated to be a premium pay inmate may refuse the appointment 
without prejudice.
    (c) [Reserved]
    (d) Pay rate. Premium pay inmates receive a specified amount over 
and above all other pay and benefits to which they may be entitled 
(e.g., longevity pay, overtime, piecework rates, etc.). Premium pay is 
also paid for vacation, holiday, and administrative hours.
    (e) Duties of premium pay inmates. Premium pay is a means of 
recognizing the value of those traits supportive of morale and good 
institutional adjustment. It is not a form of bonus or incentive pay for 
highly productive inmates.
    (f) Transfer status of premium pay inmates. Premium pay status may 
not be transferred from institution to institution with the inmate 
worker. Premium pay status must be earned at each location.
    (g) Removals from premium pay status. Removal from premium pay 
status may occur for failure to demonstrate the premium pay selection 
traits or for failure to abide by the inmate worker standards set forth 
in this policy. All removals from premium pay status shall be documented 
on the inmate's evaluation form. The following conditions also may 
result in removal from premium pay status:
    (1) Any premium pay inmate found to have committed any level 100 or 
200 series offense by the DHO is automatically removed from premium pay 
status whether or not the offense was FPI-related.
    (2) Inmates absent from work for more than 30 consecutive calendar 
days may be removed from premium pay status by the SOI.



Sec. 345.53  Piecework rates.

    Piecework rates are incentives for workers to strive for higher pay 
and production benefiting both the worker and FPI. Piecework rates may 
be of two major types: individual piecework (in which an individual's 
pay goes up or down depending upon his/her own output) or Group Wage 
Fund (in which all members of a group strive for higher rates or 
production output as a unit, and all share in a pool of funds 
distributed among work group members equally).



Sec. 345.54  Overtime compensation.

    An inmate worker is entitled to overtime pay at a rate of two times 
the hourly or unit rate for hourly, individual, and group piecework rate 
workers, when the total hours worked (including administrative pay) 
exceed the

[[Page 461]]

FPI factory's regularly scheduled workday. Hours worked on days other 
than the scheduled work week (e.g., Saturday) shall be compensated at 
the overtime rate.



Sec. 345.55  Longevity pay.

    (a) Except as provided in paragraph (b) of this section, an inmate 
earns longevity pay raises after 18 months spent in FPI work status 
regardless of whether or not the work was continuous. The service may 
have occurred in one or more FPI factories or shops. An inmate qualifies 
for longevity pay raises as provided in the table below:

                       Length of Service With FPI

After 18 months of service and payable in the 19th month
After 30 months of service and payable in the 31st month
After 42 months of service and payable in the 43rd month
After 60 months of service and payable in the 61st month
After 84 months of service (& more) and payable in the 85th month


Longevity pay allowances shall be added after the wages for each actual 
hour in pay status have been properly computed.
    (b) Exceptions. (1) FPI work status during service of a previous 
sentence with a subsequent break in custody may not be considered in 
determining longevity pay.
    (2) An inmate in segregation or who is given a disciplinary transfer 
loses any longevity status previously achieved.
    (3) An inmate who voluntarily transfers to a non-FPI work assignment 
loses any longevity status previously achieved. An inmate who leaves FPI 
to enter education, vocational training, or drug abuse treatment 
programs, however, generally retains longevity and pay grade status upon 
return to FPI, unless the inmate withdraws from those programs without a 
good faith effort to complete them. The decision on whether there was a 
good faith effort is to be made by the SOI in concert with the staff 
member in charge of the program.



Sec. 345.56  Vacation pay.

    Inmate workers are granted FPI vacation pay by the SOI when their 
continued good work performance justifies such pay, based on such 
criteria as quality of work, attendance and punctuality, attentiveness, 
and adherence to industry operating regulations. The inmate must submit 
a written request for vacation time, ordinarily two weeks in advance of 
the requested vacation time. The work supervisor must recommend to the 
SOI the vacation time to be taken or paid. Eligibility for vacation pay 
must be verified by the Business Office prior to approval by the SOI. 
The SOI may declare an inmate ineligible for vacation credit because of 
an inmate's unsatisfactory work performance during the month in which 
such credit was to occur.
    (a) An inmate may take accrued vacation time for visits, 
participation in institution programs or for other good reasons at the 
discretion of the SOI. Industrial managers should make every reasonable 
attempt to schedule an inmate worker's vacations so as not to conflict 
with the workforce requirements of FPI factory production schedules and 
Inmate Systems Management requirements.
    (b) An inmate temporarily assigned to the Industrial detail, e.g., 
on construction details, also earns vacation credit which he or she must 
take or be paid for at the end of the temporary assignment.
    (c) An inmate must take and/or be paid for vacation credit within 
sixty days after each annual eligibility date of the inmate's most 
recent date of assignment to FPI. An inmate who elects not to take 
vacation time must indicate this in writing. That inmate shall receive 
pay for the annual vacation credit in a lump sum on the regular monthly 
payroll. This amount is ordinarily paid within sixty days after the 
annual eligibility date of the inmate's most recent date of assignment 
to FPI. An inmate whose employment is terminated by release, 
reassignment, transfer, or other reasons, and who has unused vacation 
credit shall be paid for this credit on the monthly payroll.



Sec. 345.57  Administrative pay.

    An inmate excused from a job assignment may receive administrative 
pay for such circumstances as a general recall for an institution, power 
outages,

[[Page 462]]

blood donations, or other situations at the discretion of the SOI. Such 
pay may not exceed an aggregate of three hours per month.



Sec. 345.58  Holiday pay.

    An inmate worker in FPI work status shall receive pay at the 
standard hourly rate, plus longevity where applicable, for all Federal 
holidays provided the inmate is in work status on the day before and the 
day after the holiday occurs. Full-time workers receive one full day's 
pay. Part-time workers receive one-half day's pay.



Sec. 345.59  Inmate performance pay.

    Inmate workers for FPI may also receive Inmate Performance Pay for 
participation in programs where this award is made. However, inmate 
workers may not receive both Industries Pay and Performance Pay for the 
same program activity. For example, an inmate assigned to a pre-
industrial class may not receive FPI pay as well as inmate performance 
pay for participation in the class.



Sec. 345.60  Training pay.

    Inmates directed by the SOI to take a particular type of training in 
connection with a FPI job are to receive FPI pay if the training time 
occurs during routine FPI factory hours of operation. This does not 
include ABE/GED or pre-industrial training.



Sec. 345.61  Inmate earnings statement.

    Each inmate worker in FPI shall be given a monthly earnings 
statement while actively working for FPI.



Sec. 345.62  Inmate accident compensation.

    An inmate worker shall be paid lost-time wages while hospitalized or 
confined to quarters due to work-related injuries (including 
occupational disease or illnesses directly caused by the worker's job 
assignments) as specified by the Inmate Accident Compensation Program 
(28 CFR part 301).



Sec. 345.63  Funds due deceased inmates.

    Funds due a deceased inmate for work performed for FPI are payable 
to a legal representative of the inmate's estate or in accordance with 
the law of descent and distribution of the state of domicile.



Sec. 345.64  Referral of releasable medical data to FPI staff.

    The SOI is responsible for ensuring that appropriate releasable 
information pertaining to an inmate's medical limitation (e.g., back 
injury) is made available to the FPI staff member who directly 
supervises the assignment.



Sec. 345.65  Inmate medical work limitation.

    In addition to any prior illnesses or injuries, medical limitations 
also include any illness or injury sustained by an inmate which 
necessitates removing the ill worker from an FPI work assignment. If an 
inmate worker is injured more than once in a comparatively short time, 
and the circumstances of the injury suggest an awkwardness or ineptitude 
which in turn indicates that further danger exists, the inmate may be 
removed to another FPI detail or to a non-FPI detail.



Sec. 345.66  Claims limitation.

    Claims relating to pay and/or benefits must occur within one 
calendar year of the period of time for which the claim is made. Inmate 
claims submitted more than one year after the time in question require 
the approval of the Assistant Director before an inmate may receive such 
pay and/or benefit.



Sec. 345.67  Retention of benefits.

    (a) Job retention. Ordinarily, when an inmate is absent from the job 
for a significant period of time, the SOI will fill that position with 
another inmate, and the first inmate will have no entitlement to 
continued FPI employment.
    (1) For up to the first 30 days when an inmate is in medical idle 
status, that inmate will retain FPI pay grade status, with suspension of 
actual pay, and will be able to return to FPI when medically able, 
provided the absence was not because of a FPI work-related injury 
resulting from the inmate's violation of safety standards. If the 
medical idle lasts longer than 30 days, was not caused by a violation of 
safety standards, and the unit team approves the inmate's return to FPI, 
the SOI

[[Page 463]]

shall place that inmate within the top ten percent of the FPI waiting 
list.
    (2) Likewise, for up to the first 30 days when an inmate is in 
Administrative Detention, that inmate may retain FPI pay grade status, 
with actual pay suspended, and will be able to return to FPI, provided 
the inmate is not found to have committed a prohibited act. If 
Administrative Detention lasts longer than 30 days, and the inmate is 
not found to have committed a prohibited act, and the unit team approves 
the inmate's return to FPI, the SOI shall place that inmate within the 
top ten percent of the FPI waiting list.
    (3) An inmate in Administrative Detention, and found to have 
committed a prohibited act, may return to FPI work status at the 
discretion of the SOI.
    (4) If an inmate is injured and absent from the job because of a 
violation of FPI safety standards, the SOI may reassign the inmate 
within FPI or recommend that the unit team reassign the inmate to a non-
FPI work assignment.
    (5) If an inmate is transferred from one institution to another for 
administrative (not disciplinary) reasons, and the unit team approves 
the inmate's return to FPI, the SOI shall place that inmate within the 
top ten percent of the FPI waiting list.
    (b) Longevity and vacation credit. Ordinarily, when an inmate's FPI 
employment is interrupted, the inmate loses all accumulated longevity 
and vacation credit with the following exceptions:
    (1) The inmate retains longevity and vacation credit when placed in 
medical idle status, provided the medical idle is not because of a FPI 
work-related injury resulting from the inmate's violation of safety 
standards. If the medical idle results from a FPI work-related injury 
where the inmate was not at fault, the inmate also continues to earn 
longevity and vacation credit.
    (2) Likewise, the inmate retains, and continues earning for up to 30 
days, longevity and vacation credit if placed in Administrative 
Detention, provided the inmate is not found to have committed a 
prohibited act.
    (3) The inmate retains, but does not continue earning, longevity and 
vacation credit when transferring from one institution to another for 
administrative (not disciplinary) reasons, when absent from the 
institution on writ, or when placed in administrative detention and 
found to have committed a prohibited act.
    (c) Pay grade retention. Ordinarily, when an inmate's FPI employment 
is interrupted, that inmate is not entitled to retain his or her pay 
grade, with the following exceptions.
    (1) An inmate retains pay grade status, with actual pay suspended, 
for up to 30 days in Administrative Detention. However, the inmate is 
not reimbursed for the time spent in detention.
    (2) Likewise, an inmate retains pay grade status for up to 30 days 
while absent from the institution on writ, with actual pay suspended. 
The SOI may approve pay grade retention when an inmate is on writ for 
longer than 30 days on a case-by-case basis.
    (3) If an inmate is absent because of a FPI work-related injury 
where the inmate was not at fault, the inmate retains his or her pay 
grade, with actual pay suspended.



                        Subpart G--Awards Program



Sec. 345.70  General.

    FPI provides incentive awards of various types to inmate workers for 
special achievements in their work, scholarship, suggestions, for 
inventions which improve industry processes or safety or which conserve 
energy or materials consumed in FPI operations, and for outstanding 
levels of self-development.



Sec. 345.71  Official commendations.

    An inmate worker may receive an official written commendation for 
any suggestion or invention adopted by FPI, or for any special 
achievement, as determined by the SOI, related to the inmate's 
industrial work assignment. A copy of the commendation is to be placed 
in the inmate's central file.



Sec. 345.72  Cash bonus or cash award.

    An inmate worker may receive a cash bonus or cash award for any 
suggestion or invention which is adopted by FPI and produces a net 
savings to FPI of at least $250.00. Cash awards shall be one

[[Page 464]]

percent of the net estimated savings during the first year, with the 
minimum award being $25.00, and the maximum award being $1,000.00.



Sec. 345.73  Procedures for granting awards for suggestions or inventions.

    Inmate suggestions for improvements in operations or safety, or for 
conservation of energy or material, must be submitted in writing.
    (a) The inmate's immediate supervisor shall review the suggestion 
and forward it with comments and award recommendation to the SOI.
    (b) The SOI shall ensure that all inmate suggestions and/or 
inventions formally submitted are considered for incentive awards by a 
committee comprised of Industries personnel designated by the SOI.
    (1) The committee is authorized to award a cash award of up to 
$100.00 or an equivalent gift not to exceed $100.00 in value to an 
inmate whose suggestion has been adopted. A recommendation for an award 
in excess of $100.00 shall be forwarded to the Assistant Director for a 
final decision.
    (2) The committee shall forward all recommendations for awards for 
inventions through the SOI to the Warden. The Warden may choose to add 
his or her comments before forwarding to the Assistant Director for a 
final decision.
    (3) Incentive awards are the exclusive methods for recognizing 
inmates for suggestions or inventions.



Sec. 345.74  Awards for special achievements for inmate workers.

    While recognition of inmate worker special achievements may 
originate from any FPI staff member, the achievement ordinarily will be 
submitted in writing by the inmate's immediate supervisor.
    (a) The SOI shall appoint a local institution committee to consider 
inmates for special achievement awards.
    (b) The committee shall forward its recommendations to the SOI, who 
is authorized to approve individual awards (cash or gifts) not to exceed 
$100 in value. A recommendation for an award in excess of $100 (cash or 
gifts) shall be forwarded, with the Superintendent's recommendation and 
the justification for it, through the Warden to the Assistant Director. 
The Warden may submit comments on the recommendation.



         Subpart H--FPI Inmate Training and Scholarship Programs



Sec. 345.80  General.

    As earnings permit, FPI provides appropriate training for inmates 
which is directly related to the inmate worker's job assignment. 
Additionally, FPI administers a scholarship program to provide inmates 
with an opportunity to begin, or to continue with business and industry 
courses or vocational training.
    (a) An applicant for FPI-funded training programs should be 
evaluated to determine sufficient interest and preparation to 
successfully complete the course content. The evaluation may be done by 
the Education Department, unit team, or other qualified personnel.
    (b) An inmate selected to participate in FPI-funded training 
programs ordinarily must have enough sentence time remaining to serve to 
complete the training.



Sec. 345.81  Pre-industrial training.

    FPI encourages the development and use of pre-industrial training 
programs. Such training ordinarily provides benefits to the inmate and 
to the FPI factory. Pre-industrial training also provides an additional 
management tool for replacing inmate idleness with constructive 
activity. Accordingly, each FPI factory location may provide a pre-
industrial training program.
    (a) Pre-industrial program trainees shall ordinarily begin at the 
entry level pay grade (grade 5). Positions for pre-industrial training 
programs are filled in the same manner as other grade five positions.
    (b) Pre-industrial training is not a prerequisite for work placement 
if the inmate already possesses the needed skill.
    (c) If pre-industrial training is available and the worker has not 
completed both the skill training and orientation phases of pre-
industrial training, the

[[Page 465]]

inmate should be put into the first available training class.
    (d) When pre-industrial training is not available, new FPI assignees 
will receive on-the-job training in pre-industrial pay status for a 
period of at least 30 days before being promoted into available fourth 
grade jobs.



Sec. 345.82  Apprenticeship training.

    FPI provides inmate workers with an opportunity to participate in 
apprenticeship training programs to the extent practicable. Such 
programs help prepare workers for post-release employment in a variety 
of trades. Apprentices are given related trades classroom instruction in 
addition to the skill training during work hours, where necessary.



Sec. 345.83  Job safety training.

    FPI provides inmates with regular job safety training which is 
developed and scheduled in coordination with the institution Safety 
Manager. Participation in the training shall be documented in a safety 
training record signed by the inmate.



Sec. 345.84  The FPI scholarship fund.

    FPI shall award post-secondary school scholarships to selected, 
qualified inmate workers. These scholarships provide an inmate with the 
opportunity to begin or continue with business and industry courses or 
vocational training as approved and deemed appropriate by the Supervisor 
of Education.
    (a) Eligibility requirements. The SOI and the Supervisor of 
Education at each institution shall develop application procedures to 
include, at a minimum, the following criteria:
    (1) The inmate shall be a full-time FPI worker.
    (2) The inmate has a favorable recommendation for participation from 
his or her work supervisor.
    (3) The inmate meets all relevant institution requirements for 
participation (e.g. disciplinary record, custody level).
    (4) The inmate is accepted by the institution of higher learning 
offering the course or program which is requested.
    (5) The inmate must maintain a verifiable average of ``C'' or better 
to continue program eligibility.
    (6) Before beginning the course of study, the inmate must sign an 
agreement to provide the SOI with an unaltered, original copy of his or 
her grades.
    (b) Scholarship selection procedures. FPI scholarship awards shall 
be made by a three member Selection Committee comprised of the SOI, the 
Supervisor of Education, and one other person designated by the SOI.
    (c) Scholarship program operation. (1) Ordinarily, one scholarship 
may be awarded per school period for every fifty workers assigned. At 
least one scholarship may be awarded at each institution location, 
regardless of the number of inmates assigned.
    (2) Individual scholarships ordinarily should not exceed the cost of 
tuition and books for one course. Where several courses may be taken for 
the same cost as one, the inmate worker may be allowed to take more than 
one course.
    (3) Scholarship monies are to be paid only to the institution 
providing instruction, or to the Education Department for transfer of 
funds to the college, university, or technical institution providing 
instruction.
    (4) An inmate may not receive more than one scholarship per school 
period.
    (5) An inmate must maintain at least a ``C'' average to be continued 
as eligible for further assistance. An inmate earning less than ``C'' 
must wait one school period of eligibility before reapplying for further 
assistance. Where a course grade is based on a ``pass/fail'' system, the 
course must be ``passed'' to be eligible for further assistance.
    (6) An inmate awarded a correspondence course must successfully 
complete the course during a school year (e.g., 2 semesters, 3 
quarters).
    (7) An inmate receiving scholarship aid must have approval from the 
SOI and the Supervisor of Education before withdrawing from classes for 
good reason. An inmate withdrawing or ``dropping'' courses without 
permission shall wait one school year before applying for further 
scholarship assistance. An inmate may withdraw from courses without 
penalty for medical or non-disciplinary administrative reasons such

[[Page 466]]

as transfer, writ, release, etc., without first securing permission, 
although withdrawals for medical reasons must be certified in writing by 
the Hospital Administrator.

[[Page 467]]



           CHAPTER V--BUREAU OF PRISONS, DEPARTMENT OF JUSTICE




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

           SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
Part                                                                Page
500             General definitions.........................         469
501             Scope of rules..............................         469
503             Bureau of Prisons Central Office, regional 
                    offices, institutions, and staff 
                    training centers........................         472
505             Cost of incarceration fee...................         474
511             General management policy...................         475
512             Research....................................         478
513             Access to records...........................         482
      SUBCHAPTER B--INMATE ADMISSION, CLASSIFICATION, AND TRANSFER
522             Admission to institution....................         489
523             Computation of sentence.....................         490
524             Classification of inmates...................         496
527             Transfers...................................         504
                 SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
540             Contact with persons in the community.......         509
541             Inmate discipline and special housing units.         527
542             Administrative remedy.......................         560
543             Legal matters...............................         564
544             Education...................................         569
545             Work and compensation.......................         577
547             Food service................................         583
548             Religious programs..........................         583
549             Medical services............................         586
550             Drug programs...............................         593
551             Miscellaneous...............................         600
552             Custody.....................................         610
553             Inmate property.............................         618

[[Page 468]]

              SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE
570             Community programs..........................         623
571             Release from custody........................         627
572             Parole......................................         635

[[Page 469]]



           SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION





PART 500--GENERAL DEFINITIONS--Table of Contents




    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.



Sec. 500.1  Definitions.

    As used in this chapter,
    (a) The Warden means the chief executive officer of a U.S. 
Penitentiary, Federal Correctional Institution, Medical Center for 
Federal Prisoners, Federal Prison Camp, Federal Detention Center, 
Metropolitan Correctional Center, or any federal penal or correctional 
institution or facility. Warden also includes any staff member with 
authority explicitly delegated by any chief executive officer.
    (b) Staff means any employee of the Bureau of Prisons or Federal 
Prison Industries, Inc.
    (c) Inmate means all persons in the custody of the Federal Bureau of 
Prisons or Bureau contract facilities, including persons charged with or 
convicted of offenses against the United States; D.C. Code felony 
offenders; and persons held as witnesses, detainees, or otherwise.
    (d) Institution means a U.S. Penitentiary, a Federal Correctional 
Institution, a Federal Prison Camp, a Federal Detention Center, a 
Metropolitan Correctional Center, a Metropolitan Detention Center, a 
U.S. Medical Center for Federal Prisoners, a Federal Medical Center, or 
a Federal Transportation Center.
    (e) Shall means an obligation is imposed.
    (f) May means a discretionary right, privilege, or power is 
conferred.
    (g) May not means a prohibition is imposed.
    (h) Contraband is material prohibited by law, or by regulation, or 
material which can reasonably be expected to cause physical injury or 
adversely affect the security, safety, or good order of the institution.
    (i) Qualified health personnel includes physicians, dentists, and 
other professional and technical workers who engage in activities within 
their respective levels of health care training or experience which 
support, complement, or supplement the administration of health care.

[44 FR 38244, June 29, 1979, as amended at 48 FR 48969, Oct. 21, 1983; 
56 FR 31530, July 10, 1991; 63 FR 55775, Oct. 16, 1998; 66 FR 55065, 
Oct. 31, 2001]



PART 501--SCOPE OF RULES--Table of Contents




501.1  Bureau of Prisons emergencies.
501.2  National security cases.
501.3  Prevention of acts of violence and terrorism.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 4161-4166 (Repealed as to offenses committed on or 
after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to 
offenses committed after that date), 5039; 28 U.S.C. 509, 510.



Sec. 501.1  Bureau of Prisons emergencies.

    (a) Suspension of rules during an emergency. The Director of the 
Bureau of Prisons (Bureau) may suspend operation of the rules in this 
chapter as necessary to handle an institutional emergency or an 
emergency affecting the Bureau. When there is an institutional emergency 
which the Director or Warden considers a threat to human life or safety, 
the Director or Warden may suspend the operation of the rules in this 
chapter as necessary to handle the emergency.
    (b) Responsibilities of the Warden-- (1) Notifying the Director. If 
the Warden suspends operation of the rules, the Warden must, within 
eight hours of the suspension, notify the Director by providing written 
documentation which:
    (i) Describes the institutional emergency that threatens human life 
or safety; and
    (ii) Sets forth reasons why suspension of the rules is necessary to 
handle the institutional emergency.

[[Page 470]]

    (2) Submitting certification to Director of continuing emergency. 30 
days after the Warden suspends operation of the rules, and every 30 days 
thereafter, the Warden must submit to the Director written certification 
that an institutional emergency threatening human life or safety and 
warranting suspension of the rules continues to exist. If the Warden 
does not submit this certification to the Director, or if the Director 
so orders at any time, the suspension of the rules will cease.

[68 FR 18545, Apr. 16, 2003]



Sec. 501.2  National security cases.

    (a) Upon direction of the Attorney General, the Director, Bureau of 
Prisons, may authorize the Warden to implement special administrative 
measures that are reasonably necessary to prevent disclosure of 
classified information upon written certification to the Attorney 
General by the head of a member agency of the United States intelligence 
community that the unauthorized disclosure of such information would 
pose a threat to the national security and that there is a danger that 
the inmate will disclose such information. These special administrative 
measures ordinarily may include housing the inmate in administrative 
detention and/or limiting certain privileges, including, but not limited 
to, correspondence, visiting, interviews with representatives of the 
news media, and use of the telephone, as is reasonably necessary to 
prevent the disclosure of classified information. The authority of the 
Director under this paragraph may not be delegated below the level of 
Acting Director.
    (b) Designated staff shall provide to the affected inmate, as soon 
as practicable, written notification of the restrictions imposed and the 
basis for these restrictions. The notice's statement as to the basis may 
be limited in the interest of prison security or safety or national 
security. The inmate shall sign for and receive a copy of the 
notification.
    (c) Initial placement of an inmate in administrative detention and/
or any limitation of the inmate's privileges in accordance with 
paragraph (a) of this section may be imposed for a period of time as 
determined by the Director, Bureau of Prisons, up to one year. Special 
restrictions imposed in accordance with paragraph (a) of this section 
may be extended thereafter by the Director, Bureau of Prisons, in 
increments not to exceed one year, but only if the Attorney General 
receives from the head of a member agency of the United States 
intelligence community an additional written certification that, based 
on the information available to the agency, there is a danger that the 
inmate will disclose classified information and that the unauthorized 
disclosure of such information would pose a threat to the national 
security. The authority of the Director under this paragraph may not be 
delegated below the level of Acting Director.
    (d) The affected inmate may seek review of any special restrictions 
imposed in accordance with paragraph (a) of this section through the 
Administrative Remedy Program, 28 CFR part 542.
    (e) Other appropriate officials of the Department of Justice having 
custody of persons for whom special administrative measures are required 
may exercise the same authorities under this section as the Director of 
the Bureau of Prisons and the Warden.

[62 FR 33732, June 20, 1997, as amended at 66 FR 55065, Oct. 31, 2001]



Sec. 501.3  Prevention of acts of violence and terrorism.

    (a) Upon direction of the Attorney General, the Director, Bureau of 
Prisons, may authorize the Warden to implement special administrative 
measures that are reasonably necessary to protect persons against the 
risk of death or serious bodily injury. These procedures may be 
implemented upon written notification to the Director, Bureau of 
Prisons, by the Attorney General or, at the Attorney General's 
direction, by the head of a federal law enforcement agency, or the head 
of a member agency of the United States intelligence community, that 
there is a substantial risk that a prisoner's communications or contacts 
with persons could result in death or serious bodily injury to persons, 
or substantial damage to property that would entail the risk of death or 
serious bodily injury to persons. These special administrative

[[Page 471]]

measures ordinarily may include housing the inmate in administrative 
detention and/or limiting certain privileges, including, but not limited 
to, correspondence, visiting, interviews with representatives of the 
news media, and use of the telephone, as is reasonably necessary to 
protect persons against the risk of acts of violence or terrorism. The 
authority of the Director under this paragraph may not be delegated 
below the level of Acting Director.
    (b) Designated staff shall provide to the affected inmate, as soon 
as practicable, written notification of the restrictions imposed and the 
basis for these restrictions. The notice's statement as to the basis may 
be limited in the interest of prison security or safety or to protect 
against acts of violence or terrorism. The inmate shall sign for and 
receive a copy of the notification.
    (c) Initial placement of an inmate in administrative detention and/
or any limitation of the inmate's privileges in accordance with 
paragraph (a) of this section may be imposed for up to 120 days or, with 
the approval of the Attorney General, a longer period of time not to 
exceed one year. Special restrictions imposed in accordance with 
paragraph (a) of this section may be extended thereafter by the 
Director, Bureau of Prisons, in increments not to exceed one year, upon 
receipt by the Director of an additional written notification from the 
Attorney General, or, at the Attorney General's direction, from the head 
of a federal law enforcement agency or the head of a member agency of 
the United States intelligence community, that there continues to be a 
substantial risk that the inmate's communications or contacts with other 
persons could result in death or serious bodily injury to persons, or 
substantial damage to property that would entail the risk of death or 
serious bodily injury to persons. The authority of the Director under 
this paragraph may not be delegated below the level of Acting Director.
    (d) In any case where the Attorney General specifically so orders, 
based on information from the head of a federal law enforcement or 
intelligence agency that reasonable suspicion exists to believe that a 
particular inmate may use communications with attorneys or their agents 
to further or facilitate acts of terrorism, the Director, Bureau of 
Prisons, shall, in addition to the special administrative measures 
imposed under paragraph (a) of this section, provide appropriate 
procedures for the monitoring or review of communications between that 
inmate and attorneys or attorneys' agents who are traditionally covered 
by the attorney-client privilege, for the purpose of deterring future 
acts that could result in death or serious bodily injury to persons, or 
substantial damage to property that would entail the risk of death or 
serious bodily injury to persons.
    (1) The certification by the Attorney General under this paragraph 
(d) shall be in addition to any findings or determinations relating to 
the need for the imposition of other special administrative measures as 
provided in paragraph (a) of this section, but may be incorporated into 
the same document.
    (2) Except in the case of prior court authorization, the Director, 
Bureau of Prisons, shall provide written notice to the inmate and to the 
attorneys involved, prior to the initiation of any monitoring or review 
under this paragraph (d). The notice shall explain:
    (i) That, notwithstanding the provisions of part 540 of this chapter 
or other rules, all communications between the inmate and attorneys may 
be monitored, to the extent determined to be reasonably necessary for 
the purpose of deterring future acts of violence or terrorism;
    (ii) That communications between the inmate and attorneys or their 
agents are not protected by the attorney-client privilege if they would 
facilitate criminal acts or a conspiracy to commit criminal acts, or if 
those communications are not related to the seeking or providing of 
legal advice.
    (3) The Director, Bureau of Prisons, with the approval of the 
Assistant Attorney General for the Criminal Division, shall employ 
appropriate procedures to ensure that all attorney-client communications 
are reviewed for privilege claims and that any properly privileged 
materials (including, but not limited to, recordings of privileged 
communications) are not retained during the course of the monitoring. To

[[Page 472]]

protect the attorney-client privilege and to ensure that the 
investigation is not compromised by exposure to privileged material 
relating to the investigation or to defense strategy, a privilege team 
shall be designated, consisting of individuals not involved in the 
underlying investigation. The monitoring shall be conducted pursuant to 
procedures designed to minimize the intrusion into privileged material 
or conversations. Except in cases where the person in charge of the 
privilege team determines that acts of violence or terrorism are 
imminent, the privilege team shall not disclose any information unless 
and until such disclosure has been approved by a federal judge.
    (e) The affected inmate may seek review of any special restrictions 
imposed in accordance with paragraph (a) of this section through the 
Administrative Remedy Program, 28 CFR part 542.
    (f) Other appropriate officials of the Department of Justice having 
custody of persons for whom special administrative measures are required 
may exercise the same authorities under this section as the Director of 
the Bureau of Prisons and the Warden.

[62 FR 33732, June 20, 1997, as amended at 66 FR 55065, Oct. 31, 2001]



PART 503--BUREAU OF PRISONS CENTRAL OFFICE, REGIONAL OFFICES, INSTITUTIONS, AND STAFF TRAINING CENTERS--Table of Contents




Sec.
503.1  Bureau of Prisons Central Office.
503.2  Bureau of Prisons Northeast Regional Office.
503.3  Bureau of Prisons Mid-Atlantic Regional Office.
503.4  Bureau of Prisons Southeast Regional Office.
503.5  Bureau of Prisons North Central Regional Office.
503.6  Bureau of Prisons South Central Regional Office.
503.7  Bureau of Prisons Western Regional Office.
503.8  Bureau of Prisons Staff Training Centers.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4003, 
4042, 4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

    Source: 63 FR 55775, Oct. 16, 1998, unless otherwise noted.



Sec. 503.1  Bureau of Prisons Central Office.

    The Bureau of Prisons Central Office is located at 320 First Street 
NW., Washington, DC 20534.



Sec. 503.2  Bureau of Prisons Northeast Regional Office.

    The Bureau of Prisons Northeast Regional Office is located at U.S. 
Customs House, 7th Floor, 2nd and Chestnut Street, Philadelphia, 
Pennsylvania 19106. The following institutions are located within this 
region.
    (a) United States Penitentiary (USP) Lewisburg, Pennsylvania 17837.
    (b) Federal Correctional Institutions (FCI):
    (1) FCI Danbury, Connecticut 06811-3099;
    (2) FCI Fairton, New Jersey 08320;
    (3) FCI Fort Dix, New Jersey 08640;
    (4) FCI Loretto, Pennsylvania 15940;
    (5) FCI McKean, Pennsylvania 16701;
    (6) FCI Otisville, New York 10963;
    (7) FCI Ray Brook, New York 12977;
    (8) FCI Schuylkill, Pennsylvania 17954.
    (c) Federal Correctional Complex (FCC):
    (1) USP Allenwood (High), Pennsylvania 17887;
    (2) FCI Allenwood (Medium), Pennsylvania 17887;
    (3) FCI Allenwood (Low), Pennsylvania 17887;
    (4) FPC Allenwood, Pennsylvania 17752.
    (d) Metropolitan Detention Center (MDC) Brooklyn, New York 11232.
    (e) Metropolitan Correctional Center (MCC) New York, New York 10007.
    (f) Federal Medical Center (FMC) Devens, Massachusetts 10432.



Sec. 503.3  Bureau of Prisons Mid-Atlantic Regional Office.

    The Bureau of Prisons Mid-Atlantic Regional Office is located at 
Junction Business Park, 10010 Junction Drive, Suite 100N, Annapolis 
Junction, Maryland 20701. The following institutions are located within 
this region.
    (a) United States Penitentiary (USP) Terre Haute, Indiana 47808.
    (b) Federal Correctional Institutions (FCI):

[[Page 473]]

    (1) FCI Ashland, Kentucky 41101;
    (2) FCI Beckley, West Virginia 25813;
    (3) FCI Butner (Medium), North Carolina 27509;
    (4) FCI Butner (Low), North Carolina 27509-1000;
    (5) FCI Cumberland, Maryland 21502;
    (6) FCI Elkton, Ohio 44415;
    (7) FCI Manchester, Kentucky 40962;
    (8) FCI Memphis, Tennessee 38134-7690;
    (9) FCI Milan, Michigan 48160;
    (10) FCI Morgantown, West Virgina 26505;
    (11) FCI Petersburg, Virginia 23804-1000.
    (c) Federal Prison Camps (FPC):
    (1) FPC Alderson, West Virginia 24910;
    (2) FPC Seymour Johnson, North Carolina 27531-5000.
    (d) Federal Medical Center (FMC) Lexington, Kentucky 41101.



Sec. 503.4  Bureau of Prisons Southeast Regional Office.

    The Bureau of Prisons Southeast Regional Office is located at 3800 
North Camp Creek Parkway, SW., Building 2000, Atlanta, GA 30331-5099. 
The following institutions are located within this region.
    (a) United States Penitentiary (USP) Atlanta, Georgia 30315-0182.
    (b) Federal Correctional Institutions (FCI):
    (1) FCI Edgefield, South Carolina 29824;
    (2) FCI Estill, South Carolina 29918;
    (3) FCI Jesup, Georgia 31599;
    (4) FCI Marianna, Florida 32446;
    (5) FCI Miami, Florida 33177;
    (6) FCI Talladega, Alabama 35160;
    (7) FCI Tallahassee, Florida 32301;
    (8) FCI Yazoo City, Mississippi 39194.
    (c) Federal Correctional Complex (FCC):
    (1) FCI Coleman (Medium), Florida 33521-8997;
    (2) FCI Coleman (Low), Florida 33521-8999;
    (3) FCC Coleman (Administrative), Florida 33521-1029.
    (d) Federal Prison Camps (FPC):
    (1) FPC Eglin, Florida 32542;
    (2) FPC Montgomery, Alabama 36112;
    (3) FPC Pensacola, Florida 32509-0001.
    (e) Federal Detention Center (FDC) Miami, Florida 33177.
    (f) Metropolitan Detention Center (MDC) Guaynabo, Puerto Rico 00922-
2146.



Sec. 503.5  Bureau of Prisons North Central Regional Office.

    The Bureau of Prisons North Central Regional Office is located at 
Gateway Complex, Inc., Tower II, 8th Floor, 4th and State Avenue, Kansas 
City, Kansas 6610-2492. The following institutions are located within 
this region.
    (a) United States Penitentiaries (USP):
    (1) USP Leavenworth, Kansas 66048;
    (2) USP Marion, Illinois 62959.
    (b) Federal Correctional Institutions (FCI):
    (1) FCI Englewood, Colorado 80123;
    (2) FCI Greenville, Illinois 62246;
    (3) FCI Oxford, Wisconsin 53952-0500;
    (4) FCI Pekin, Illinois 61555-7000;
    (5) FCI Sandstone, Minnesota 55072;
    (6) FCI Waseca, Minnesota 56093.
    (c) Federal Correctional Complex (FCC):
    (1) USP (ADMAX) Florence, Colorado 81226;
    (2) USP Florence (High), Colorado 81226;
    (3) FCI Florence (Medium), Colorado 81226.
    (d) Federal Prison Camps (FPC):
    (1) FPC Duluth, Minnesota 55814;
    (2) FPC Yankton, South Dakota 57078.
    (e) U.S. Medical Center for Federal Prisoners (USMCFP) Springfield, 
Missouri 65808.
    (f) Federal Medical Center (FMC) Rochester, Minnesota 55903-4600.
    (g) Metropolitan Correctional Center (MCC) Chicago, Illinois 60605.



Sec. 503.6  Bureau of Prisons South Central Regional Office.

    The Bureau of Prisons South Central Regional Office is located at 
4211 Cedar Springs Road, Suite 300, Dallas, Texas 75219. The following 
institutions are located within this region.
    (a) Federal Correctional Institutions (FCI):
    (1) FCI Bastrop, Texas 78602;
    (2) FCI Big Spring, Texas 79720-7799;
    (3) FCI El Reno, Oklahoma 73036-1000;
    (4) FCI Forrest City, Arkansas 72336;
    (5) FCI La Tuna, Texas 88021;
    (6) FCI Oakdale, Louisiana 71463;

[[Page 474]]

    (7) FCI Seagoville, Texas 75159;
    (8) FCI Texarkana, Texas 75505;
    (9) FCI Three Rivers, Texas 78071.
    (b) Federal Correctional Complex (FCC):
    (1) USP Beaumont (High), Texas 77720-6035;
    (2) FCI Beaumont (Low), Texas 77720-6025;
    (3) FCC Beaumont (Administrative), Texas 77720-6015.
    (c) Federal Prison Camps (FPC):
    (1) FPC Bryan, Texas 77803;
    (2) FPC El Paso, Texas 79906-0300.
    (d) Federal Medical Center (FMC):
    (1) FMC Carswell, Texas 76127;
    (2) FMC Fort Worth, Texas 76119-5996.
    (e) Federal Detention Center (FDC) Oakdale, Louisiana 71463.
    (f) Federal Transportation Center (FTC) Oklahoma City, Oklahoma 
73189-8802.



Sec. 503.7  Bureau of Prisons Western Regional Office.

    The Bureau of Prisons Western Regional Office is located at 7950 
Dublin Boulevard, 3rd Floor, Dublin, California 94568. The following 
institutions are located within this region.
    (a) United States Penitentiary (USP) Lompoc, California 93436.
    (b) Federal Correctional Institutions (FCI):
    (1) FCI Dublin, California 94568;
    (2) FCI Lompoc, California 93436;
    (3) FCI Phoenix, Arizona 85027;
    (4) FCI Safford, Arizona 85548;
    (5) FCI Sheridan, Oregon 97378-9601;
    (6) FCI Terminal Island, California 90731;
    (7) FCI Tucson, Arizona 85706.
    (c) Federal Prison Camps (FPC):
    (1) FPC Boron, California 93596;
    (2) FPC Nellis, Nevada 89036-5000.
    (d) Metropolitan Correctional Center (MCC) San Diego, California 
92101-6078.
    (e) Metropolitan Detention Center (MDC) Los Angeles, California 
90012-1500.
    (f) Federal Detention Center (FDC) SeaTac, Washington 98168.



Sec. 503.8  Bureau of Prisons Staff Training Centers.

    The Bureau of Prisons Staff Training Centers are located at:
    (a) Federal Law Enforcement Training Center, Building 21, Glynco, 
Georgia 31524;
    (b) Management and Speciality Training Center, 791 Chambers Road, 
Aurora, Colorado 80011;
    (c) National Legal Training Center, 791 Chambers Road, Aurora, 
Colorado 80011;
    (d) Food Service and Trust Fund Training Center, c/o FCI, Fort 
Worth, Texas 76119.



PART 505--COST OF INCARCERATION FEE--Table of Contents




Sec.
505.1  Purpose and scope.
505.2  Annual determination of average cost of incarceration.
505.3  Inmates exempted from fee assessment.
505.4  Calculation of assessment by unit staff.
505.5  Waiver of fee by Warden.
505.6  Procedures for payment.
505.7  Procedures for final disposition.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses 
committed after that date), 5039; 31 U.S.C. 3717; Pub. L. 102-395, 106 
Stat. 1842 (18 U.S.C. 4001 note); 28 CFR 0.95-0.99.

    Source: 64 FR 43881, Aug. 11, 1999, unless otherwise noted.



Sec. 505.1  Purpose and scope.

    This part establishes procedures for the assessment and collection 
of a fee to cover the cost of incarceration. The Director of the Bureau 
of Prisons has been delegated the authority of the Attorney General (see 
28 CFR 0.96c) to assess and collect a fee imposed by the Bureau in the 
event the court neither imposes nor waives a fine pursuant to the 
Sentencing Guidelines 5E1.2(d). For purposes of this part, revocation of 
parole or supervised release is to be treated as a separate period of 
incarceration for which a fee may be imposed.



Sec. 505.2  Annual determination of average cost of incarceration.

    Pursuant to 28 CFR 0.96c, the Bureau of Prisons staff is responsible 
for calculating the annual average cost of incarceration. This 
calculation is reviewed annually and the revised figure is published as 
a notice in the Federal Register.

[[Page 475]]



Sec. 505.3  Inmates exempted from fee assessment.

    Inmates who began service of sentence before January 1, 1995, or who 
have had a fine either imposed or expressly waived by the United States 
District Court, pursuant to Section 5E1.2 (e) of the United States 
Sentencing Guidelines, or any successor provisions, are exempt from fee 
assessment otherwise required by this part.



Sec. 505.4  Calculation of assessment by unit staff.

    Bureau of Prisons Unit Team staff are responsible for computing the 
amount of the fee to be paid by each inmate who has not been exempted 
from fee assessment. The inmate will only be assessed an amount once for 
the cost of incarceration for each separate period of incarceration.
    (a) Unit Team staff are to rely exclusively on the information 
contained in the Presentence Investigation Report and findings and 
orders of the sentencing court in order to determine the extent of an 
inmate's assets, liabilities and dependents.
    (b) The fee is assessed in accordance with the following formula: If 
an inmate's assets are equal to or less than the poverty level, as 
established by the United States Department of Health and Human Services 
and published annually in the Federal Register, no fee is to be imposed. 
If an inmate's assets are above the poverty level, Unit Team staff are 
to impose a fee equal to the inmate's assets above the poverty level up 
to the average cost to the Bureau of Prisons of confining an inmate for 
one year.
    (c) If the amount of time that the inmate is in custody is less than 
334 days (including pretrial custody time), the maximum fee to be 
imposed is to be computed by prorating the fee on a monthly basis.



Sec. 505.5  Waiver of fee by Warden.

    The Warden may reduce or waive the fee if the inmate establishes 
that:
    (a) He or she is not able and, even with the use of a reasonable 
installment schedule, is not likely to become able to pay all or part of 
the fee, or
    (b) Imposition of a fee would unduly burden the inmate's dependents.



Sec. 505.6  Procedures for payment.

    Fees imposed pursuant to this part are due and payable after notice 
of the Unit Team actions. When the inmate participates in the inmate 
financial responsibility program (see 28 CFR part 545, subpart B), fees 
are to be included under the category ``other federal government 
obligations'' and are to be paid before other financial obligations 
included in that same category. Fees may be subject to interest charges.



Sec. 505.7  Procedures for final disposition.

    Before the inmate completes his or her sentence, Unit Team staff 
must review the status of the inmate's fee. Any unpaid amount will be 
referred for collection in accordance with Federal Claims Collection 
Standards (4 CFR Chapter II).



PART 511--GENERAL MANAGEMENT POLICY--Table of Contents




Subpart A [Reserved]

   Subpart B--Searching and Detaining or Arresting Persons Other Than 
                                 Inmates

Sec.
511.10  Purpose and scope.
511.11  Definitions.
511.12  Procedures for searching visitors.
511.13  Controlled visiting--denying visits.
511.14  Right of refusal/termination of a visit.
511.15  Detaining visitors.
511.16  Use of arrest authority.

    Authority: 5 U.S.C. 301; 18 U.S.C. 751, 752, 1791, 1792, 1793, 3050, 
3621, 3622, 3624, 4001, 4012, 4042, 4081, 4082 (Repealed as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 
1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 
510; 28 CFR 0.95-0.99, 6.1.

    Source: 49 FR 44057, Nov. 1, 1984, unless otherwise noted.

Subpart A [Reserved]



   Subpart B--Searching and Detaining or Arresting Persons Other Than 
                                 Inmates



Sec. 511.10  Purpose and scope.

    (a) In an effort to prevent the introduction of contraband (such 
prohibited

[[Page 476]]

objects as defined in Sec. 511.11(c)) into an institution, Bureau of 
Prisons staff may subject all persons entering an institution, or during 
their presence in an institution, to a search of their persons and 
effects.
    (b) Title 18, United States Code, section 3050 authorizes Bureau of 
Prisons employees (does not include United States Public Health Service 
employees)--
    (1) To make an arrest on or off Bureau of Prisons premises without 
warrant for violation of the following provisions regardless of where 
the violation may occur: section 111 (assaulting officers), section 751 
(escape), section 752 (assisting escape) of title 18, United States 
Code, and section 1826(c) (escape) of title 28, United States Code;
    (2) To make an arrest on Bureau of Prisons premises or reservation 
land of a penal, detention, or correctional facility without warrant for 
violation occurring thereon of the following provisions: section 661 
(theft), section 1361 (depredation of property), section 1363 
(destruction of property), section 1791 (contraband), section 1792 
(mutiny and riot), and section 1793 (trespass) of title 18, United 
States Code, and
    (3) To arrest without warrant for any other offense described in 
title 18 or 21 of the United States Code, if committed on the premises 
or reservation of a penal or correctional facility of the Bureau of 
Prisons if necessary to safeguard security, good order, or government 
property. Bureau policy provides that such an arrest may be made when 
staff has probable cause to believe that a person has committed one of 
these offenses and when there is likelihood of the person escaping 
before a warrant can be obtained.

[59 FR 5924, Feb. 8, 1994]



Sec. 511.11  Definitions.

    (a) Reasonable suspicion. As used in this rule, reasonable suspicion 
exists if the facts and circumstances that are known to the Warden 
warrant rational inferences by a person with correctional experience 
that a person is engaged, or attempting or about to engage, in criminal 
or other prohibited behavior. A reasonable suspicion may be based on 
reliable information, even if that information is confidential; on a 
positive reading of a metal detector; or when contraband or an indicia 
of contraband is found during search of a visitor's personal effects.
    (b) Probable cause. As used in this rule, probable cause exists if 
the facts and circumstances that are known to the Warden would warrant a 
person of reasonable caution to believe that an offense has been 
committed.
    (c) Prohibited object. A firearm or destructive device; ammunition; 
a weapon or an object that is designed or intended to be used as a 
weapon or to facilitate escape from a prison; a narcotic drug, lysergic 
acid diethylamide, or phencyclidine; a controlled substance or alcoholic 
beverage; any United States or foreign currency; and any other object 
that threatens the order, discipline, or security of a prison, or the 
life, health, or safety of an individual.

[59 FR 5924, Feb. 8, 1994]



Sec. 511.12  Procedures for searching visitors.

    (a) The Warden shall post a notice outside the institution's secure 
perimeter advising all persons that it is a Federal crime to bring upon 
the institution grounds any weapons, intoxicants, drugs, or other 
contraband, and that all persons, property (including vehicles), and 
packages are subject to search. A person may not use either a camera or 
recording equipment on institution grounds without the written consent 
of the Warden.
    (b) The Warden may require visitors entering the institution from 
outside the secure perimeter to submit to a search:
    (1) By electronic means (for example, walk-through and/or hand-held 
metal detector).
    (2) Of personal effects. The institution ordinarily provides locker 
space for personal effects not taken into the visiting room.
    (c) The Warden may authorize a pat search of a visitor as a 
prerequisite to a visit when there is reasonable suspicion that the 
visitor possesses contraband, or is introducing or attempting to 
introduce contraband into the institution.
    (d) The Warden may authorize a visual search (visual inspection of 
all

[[Page 477]]

body surfaces and cavities) of a visitor as a prerequisite to a visit to 
an inmate in a low and above security level institution, or 
administrative institution, or in a pretrial or in a jail (detention) 
unit within any security level institution when there is reasonable 
suspicion that the visitor possesses contraband or is introducing or 
attempting to introduce contraband into the institution.
    (e) The Warden may authorize a breathalyzer or urine surveillance 
test or other comparable test of a visitor as a prerequisite to a visit 
to an inmate when there is reasonable suspicion that the visitor is 
under the influence of a narcotic, drug, or intoxicant. As stated in 
Sec. 511.14, the visitor may refuse to take the test, but the visit will 
not be allowed.
    (f) A pat search, visual search, or urine surveillance test is to be 
conducted by a person of the same sex as the visitor. A pat search, 
visual search, urine surveillance, or breathalyzer test shall be 
conducted out of the view of other visitors and inmates.

[49 FR 44057, Nov. 1, 1984, as amended at 51 FR 26126, July 18, 1986; 56 
FR 4159, Feb. 1, 1991; 59 FR 5925, Feb. 8, 1994; 63 FR 11818, Mar. 10, 
1998]



Sec. 511.13  Controlled visiting--denying visits.

    (a) The Warden may restrict visiting to controlled situations or to 
more closely supervised visits when there is any suspicion that the 
visitor is introducing or attempting to introduce contraband, or when 
there has been a prior incident of such introduction or attempted 
introduction, or when there is any concern, based upon sound 
correctional judgment, about the visitor presenting a risk to the 
orderly running of the visiting room or area.
    (b) The Warden may deny visiting privileges when a controlled or 
closely supervised visit is not possible.
    (c) Staff shall deny admission to the institution to a visitor who 
refuses to be screened by a metal detector or who refuses to undergo a 
search of person and/or effects as dictated by these rules.



Sec. 511.14  Right of refusal/termination of a visit.

    (a) A visitor who objects to any of the search or test or entrance 
procedures has the option of refusing and leaving the institution 
property, unless there is reason to detain and/or arrest.
    (b) Staff may terminate a visit upon determining that a visitor is 
in possession of, or is passing or attempting to pass contraband not 
previously detected during the search process, or is engaged in any 
conduct or behavior which poses a threat to the orderly or secure 
running of the institution, or to the safety of any person in the 
institution. The staff member terminating the visit is to prepare 
written documentation describing the basis for this action.



Sec. 511.15  Detaining visitors.

    (a) Staff may detain a visitor or any person who is found to be 
introducing or attempting to introduce such contraband as narcotics, 
intoxicants, lethal or poisonous chemicals or gases, guns, knives, or 
other weapons, or who is engaged in any other conduct which is a 
violation of law (including, but not limited to, actions which assist 
escape, such as possession of escape paraphernalia, or which induce 
riots), pending notification and arrival of appropriate law enforcement 
officials. The standard for such detention is a finding, based on 
probable cause, that the person has engaged in such a violation. 
Institution staff should not interrogate suspects unless immediate 
questioning is necessary to protect the security of the institution or 
the life or safety of any person.
    (b) Staff shall employ only the minimum amount of force necessary to 
detain the individual. Visitors will be detained in an area away from 
the sight of, and where there can be no contact with, other visitors and 
inmates.



Sec. 511.16  Use of arrest authority.

    To effect an arrest under any of the cited sections in 
Sec. 511.10(b) of this part, or under any future arrest authorization 
statute that may be approved by the Congress of the United States, staff 
shall have probable cause that the suspected individual is violating the 
law.

[[Page 478]]

Whenever possible, the Warden or designee shall make the determination 
as to whether an arrest should occur.



PART 512--RESEARCH--Table of Contents




Subpart A [Reserved]

                           Subpart B--Research

Sec.
512.10  Purpose and scope.
512.11  Requirements for research projects and researchers.
512.12  Content of research proposal.
512.13  Institutional Review Board.
512.14  Submission and processing of proposal.
512.15  Access to Bureau of Prisons records.
512.16  Informed consent.
512.17  Monitoring approved research projects.
512.18  Termination or suspension.
512.19  Reports.
512.20  Publication of results of research project.
512.21  Copyright provisions.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

Subpart A [Reserved]



                           Subpart B--Research

    Source: 59 FR 13860, Mar. 23, 1994, unless otherwise noted.



Sec. 512.10  Purpose and scope.

    General provisions for the protection of human subjects during the 
conduct of research are contained in 28 CFR part 46. The provisions of 
this subpart B specify additional requirements for prospective 
researchers (both employees and non-employees) to obtain approval to 
conduct research within the Bureau of Prisons (Bureau) and 
responsibilities of Bureau staff in processing proposals and monitoring 
research projects. Although some research may be exempt from 28 CFR part 
46 under Sec. 46.101(b)(5), as determined by the Office of Research and 
Evaluation (ORE) of the Bureau, no research is exempt from 28 CFR part 
512. For the purpose of this subpart, implementation of Bureau 
programmatic or operational initiatives made through pilot projects is 
not considered to be research.

[59 FR 13860, Mar. 23, 1994, as amended at 62 FR 6661, Feb. 12, 1997]



Sec. 512.11  Requirements for research projects and researchers.

    (a) Except as provided for in paragraph (b) of this section, the 
Bureau requires the following:
    (1) In all research projects the rights, health, and human dignity 
of individuals involved must be respected.
    (2) The project must have an adequate research design and contribute 
to the advancement of knowledge about corrections.
    (3) The project must not involve medical experimentation, cosmetic 
research, or pharmaceutical testing.
    (4) The project must minimize risk to subjects; risks to subjects 
must be reasonable in relation to anticipated benefits. The selection of 
subjects within any one institution must be equitable. When applicable, 
informed consent must be sought and documented (see Secs. 512.15 and 
512.16).
    (5) Incentives may not be offered to help persuade inmate subjects 
to participate. However, soft drinks and snacks to be consumed at the 
test setting may be offered. Reasonable accommodations such as nominal 
monetary recompense for time and effort may be offered to non-confined 
research subjects who are both:
    (i) No longer in Bureau of Prisons custody, and
    (ii) Participating in authorized research being conducted by Bureau 
employees or contractors.
    (6) The researcher must have academic preparation or experience in 
the area of study of the proposed research.
    (7) The researcher must assume responsibility for actions of any 
person engaged to participate in the research project as an associate, 
assistant, or subcontractor to the researcher.
    (8) Except as noted in the informed consent statement to the 
subject, the researcher must not provide research information which 
identifies a subject to any person without that subject's prior written 
consent to release the information. For example, research information 
identifiable to a particular

[[Page 479]]

individual cannot be admitted as evidence or used for any purpose in any 
action, suit or other judicial, administrative, or legislative 
proceeding without the written consent of the individual to whom the 
data pertains.
    (9) The researcher must adhere to applicable provisions of the 
Privacy Act of 1974 and regulations pursuant to this Act.
    (10) The research design must be compatible with both the operation 
of prison facilities and protection of human subjects. The researcher 
must observe the rules of the institution or office in which the 
research is conducted.
    (11) Any researcher who is a non-employee of the Bureau must sign a 
statement in which the researcher agrees to adhere to the provisions of 
this subpart.
    (12) Except for computerized data records maintained at an official 
Department of Justice site, records which contain nondisclosable 
information directly traceable to a specific person may not be stored 
in, or introduced into, an electronic retrieval system.
    (13) If the researcher is conducting a study of special interest to 
the Office of Research and Evaluation (ORE), but the study is not a 
joint project involving ORE, the researcher may be asked to provide ORE 
with the computerized research data, not identifiable to individual 
subjects, accompanied by detailed documentation. These arrangements must 
be negotiated prior to the beginning of the data collection phase of the 
project.
    (14) The researcher must submit planned methodological changes in a 
research project to the IRB for approval, and may be required to revise 
study procedures in accordance with the new methodology.
    (b) Requests from Federal agencies, the Congress, the Federal 
judiciary, or State or local governments to collect information about 
areas for which they are responsible and requests by private 
organizations for organizational rather than personal information from 
Bureau staff shall be reviewed by ORE to determine which provisions of 
this subpart may be waived without jeopardizing the safety of human 
subjects. ORE shall document in writing the waiver of any specific 
provision along with the justification.

[62 FR 6661, Feb. 12, 1997]



Sec. 512.12  Content of research proposal.

    When submitting a research proposal, the applicant shall provide the 
following information:
    (a) A summary statement which includes:
    (1) Name(s) and current affiliation(s) of the researcher(s);
    (2) Title of the study;
    (3) Purpose of the project;
    (4) Location of the project;
    (5) Methods to be employed;
    (6) Anticipated results;
    (7) Duration of the study;
    (8) Number of subjects (staff/inmates) required and amount of time 
required from each; and
    (9) Indication of risk or discomfort involved as a result of 
participation.
    (b) A comprehensive statement which includes:
    (1) Review of related literature;
    (2) Detailed description of the research method;
    (3) Significance of anticipated results and their contribution to 
the advancement of knowledge;
    (4) Specific resources required from the Bureau;
    (5) Description of all possible risks, discomforts, and benefits to 
individual subjects or a class of subjects, and a discussion of the 
likelihood that the risks and discomforts will actually occur;
    (6) Description of steps taken to minimize any risks described in 
(b)(5) of this section.
    (7) Description of physical and/or administrative procedures to be 
followed to:
    (i) Ensure the security of any individually identifiable data that 
are being collected for the project, and
    (ii) Destroy research records or remove individual identifiers from 
those records when the research has been completed.
    (8) Description of any anticipated effects of the research project 
on institutional programs and operations; and
    (9) Relevant research materials such as vitae, endorsements, sample 
informed consent statements, questionnaires, and interview schedules.

[[Page 480]]

    (c) A statement regarding assurances and certification required by 
28 CFR part 46, if applicable.



Sec. 512.13  Institutional Review Board.

    (a) The Bureau of Prisons' central institutional review board shall 
be called the Bureau Research Review Board (BRRB). It shall consist of 
the Chief, ORE, at least four other members, and one alternate, 
appointed by the Director, and shall meet a sufficient number of times 
to insure that each project covered by 28 CFR part 46 receives an annual 
review. A majority of members shall not be Bureau employees. The BRRB 
shall include an individual with legal expertise and a representative 
for inmates whom the Director determines is able to identify with inmate 
concerns and evaluate objectively a research proposal's impact on, and 
relevance to, inmates and to the correctional process.
    (b) The Chief, ORE, shall serve as chairperson of the BRRB. If a 
potential conflict of interest exists for the BRRB chairperson on a 
particular research proposal, the Assistant Director, Information, 
Policy, and Public Affairs Division, shall appoint another individual to 
serve as chairperson on matters pertaining to that project.



Sec. 512.14  Submission and processing of proposal.

    (a) An applicant may submit a preliminary research proposal for 
review by the Office of Research and Evaluation, Federal Bureau of 
Prisons, 320 First Street, NW., Washington, DC 20534. Staff response to 
the preliminary proposal does not constitute a final decision.
    (b) If the study is to be conducted at only one institution, the 
applicant shall submit a formal proposal to the warden of that 
institution. Proposal processing will be as follows:
    (1) The warden shall appoint a local research review board to 
consult with operational staff, to evaluate the proposal for compliance 
with research policy, and to make recommendations to the warden. The 
local research review board is encouraged, but not required, to meet the 
membership requirements of an IRB, as specified in 28 CFR part 46.
    (2) The warden shall review the comments of the board, make a 
recommendation regarding the proposal, and forward the proposal package 
to the Regional Director, with a copy to the Chief, ORE.
    (3) The Regional Director shall review the proposal and forward 
recommendations to the Chief, ORE.
    (c) If the study is to be conducted at more than one institution or 
at any other Bureau location, the applicant shall submit the research 
proposal to the Chief, Office of Research and Evaluation, Federal Bureau 
of Prisons, 320 First Street, NW., Washington, DC 20534. The Chief, ORE, 
shall determine an appropriate review process.
    (d) All formal proposals will be reviewed by the BRRB.
    (e) The BRRB chairperson may exercise the authority of the full BRRB 
under an expedited review process when another official IRB (either 
within or outside the Bureau) has approved the research, or when, in 
his/her judgment, the research proposal meets the minimal risk standard 
and involves only the following:
    (1) The study of existing data, documents, or records; and/or
    (2) The study of individual or group behavior or characteristics of 
individuals, where the investigator does not manipulate subjects' 
behavior and the research will not involve stress to subjects. Such 
research would include test development and studies of perception, 
cognition, or game theory. If a proposal is processed under expedited 
review, the BRRB chairperson must document in writing the reason for 
that determination.
    (f) The Chief, ORE, shall review all recommendations made and shall 
submit them in writing to the Director, Bureau of Prisons.
    (g) The Director, Bureau of Prisons, has final authority to approve 
or disapprove all research proposals. The Director may delegate this 
authority to the Assistant Director, Information, Policy, and Public 
Affairs Division.
    (h) The approving authority shall notify in writing the involved 
region(s),

[[Page 481]]

institution(s), and the prospective researcher of the final decision on 
a research proposal.

[59 FR 13860, Mar. 23, 1994, as amended at 62 FR 6661, Feb. 12, 1997]



Sec. 512.15  Access to Bureau of Prisons records.

    (a) Employees, including consultants, of the Bureau who are 
conducting authorized research projects shall have access to those 
records relating to the subject which are necessary to the purpose of 
the research project without having to obtain the subject's consent.
    (b) A non-employee of the Bureau is limited in access to information 
available under the Freedom of Information Act (5 U.S.C. 552).
    (c) A non-employee of the Bureau may receive records in a form not 
individually identifiable when advance adequate written assurance that 
the record will be used solely as a statistical research or reporting 
record is provided to the agency (5 U.S.C. 552a(b)(5)).



Sec. 512.16  Informed consent.

    (a) Before commencing a research project requiring participation by 
staff or inmates, the researcher shall give each participant a written 
informed consent statement containing the following information:
    (1) Identification of the principal investigator(s);
    (2) Objectives of the research project;
    (3) Procedures to be followed in the conduct of research;
    (4) Purpose of each procedure;
    (5) Anticipated uses of the results of the research;
    (6) A statement of benefits reasonably to be expected;
    (7) A declaration concerning discomfort and risk, including a 
description of anticipated discomfort and risk;
    (8) A statement that participation is completely voluntary and that 
the participant may withdraw consent and end participation in the 
project at any time without penalty or prejudice (the inmate will be 
returned to regular assignment or activity by staff as soon as 
practicable);
    (9) A statement regarding the confidentiality of the research 
information and exceptions to any guarantees of confidentiality required 
by federal or state law. For example, a researcher may not guarantee 
confidentiality when the subject indicates an intent to commit future 
criminal conduct or harm himself/herself or someone else, or, if the 
subject is an inmate, indicates an intent to leave the facility without 
authorization.
    (10) A statement that participation in the research project will 
have no effect on the inmate participant's release date or parole 
eligibility;
    (11) An offer to answer questions about the research project; and
    (12) Appropriate additional information as needed to describe 
adequately the nature and risks of the research.
    (b) A researcher who is an employee of the Bureau shall include in 
the informed consent statement a declaration of the authority under 
which the research is conducted.
    (c) A researcher who is an employee of the Bureau, in addition to 
presenting the statement of informed consent to the subject, shall also 
obtain the subject's signature on the statement of informed consent, 
when:
    (1) The subject's activity requires something other than response to 
a questionnaire or interview; or
    (2) The Chief, ORE, determines the research project or data-
collection instrument is of a sensitive nature.
    (d) A researcher who is a non-employee of the Bureau, in addition to 
presenting the statement of informed consent to the subject, shall also 
obtain the subject's signature on the statement of informed consent 
prior to initiating the research activity. The researcher may not be 
required to obtain the signature if the researcher can demonstrate that 
the only link to the subject's identity is the signed statement of 
informed consent or that there is significantly more risk to the subject 
if the statement is signed. The signed statement shall be submitted to 
the chairperson of the appropriate local research review board.



Sec. 512.17  Monitoring approved research projects.

    The BRRB shall monitor all research projects for compliance with 
Bureau policies. At a minimum, yearly reviews will be conducted.

[[Page 482]]



Sec. 512.18  Termination or suspension.

    The Director, Bureau of Prisons, may suspend or terminate a research 
project if it is believed that the project violates research policy or 
that its continuation may prove detrimental to the inmate population, 
the staff, or the orderly operation of the institution.



Sec. 512.19  Reports.

    The researcher shall prepare reports of progress on the research and 
at least one report of findings.
    (a) At least once a year, the researcher shall provide the Chief, 
ORE, with a report on the progress of the research.
    (b) At least 12 working days before any report of findings is to be 
released, the researcher shall distribute one copy of the report to each 
of the following: the chairperson of the BRRB, the regional director, 
and the warden of each institution which provided data or assistance. 
The researcher shall include an abstract in the report of findings.



Sec. 512.20  Publication of results of research project.

    (a) A researcher may publish in book form and professional journals 
the results of any research project conducted under this subpart.
    (1) In any publication of results, the researcher shall acknowledge 
the Bureau's participation in the research project.
    (2) The researcher shall expressly disclaim approval or endorsement 
of the published material as an expression of the policies or views of 
the Bureau.
    (b) Prior to submitting for publication the results of a research 
project conducted under this subpart, the researcher shall provide two 
copies of the material, for informational purposes only, to the Chief, 
Office of Research and Evaluation, Central Office, Bureau of Prisons.

[59 FR 13860, Mar. 23, 1994, as amended at 62 FR 6662, Feb. 12, 1997]



Sec. 512.21  Copyright provisions.

    (a) An employee of the Bureau may not copyright any work prepared as 
part of his/her official duties.
    (b) As a precondition to the conduct of research under this subpart, 
a non-employee shall grant in writing to the Bureau a royalty-free, non-
exclusive, and irrevocable license to reproduce, publish, translate, and 
otherwise use and authorize others to publish and use original materials 
developed as a result of research conducted under this subpart.
    (c) Subject to a royalty-free, non-exclusive and irrevocable 
license, which the Bureau of Prisons reserves, to reproduce, publish, 
translate, and otherwise use and authorize others to publish and use 
such materials, a non-employee may copyright original materials 
developed as a result of research conducted under this subpart.

[59 FR 13860, Mar. 23, 1994, as amended at 62 FR 6662, Feb. 12, 1997]



PART 513--ACCESS TO RECORDS--Table of Contents




Subpart A [Reserved]

       Subpart B--Production or Disclosure of FBI/NCIC Information

Sec.
513.10  Purpose and scope.
513.11  Procedures for requesting a FBI identification record or a NCIC/
          III record.
513.12  Inmate request for record clarification.

      Subpart C--Release of Information to Law Enforcement Agencies

513.20  Release of information to law enforcement agencies.

                    Subpart D--Release of Information

                    General Provisions and Procedures

513.30  Purpose and scope.
513.31  Limitations.
513.32  Guidelines for disclosure.
513.33  Production of records in court.
513.34  Protection of individual privacy--disclosure of records to third 
          parties.
513.35  Accounting/nonaccounting of disclosures to third parties.
513.36  Government contractors.

             Inmate Requests to Institution for Information

513.40  Inmate access to Inmate Central File.
513.41  Inmate access to Inmate Central File in connection with parole 
          hearings.
513.42  Inmate access to medical records.
513.43  Inmate access to certain Bureau Program Statements.

[[Page 483]]

513.44  Fees for copies of Inmate Central File and Medical Records.

                  Privacy Act Requests for Information

513.50  Privacy Act requests by inmates.

           Freedom of Information Act Requests for Information

513.60  Freedom of Information Act requests.
513.61  Freedom of Information Act requests by inmates.
513.62  Freedom of Information Act requests by former inmates.
513.63  Freedom of Information Act requests on behalf of an inmate or 
          former inmate.
513.64  Acknowledgment of Freedom of Information Act requests.
513.65  Review of documents for Freedom of Information Act requests.
513.66  Denials and appeals of Freedom of Information Act requests.
513.67  Fees for Freedom of Information Act requests.
513.68  Time limits for responses to Freedom of Information Act 
          requests.

    Authority: 5 U.S.C. 301, 552, 552a; 13 U.S.C.; 18 U.S.C. 3621, 3622, 
3624, 4001, 4042, 4081, 4082 (Repealed in part as to conduct occurring 
on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984, as 
to conduct occurring after that date), 5039; 28 U.S.C. 509, 510; 31 
U.S.C. 3711(f); 5 CFR part 297; 28 CFR 0.95-0.99 and parts 16 and 301.

    Source: 45 FR 44228, June 30, 1980, unless otherwise noted.

Subpart A [Reserved]



       Subpart B--Production or Disclosure of FBI/NCIC Information

    Source: 58 FR 68765, Dec. 29, 1993, unless otherwise noted.



Sec. 513.10  Purpose and scope.

    This subpart describes the procedures to be followed by an inmate 
who requests a copy of his or her FBI identification record or National 
Crime Information Center Interstate Identification Index (NCIC/III) 
record and references the procedures to follow in order to challenge the 
contents of such record.



Sec. 513.11  Procedures for requesting a FBI identification record or a NCIC/III record.

    (a) FBI identification record. (1) An inmate may request a copy of 
his or her current FBI identification record directly from the FBI by 
following the procedure outlined in 28 CFR 16.30 through 16.34.
    (i) Bureau of Prisons staff shall assist the inmate to obtain the 
fingerprint impressions required to be submitted with such an 
application.
    (ii) The inmate may direct that funds be withdrawn from his or her 
institution account to pay the applicable fee.
    (2) An inmate may request a copy of his or her FBI identification 
record from institution staff.
    (i) If the requested FBI identification record is in the inmate's 
institution file, staff shall provide the inmate with a copy.
    (ii) If the requested FBI identification record is not in the 
inmate's institution file, staff shall direct the inmate to the 
procedure referenced in paragraph (a)(1) of this section.
    (b) NCIC/III identification record. An inmate who wishes to obtain a 
copy of his or her NCIC/III record must submit a written request to the 
FBI. The procedures outlined in 28 CFR 16.32, 16.33, and paragraphs 
(a)(1)(i) and (ii) of this section apply to such request.



Sec. 513.12  Inmate request for record clarification.

    Where the inmate believes that his or her FBI identification record 
is incorrect or inaccurate, the inmate may follow procedures outlined in 
28 CFR 16.34. The procedures in 28 CFR 16.34 also apply for the 
clarification of an inmate's NCIC/III record.



      Subpart C--Release of Information to Law Enforcement Agencies



Sec. 513.20  Release of information to law enforcement agencies.

    (a) The Bureau of Prisons will provide to the head of any law 
enforcement agency of a state or of a unit of local government in a 
state 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. Law enforcement personnel interested in obtaining this 
information must forward a written request to the appropriate

[[Page 484]]

Regional Community Programs Administrator (see 28 CFR part 503 for the 
mailing address). The type of information that the Bureau of Prisons may 
provide is set forth in 18 U.S.C. 4082(f). That information includes: 
names, dates of birth, FBI numbers, nature of the offenses against the 
United States, fingerprints, photographs, and the designated community 
treatment centers, with prospective dates of release.
    (b) Any law enforcement agency which receives information under this 
rule may not disseminate such information outside of such agency. If an 
agency disseminates information contrary to this restriction, the Bureau 
of Prisons may terminate or suspend release of information to that 
agency.

[53 FR 15538, Apr. 29, 1988]



                    Subpart D--Release of Information

    Source: 61 FR 64950, Dec. 9, 1996, unless otherwise noted.

                    General Provisions and Procedures



Sec. 513.30  Purpose and scope.

    This subpart establishes procedures for the release of requested 
records in possession of the Federal Bureau of Prisons (``Bureau''). It 
is intended to implement provisions of the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and to 
supplement Department of Justice (DOJ) regulations concerning the 
production or disclosure of records or information, 28 CFR part 16.



Sec. 513.31  Limitations.

    (a) Social Security Numbers. As of September 27, 1975, Social 
Security Numbers may not be used in their entirety as a method of 
identification for any Bureau record system, unless such use is 
authorized by statute or by regulation adopted prior to January 1, 1975.
    (b) Employee records. Access and amendment of employee personnel 
records under the Privacy Act are governed by Office of Personnel 
Management regulations published in 5 CFR part 297 and by Department of 
Justice regulations published in 28 CFR part 16.



Sec. 513.32  Guidelines for disclosure.

    The Bureau provides for the disclosure of agency information 
pursuant to applicable laws, e.g. the Freedom of Information Act (5 
U.S.C. 552), and the Privacy Act (5 U.S.C. 552a).



Sec. 513.33  Production of records in court.

    Bureau records are often sought by subpoena, court order, or other 
court demand, in connection with court proceedings. The Attorney General 
has directed that these records may not be produced in court without the 
approval of the Attorney General or his or her designee. The guidelines 
are set forth in 28 CFR part 16, subpart B.



Sec. 513.34  Protection of individual privacy--disclosure of records to third parties.

    (a) Information that concerns an individual and is contained in a 
system of records maintained by the Bureau shall not be disclosed to any 
person, or to another agency except under the provisions of the Privacy 
Act, 5 U.S.C. 552a, the Freedom of Information Act, 5 U.S.C. 552, and 
Departmental regulations.
    (b) Lists of Bureau inmates shall not be disclosed.



Sec. 513.35  Accounting/nonaccounting of disclosures to third parties.

    Accounting/nonaccounting of disclosures to third parties shall be 
made in accordance with Department of Justice regulations contained in 
28 CFR 16.52.



Sec. 513.36  Government contractors.

    (a) No Bureau component may contract for the operation of a record 
system by or on behalf of the Bureau without the express written 
approval of the Director or the Director's designee.
    (b) Any contract which is approved shall contain the standard 
contract requirements promulgated by the General Services Administration 
(GSA) to ensure compliance with the requirements imposed by the Privacy 
Act. The contracting component shall have the responsibility to ensure 
that the contractor complies with the contract requirements relating to 
privacy.

[[Page 485]]

             Inmate Requests to Institution for Information



Sec. 513.40  Inmate access to Inmate Central File.

    Inmates are encouraged to use the simple access procedures described 
in this section to review disclosable records maintained in his or her 
Inmate Central File, rather than the FOIA procedures described in 
Secs. 513.60 through 513.68 of this subpart. Disclosable records in the 
Inmate Central File include, but are not limited to, documents relating 
to the inmate's sentence, detainer, participation in Bureau programs 
such as the Inmate Financial Responsibility Program, classification 
data, parole information, mail, visits, property, conduct, work, release 
processing, and general correspondence. This information is available 
without filing a FOIA request. If any information is withheld from the 
inmate, staff will provide the inmate with a general description of that 
information and also will notify the inmate that he or she may file a 
FOIA request.
    (a) Inmate review of his or her Inmate Central File. An inmate may 
at any time request to review all disclosable portions of his or her 
Inmate Central File by submitting a request to a staff member designated 
by the Warden. Staff are to acknowledge the request and schedule the 
inmate, as promptly as is practical, for a review of the file at a time 
which will not disrupt institution operations.
    (b) Procedures for inmate review of his or her Inmate Central File. 
(1) Prior to the inmate's review of the file, staff are to remove the 
Privacy Folder which contains documents withheld from disclosure 
pursuant to Sec. 513.32.
    (2) During the file review, the inmate is to be under direct and 
constant supervision by staff. The staff member monitoring the review 
shall enter the date of the inmate's file review on the Inmate Activity 
Record and initial the entry. Staff shall ask the inmate to initial the 
entry also, and if the inmate refuses to do so, shall enter a notation 
to that effect.
    (3) Staff shall advise the inmate if there are documents withheld 
from disclosure and, if so, shall advise the inmate of the inmate's 
right under the provisions of Sec. 513.61 to make a FOIA request for the 
withheld documents.



Sec. 513.41  Inmate access to Inmate Central File in connection with parole hearings.

    A parole-eligible inmate (an inmate who is currently serving a 
sentence for an offense committed prior to November 1, 1987) may review 
disclosable portions of the Inmate Central File prior to the inmate's 
parole hearing, under the general procedures set forth in Sec. 513.40. 
In addition, the following guidelines apply:
    (a) A parole-eligible inmate may request to review his or her Inmate 
Central File by submitting the appropriate Parole Commission form. This 
form ordinarily shall be available to each eligible inmate within five 
work days after a list of eligible inmates is prepared.
    (b) Bureau staff ordinarily shall schedule an eligible inmate for a 
requested Inmate Central File review within seven work days of the 
request after the inmate has been scheduled for a parole hearing. A 
reasonable extension of time is permitted for documents which have been 
provided (prior to the inmate's request) to originating agencies for 
clearance, or which are otherwise not available at the institution.
    (c) A report received from another agency which is determined to be 
nondisclosable (see Sec. 513.40(b)) will be summarized by that agency, 
in accordance with Parole Commission regulations. Bureau staff shall 
place the summary in the appropriate disclosable section of the Inmate 
Central File. The original report (or portion which is summarized in 
another document) will be placed in the portion of the Privacy File for 
Joint Use by the Bureau and the Parole Commission.
    (d) Bureau documents which are determined to be nondisclosable to 
the inmate will be summarized for the inmate's review. A copy of the 
summary will be placed in the disclosable section of the Inmate Central 
File. The document from which the summary is taken will be placed in the 
Joint Use Section of the Privacy Folder. Nondisclosable documents not 
summarized for the inmate's review are not

[[Page 486]]

available to the Parole Commission and are placed in a nondisclosable 
section of the Inmate Central File.
    (e) When no response regarding disclosure has been received from an 
originating agency in time for inmate review prior to the parole 
hearing, Bureau staff are to inform the Parole Commission Hearing 
Examiner.



Sec. 513.42  Inmate access to medical records.

    (a) Except for the limitations of paragraphs (c) and (d) of this 
section, an inmate may review records from his or her medical file 
(including dental records) by submitting a request to a staff member 
designated by the Warden.
    (b) Laboratory reports which contain only scientific testing results 
and which contain no staff evaluation or opinion (such as Standard Form 
514A, Urinalysis) are ordinarily disclosable. Lab results of HIV testing 
may be reviewed by the inmate. However, an inmate may not retain a copy 
of his or her test results while the inmate is confined in a Bureau 
facility or a Community Corrections Center. A copy of an inmate's HIV 
test results may be forwarded to a third party outside the institution 
and chosen by the inmate, provided that the inmate gives written 
authorization for the disclosure.
    (c) Medical records containing subjective evaluations and opinions 
of medical staff relating to the inmate's care and treatment will be 
provided to the inmate only after the staff review required by paragraph 
(d) of this section. These records include, but are not limited to, 
outpatient notes, consultation reports, narrative summaries or reports 
by a specialist, operative reports by the physician, summaries by 
specialists as the result of laboratory analysis, or in-patient progress 
reports.
    (d) Prior to release to the inmate, records described in paragraph 
(c) of this section shall be reviewed by staff to determine if the 
release of this information would present a harm to either the inmate or 
other individuals. Any records determined not to present a harm will be 
released to the inmate at the conclusion of the review by staff. If any 
records are determined by staff not to be releasable based upon the 
presence of harm, the inmate will be so advised in writing and provided 
the address of the agency component to which the inmate may address a 
formal request for the withheld records. An accounting of any medical 
records will be maintained in the inmate's medical file.



Sec. 513.43  Inmate access to certain Bureau Program Statements.

    Inmates are encouraged to use the simple local access procedures 
described in this section to review certain Bureau Program Statements, 
rather than the FOIA procedures described in Secs. 513.60 through 513.68 
of this subpart.
    (a) For a current Bureau Program Statement containing rules 
(regulations published in the Federal Register and codified in 28 CFR), 
local access is available through the institution law library.
    (b) For a current Bureau Program Statement not containing rules 
(regulations published in the Federal Register and codified in 28 CFR), 
inmates may request that it be placed in the institution law library. 
Placement of a requested Program Statement in the law library is within 
the discretion of the Warden, based upon local institution conditions.
    (c) Inmates are responsible for the costs of making personal copies 
of any Program Statements maintained in the institution law library. For 
copies of Program Statements obtained under the FOIA procedures 
described in Secs. 513.60 through 513.68 of this subpart, fees will be 
calculated in accordance with 28 CFR 16.10.



Sec. 513.44  Fees for copies of Inmate Central File and Medical Records.

    Within a reasonable time after a request, Bureau staff are to 
provide an inmate personal copies of requested disclosable documents 
maintained in the Inmate Central File and Medical Record. Fees for the 
copies are to be calculated in accordance with 28 CFR 16.10.

[[Page 487]]

                  Privacy Act Requests for Information



Sec. 513.50  Privacy Act requests by inmates.

    Because inmate records are exempt from disclosure under the Privacy 
Act (see 28 CFR 16.97), inmate requests for records under the Privacy 
Act will be processed in accordance with the FOIA. See Secs. 513.61 
through 513.68.

           Freedom of Information Act Requests for Information



Sec. 513.60  Freedom of Information Act requests.

    Requests for any Bureau record (including Program Statements and 
Operations Memoranda) ordinarily shall be processed pursuant to the 
Freedom of Information Act, 5 U.S.C. 552. Such a request must be made in 
writing and addressed to the Director, Federal Bureau of Prisons, 320 
First Street, NW., Washington, D.C. 20534. The requester shall clearly 
mark on the face of the letter and the envelope ``FREEDOM OF INFORMATION 
REQUEST,'' and shall clearly describe the records sought. See 
Secs. 513.61 through 513.63 for additional requirements.



Sec. 513.61  Freedom of Information Act requests by inmates.

    (a) Inmates are encouraged to use the simple access procedures 
described in Sec. 513.40 to review disclosable records maintained in his 
or her Inmate Central File.
    (b) An inmate may make a request for access to documents in his or 
her Inmate Central File or Medical File (including documents which have 
been withheld from disclosure during the inmate's review of his or her 
Inmate Central File pursuant to Sec. 513.40) and/or other documents 
concerning the inmate which are not contained in the Inmate Central File 
or Medical File. Staff shall process such a request pursuant to the 
applicable provisions of the Freedom of Information Act, 5 U.S.C. 552.
    (c) The inmate requester shall clearly mark on the face of the 
letter and on the envelope ``FREEDOM OF INFORMATION ACT REQUEST'', and 
shall clearly describe the records sought, including the approximate 
dates covered by the record. An inmate making such a request must 
provide his or her full name, current address, date and place of birth. 
In addition, if the inmate requests documents to be sent to a third 
party, the inmate must provide with the request an example of his or her 
signature, which must be verified and dated within three (3) months of 
the date of the request.



Sec. 513.62  Freedom of Information Act requests by former inmates.

    Former federal inmates may request copies of their Bureau records by 
writing to the Director, Federal Bureau of Prisons, 320 First Street, 
NW., Washington, D.C. 20534. Such requests shall be processed pursuant 
to the provisions of the Freedom of Information Act. The request must be 
clearly marked on the face of the letter and on the envelope ``FREEDOM 
OF INFORMATION ACT REQUEST'', and must describe the record sought, 
including the approximate dates covered by the record. A former inmate 
making such a request must provide his or her full name, current 
address, date and place of birth. In addition, the requester must 
provide with the request an example of his or her signature, which must 
be either notarized or sworn under penalty of perjury, and dated within 
three (3) months of the date of the request.



Sec. 513.63  Freedom of Information Act requests on behalf of an inmate or former inmate.

    A request for records concerning an inmate or former inmate made by 
an authorized representative of that inmate or former inmate will be 
treated as in Sec. 513.61, on receipt of the inmate's or former inmate's 
written authorization. This authorization must be dated within three (3) 
months of the date of the request letter. Identification data, as listed 
in 28 CFR 16.41, must be provided.



Sec. 513.64  Acknowledgment of Freedom of Information Act requests.

    (a) All requests for records under the Freedom of Information Act 
received by the FOI/PA Administrator, Office of General Counsel, will be 
reviewed and

[[Page 488]]

may be forwarded to the appropriate Regional Office for proper handling. 
Requests for records located at a Bureau facility other than the Central 
Office or Regional Office may be referred to the appropriate staff at 
that facility for proper handling.
    (b) The requester shall be notified of the status of his or her 
request by the office with final responsibility for processing the 
request.



Sec. 513.65  Review of documents for Freedom of Information Act requests.

    If a document is deemed to contain information exempt from 
disclosure, any reasonably segregable portion of the record shall be 
provided to the requester after deletion of the exempt portions. If 
documents, or portions of documents, in an Inmate Central File have been 
determined to be nondisclosable by institution staff but are later 
released by Regional or Central Office staff pursuant to a request under 
this section, appropriate instructions will be given to the institution 
to move those documents, or portions, from the Inmate Privacy Folder 
into the disclosable section of the Inmate Central File.



Sec. 513.66  Denials and appeals of Freedom of Information Act requests.

    If a request made pursuant to the Freedom of Information Act is 
denied in whole or in part, a denial letter must be issued and signed by 
the Director or his or her designee, and shall state the basis for 
denial under Sec. 513.32. The requester who has been denied such access 
shall be advised that he or she may appeal that decision to the Office 
of Information and Privacy, U.S. Department of Justice, Suite 570, Flag 
Building, Washington, D.C. 20530. Both the envelope and the letter of 
appeal itself should be clearly marked: ``Freedom of Information Act 
Appeal.''



Sec. 513.67  Fees for Freedom of Information Act requests.

    Fees for copies of records disclosed under the FOIA, including fees 
for a requester's own records, may be charged in accordance with 
Department of Justice regulations contained in 28 CFR 16.10.



Sec. 513.68  Time limits for responses to Freedom of Information Act requests.

    Consistent with sound administrative practice and the provisions of 
28 CFR 16.1, the Bureau strives to comply with the time limits set forth 
in the Freedom of Information Act.

[[Page 489]]



      SUBCHAPTER B--INMATE ADMISSION, CLASSIFICATION, AND TRANSFER





PART 522--ADMISSION TO INSTITUTION--Table of Contents




Subpart A [Reserved]

             Subpart B--Civil Contempt of Court Commitments

Sec.
522.10  Purpose and scope.
522.11  Procedures.

                       Subpart C--Intake Screening

522.20  Purpose and scope.
522.21  Procedures.

        Subpart D--Unescorted Transfers and Voluntary Surrenders

522.30  Purpose and scope.

                          Subpart E--[Reserved]

      

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 4161-4166 (Repealed in part as to offenses committed 
on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984, as 
to offenses committed after that date), 5039; 28 U.S.C. 509, 510.

    Source: 44 FR 38244, June 29, 1979, unless otherwise noted.

Subpart A [Reserved]



             Subpart B--Civil Contempt of Court Commitments



Sec. 522.10  Purpose and scope.

    Occasionally federal civil commitments for contempt of court may be 
referred to the Bureau of Prisons. These cases are not regular 
commitments to the custody of the Attorney General and are not 
convictions for any offense against the laws of the United States. The 
Bureau of Prisons cooperates with the federal courts in implementing the 
sentence by making its facilities and resources available. The 
confinement of civil contempt inmates shall terminate when the Bureau of 
Prisons receives notification from the court that the reason for the 
contempt commitment has ended or that the inmate is to be released for 
any other reason.



Sec. 522.11  Procedures.

    (a) The U.S. Marshal's Service has primary jurisdiction in federal 
civil contempt commitments.
    (b) When a U.S. Marshal requests designation from the Bureau of 
Prisons for a federal civil contempt commitment because local jails are 
not suitable, due to medical, security or other reasons, staff may 
designate the nearest Bureau institution having the necessary 
facilities.
    (c) When the committing court specifies a Bureau of Prisons 
institution as the place of incarceration in its contempt order, the 
Bureau of Prisons shall designate that specified facility in accordance 
with the judicial wishes, unless there is a reason for not placing the 
inmate in that facility, in which case the matter shall be called to the 
attention of the court and an attempt made to arrive at an acceptable 
place of confinement with the agreement of the committing court.
    (d) If a federal criminal sentence of imprisonment (including a 
Narcotic Addict Rehabilitation Act or Youth Corrections Act commitment) 
exists when a civil contempt commitment is ordered, credit towards 
service of the criminal sentence is delayed or suspended for the 
duration of the contempt commitment unless the committing judge orders 
otherwise.
    (e)(1) If a civil contempt commitment order is in effect when a 
criminal sentence of imprisonment is imposed under 18 U.S.C. Chapter 227 
(as applicable to offenses committed before November 1, 1987), the 
criminal sentence runs concurrently with the commitment order unless the 
sentencing judge orders otherwise.
    (2) If a civil contempt commitment order is in effect when a 
criminal sentence of imprisonment is imposed under 18 U.S.C. Chapter 227 
(as applicable to offenses committed on or after

[[Page 490]]

November 1, 1987), the criminal sentence runs consecutively to the 
commitment order unless the sentencing judge orders otherwise.
    (f) An inmate serving a civil contempt sentence in a Bureau 
institution will be treated the same as a person awaiting trial; where 
the inmate is serving a civil contempt sentence and a concurrent 
criminal sentence, the inmate will be treated the same as a person 
serving a criminal sentence.
    (g) An inmate is not entitled to statutory or extra good time 
credits under 18 U.S.C. 4161-62 while only the civil contempt sentence 
is in effect. Nor is an inmate entitled to good conduct time credits 
under 18 U.S.C. 3624(b). Time spent serving only a civil contempt 
sentence is not considered jail time under 18 U.S.C. 3568 or 18 U.S.C. 
3585(b).

[44 FR 38244, June 29, 1979, as amended at 59 FR 16406, Apr. 6, 1994; 65 
FR 34363, May 26, 2000]



                       Subpart C--Intake Screening



Sec. 522.20  Purpose and scope.

    Bureau of Prisons staff screen newly arrived inmates to ensure that 
Bureau health, safety, and security standards are met.

[45 FR 44229, June 30, 1980]



Sec. 522.21  Procedures.

    (a) Except for such camps and other satellite facilities where 
segregating a newly arrived inmate in detention is not feasible, the 
Warden shall ensure that a newly arrived inmate is cleared by the 
Medical Department and provided a social interview by staff before 
assignment to the general population.
    (1) Immediately upon an inmate's arrival, staff shall interview the 
inmate to determine if there are non-medical reasons for housing the 
inmate away from the general population. Staff shall evaluate both the 
general physical appearance and emotional condition of the inmate.
    (2) Within 24 hours after an inmate's arrival, medical staff shall 
medically screen the inmate in compliance with Bureau of Prisons' 
medical procedures to determine if there are medical reasons for housing 
the inmate away from the general population or for restricting temporary 
work assignments.
    (3) Staff shall place recorded results of the intake medical 
screening and the social interview in the inmate's central file.

[45 FR 44229, June 30, 1980]



        Subpart D--Unescorted Transfers and Voluntary Surrenders



Sec. 522.30  Purpose and scope.

    When the court orders or recommends an unescorted commitment to a 
Bureau of Prisons institution, the Bureau of Prisons authorizes the 
commitment and designates the institution for service of sentence. The 
Bureau of Prisons also authorizes furlough transfers of inmates between 
Bureau of Prisons institutions or to nonfederal institutions in 
appropriate circumstances in accordance with 18 U.S.C. 3622 or 4082, and 
within the guidelines of the Bureau of Prisons policy on furloughs, 
which allows inmates to travel unescorted and to report voluntarily to 
an assigned institution.

[61 FR 64953, Dec. 9, 1996]

Subpart E--[Reserved]



PART 523--COMPUTATION OF SENTENCE--Table of Contents




                          Subpart A--Good Time

Sec.
523.1  Definitions.
523.2  Good time credit for violators.

                       Subpart B--Extra Good Time

523.10  Purpose and scope.
523.11  Meritorious good time.
523.12  Work/study release good time.
523.13  Community corrections center good time.
523.14  Industrial good time.
523.15  Camp or farm good time.
523.16  Lump sum awards.
523.17  Procedures.

                      Subpart C--Good Conduct Time

523.20  Good conduct time.

[[Page 491]]

      Subpart D--District of Columbia Educational Good Time Credit

523.30  What is educational good time sentence credit?
523.31  Who is eligible for DCEGT?
523.32  How much DCEGT can I earn?
523.33  How is eligibility for DCEGT limited?
523.34  How can I challenge DCEGT award decisions?

    Authority: 5 U.S.C. 301; 18 U.S.C. 3568 (repealed November 1, 1987 
as to offenses committed on or after that date), 3621, 3622, 3624, 4001, 
4042, 4081, 4082 (Repealed in part as to conduct occurring on or after 
November 1, 1987), 4161-4166 (repealed October 12, 1984 as to offenses 
committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 
1984 as to conduct occurring after that date), 5039; 28 U.S.C. 509, 510; 
28 CFR 0.95-0.99.

    Source: 54 FR 32028, Aug. 3, 1989, unless otherwise noted.



                          Subpart A--Good Time



Sec. 523.1  Definitions.

    (a) Statutory good time means a credit to a sentence as authorized 
by 18 U.S.C. 4161. The total amount of statutory good time which an 
inmate is entitled to have deducted on any given sentence, or aggregate 
of sentences, is calculated and credited in advance, when the sentence 
is computed.
    (b) Extra good time means a credit to a sentence as authorized by 18 
U.S.C. 4162 for performing exceptionally meritorious service or for 
performing duties of outstanding importance in an institution or for 
employment in a Federal Prison Industry or Camp. ``Extra Good Time'' 
thus includes Meritorious Good Time, Work/Study Release Good Time, 
Community Corrections Center Good Time, Industrial Good Time, Camp or 
Farm Good Time, and Lump Sum Awards. Extra good time and seniority are 
inseparable with the exception of lump sum awards for which no seniority 
is earned.
    (c) Seniority refers to the time accrued in an extra good time 
earning status. Twelve months of ``seniority'' automatically cause the 
earning rate to increase from three days per month to five days per 
month and seniority is then vested.
    (d) Earning status refers to the status of an inmate who is in an 
assignment or employment which accrues extra good time.



Sec. 523.2  Good time credit for violators.

    (a) An inmate conditionally released from imprisonment either by 
parole or mandatory release can earn statutory good time, upon being 
returned to custody for violation of supervised release, based on the 
number of days remaining to be served on the sentence. The rate of 
statutory good time for the violator term is computed at the rate of the 
total sentence from which released.
    (b) An inmate whose special parole term is revoked can earn 
statutory good time based on the number of days remaining to be served 
on the special parole violator term. The rate of statutory good time for 
the violator term is computed at the rate of the initial special parole 
term plus the total sentence that was served prior to the special parole 
term and to which the special parole term was attached.
    (c) Once an inmate is conditionally released from imprisonment, 
either by parole, including special parole, or mandatory release, the 
good time earned (extra or statutory) 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 inmate may be required 
to serve for violation of parole or mandatory release.



                       Subpart B--Extra Good Time



Sec. 523.10  Purpose and scope.

    (a) The Bureau of Prisons awards extra good time credit for 
performing exceptionally meritorious service, or for performing duties 
of outstanding importance or for employment in an industry or camp. An 
inmate may earn only one type of extra good time award at a time (e.g., 
an inmate earning industrial or camp good time is not eligible for 
meritorious good time), except that a lump sum award as provided in 
Sec. 523.16 may be given in addition to another extra good time award. 
The Warden or the Discipline Hearing Officer may not forfeit or withhold 
extra good time. The Warden may disallow or terminate the awarding of 
any type of extra good time (except lump sum awards), but only in a 
nondisciplinary

[[Page 492]]

context and only upon recommendation of staff. The Discipline Hearing 
Officer may disallow or terminate the awarding of any type of extra good 
time (except lump sum awards), as a disciplinary sanction. Once an 
awarding of meritorious good time has been terminated, the Warden must 
approve a new staff recommendation in order for the award to recommence. 
A ``disallowance'' means that an inmate does not receive an extra good 
time award for only one calendar month. Unless other action is taken, 
the award resumes the following calendar month. A ``disallowance'' must 
be for the entire amount of extra good time for that calendar month. 
There may be no partial disallowance. A decision to disallow or 
terminate extra good time may not be suspended pending future 
consideration. A retroactive award of meritorious good time may not 
include a month in which extra good time has been disallowed or 
terminated.
    (b) The provisions of this rule do not apply to inmates sentenced 
under the Sentencing Reform Act provisions of the Comprehensive Crime 
Control Act of 1984. This means that inmates sentenced under the 
Sentencing Reform Act provisions for offenses committed on or after 
November 1, 1987 are not eligible for either statutory or extra good 
time, but may be considered for a maximum of 54 days of good conduct 
time credit per year (see 18 U.S.C. 3624(b)).



Sec. 523.11  Meritorious good time.

    (a) Staff are responsible for recommending meritorious good time 
based upon work performance. Each recommendation must include a 
justification which clearly shows that the work being performed is of an 
exceptionally meritorious nature or is of outstanding importance in 
connection with institutional operations. Work performance and the 
importance of the work performed are the only criteria for awarding 
meritorious good time.
    (b) A retroactive award of meritorious good time is ordinarily 
limited to three months, excluding the month in which the recommendation 
is made. A retroactive award in excess of three months requires the 
approval of the Warden or designee (may not be delegated below the level 
of Associate Warden). Staff are to include with any recommendation for 
an inmate to receive a retroactive award of meritorious good time, a 
written statement confirming the inmate's eligibility for the 
retroactive award.
    (c) Meritorious good time continues uninterrupted regardless of work 
assignment changes unless the Warden or the Discipline Hearing Officer 
takes specific action to terminate or disallow the award.



Sec. 523.12  Work/study release good time.

    Extra good time for an inmate in work or study release programs is 
awarded automatically, beginning on the date the inmate is assigned to 
the program and continuing without further approval as long as the 
inmate is participating in the program, unless the award is disallowed.



Sec. 523.13  Community corrections center good time.

    Extra good time for an inmate in a Federal or contract Community 
Corrections Center is awarded automatically, beginning on arrival at the 
facility and continuing as long as the inmate is confined at the Center, 
unless the award is disallowed.



Sec. 523.14  Industrial good time.

    Extra good time for an inmate employed in Federal Prison Industries, 
Inc., is automatically awarded, beginning on the first day of such 
employment, and continuing as long as the inmate is employed by Federal 
Prison Industries, unless the award is disallowed. An inmate on a 
waiting list for employment in Federal Prison Industries is not awarded 
industrial good time until actually employed.



Sec. 523.15  Camp or farm good time.

    An inmate assigned to a farm or camp is automatically awarded extra 
good time, beginning on the date of commitment to the camp or farm, and 
continuing as long as the inmate is assigned to the farm or camp, unless 
the award is disallowed.



Sec. 523.16  Lump sum awards.

    Any staff member may recommend to the Warden the approval of an 
inmate for a lump sum award of extra good

[[Page 493]]

time. Such recommendations must be for an exceptional act or service 
that is not part of a regularly assigned duty. The Warden may make lump 
sum awards of extra good time not to exceed thirty days. If the 
recommendation is for an award in excess of thirty days and the Warden 
concurs, the Warden shall refer the recommendation to the Regional 
Director who may approve the award. No award may be approved which would 
exceed the maximum number of days allowed under 18 U.S.C. 4162. The 
actual length of time served on the sentence, to the date that the 
exceptional act or service terminated, is the basis on which the maximum 
amount possible to award is calculated. No seniority is accrued for such 
awards. Staff may recommend lump sum awards of extra good time for the 
following reasons:
    (a) An act of heroism;
    (b) Voluntary acceptance and satisfactory performance of an 
unusually hazardous assignment;
    (c) An act which protects the lives of staff or inmates or the 
property of the United States; this is to be an act and not merely the 
providing of information in custodial or security matters;
    (d) A suggestion which results in substantial improvement of a 
program or operation, or which results in significant savings; or
    (e) Any other exceptional or outstanding service.



Sec. 523.17  Procedures.

    (a) Extra good time is awarded at a rate of three days per month 
during the first twelve months of seniority in an earning status and at 
the rate of five days per month thereafter. The first twelve months of 
seniority need not be based on a continuous period of twelve months. If 
the beginning or termination date of an extra good time award occurs 
after the first day of a month, a partial award of days is made.
    (b) An inmate may be awarded extra good time even though some or all 
of the inmate's statutory good time has been forfeited or withheld.
    (c) Parole and mandatory release violators may earn extra good time 
the same as other inmates. Once an inmate is conditionally released from 
imprisonment, either by parole, including special 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 inmate may be required to 
serve for violation of parole or mandatory release.
    (d) Staff working in the community have the same extra good time 
authority as the Warden when approving the award of good time for an 
inmate confined in a non-federal facility and may approve meritorious 
good time or lump sum awards in accordance with this rule upon 
recommendations made by a responsible person employed by the non-federal 
facility. The appropriate staff in the Regional Office may review all 
such awards if the Regional Director requires the review.
    (e) An inmate who is transferred remains in the earning status at 
time of transfer, unless the reason for transfer would otherwise have 
caused removal from an earning status, and provided the inmate's 
behavior is such while in transit that it does not justify removal. 
Where the receiving institution is a camp, farm, or community 
corrections center, the extra good time continues automatically upon the 
inmate's arrival. Where the receiving institution is other than a camp, 
farm, or community corrections center, the extra good time is terminated 
upon arrival, and staff at the receiving institution shall review each 
case to determine if the inmate should continue in meritorious good time 
earning status if not immediately employed in Federal Prison Industries 
or assigned to a work/study release program. If the inmate then is not 
continued in meritorious good time earning status, later awards must 
comply with procedures outlined in Sec. 523.11.
    (f) An inmate serving a life sentence may earn extra good time even 
though there is no mandatory release date from which to deduct the 
credit since the possibility exists that the sentence may be reduced or 
commuted to a definite term.
    (g) Extra good time is not automatically discontinued while an 
inmate is hospitalized, on furlough, out of the institution on a writ of 
habeas corpus, or

[[Page 494]]

removed under the Interstate Agreement on Detainers. Extra good time may 
be terminated or disallowed during such absences if the Warden or the 
Discipline Hearing Officer finds that the inmate's behavior warrants 
such action.
    (h) Extra good time earned by an inmate in a District of Columbia 
Department of Corrections facility is treated the same as if earned in a 
Bureau of Prisons institution, upon transfer to a Bureau institution.
    (i) An inmate committed under the provisions of 18 U.S.C. 3651 
(split sentence) may earn extra good time credits provided the sentence 
imposed is not under the provisions of 18 U.S.C. 5010 (b) or (c) (YCA). 
All extra good time and seniority earned is carried over to any 
subsequent probation violator sentence based on the original split 
sentence.
    (j) An inmate committed under the provisions of 18 U.S.C. 4205(c) 
may earn extra good time credits towards the final sentence that may be 
imposed. Such extra good time credits do not reduce the three months 
allowed for study. An inmate committed under the provisions of 18 U.S.C. 
4244, as amended effective October 12, 1984, may earn extra good time 
credits toward the final sentence that may be imposed. Such extra good 
time credits do not reduce the provisional sentence. Extra good time may 
continue during a commitment for examination of hospitalization and 
treatment under 18 U.S.C. 4245, as amended effective October 12, 1984.
    (k) Inmates committed under the provisions of 18 U.S.C. 4244, 4246-
47, 4252, 5010 (b), (c), (e), or 5037(c) as these sections were in 
effect prior to October 12, 1984, are not entitled to extra good time 
deductions. Inmates committed under the provisions of 18 U.S.C. 4241, 
4242, 4243, or 4246 as these sections were amended effective October 12, 
1984, are not entitled to extra good time deductions.
    (l) A pretrial detainee may not earn good time while in pretrial 
status. A pretrial detainee, however, may be recommended for good time 
credit. This recommendation shall be considered in the event that the 
pretrial detainee is later sentenced on the crime for which he or she 
was in pretrial status.
    (m) An inmate committed for civil contempt is not entitled to extra 
good time deductions while serving the civil contempt sentence.
    (n) A military or Coast Guard inmate may earn extra good time. Extra 
good time earned in Federal Prison Industries in a military or Coast 
Guard installation is treated the same as if earned in Federal Prison 
Industries in the Bureau of Prisons. Other forms of military or Coast 
Guard extra good time, such as Army Abatement time, are fully credited, 
but no seniority is allowed.
    (o) American citizens who are serving sentences in foreign countries 
and who are subsequently returned to this country under the provisions 
of 18 U.S.C. chapter 306 (Pub. L. 95-144) may have earned work, labor, 
or program time credits in the foreign country similar to extra good 
time earned under 18 U.S.C. 4162. Such foreign ``extra good time'' 
credits shall be treated as if awarded under Sec. 523.16, Lump Sum 
Awards, with any future lump sum award consideration in this country 
calculated on the basis of time served in custody of the Bureau of 
Prisons. After return to this country an inmate may earn extra good time 
at the three-day rate and advance to the five-day rate after one year of 
seniority is accrued. No seniority is accrued for foreign ``extra good 
time'' credits.
    (p) An inmate in extra good time earning status may not waive or 
refuse extra good time credits.
    (q) Once extra good time is awarded, it becomes vested and may not 
be forfeited or withheld, or retroactively terminated or disallowed.



                      Subpart C--Good Conduct Time



Sec. 523.20  Good conduct time.

    Pursuant to 18 U.S.C. 3624(b), as in effect for offenses committed 
on or after November 1, 1987 but before April 26, 1996, an inmate earns 
54 days credit toward service of sentence (good conduct time credit) for 
each year served. This amount is prorated when the time served by the 
inmate for the sentence during the year is less than a full year.

[[Page 495]]

The amount to be awarded is also subject to disciplinary disallowance 
(see tables 3 through 6 in Sec. 541.13 of this chapter). Pursuant to 18 
U.S.C. 3624(b), as in effect for offenses committed on or after April 
26, 1996, the Bureau shall consider whether the inmate has earned, or is 
making satisfactory progress (see Sec. 544.73(b) of this chapter) toward 
earning a General Educational Development (GED) credential before 
awarding good conduct time credit.
    (a) When considering good conduct time for an inmate serving a 
sentence for an offense committed on or after April 26, 1996, the Bureau 
shall award:
    (1) 54 days credit for each year served (prorated when the time 
served by the inmate for the sentence during the year is less than a 
full year) if the inmate has earned or is making satisfactory progress 
toward earning a GED credential or high school diploma; or
    (2) 42 days credit for each year served (prorated when the time 
served by the inmate for the sentence during the year is less than a 
full year) if the inmate has not earned or is not making satisfactory 
progress toward earning a GED credential or high school diploma.
    (b) The amount of good conduct time awarded for the year is also 
subject to disciplinary disallowance (see tables 3 through 6 in 
Sec. 541.13 of this chapter).

[62 FR 50787, Sept. 26, 1997]



      Subpart D--District of Columbia Educational Good Time Credit

    Source: 67 FR 48386, July 24, 2002, unless otherwise noted.



Sec. 523.30  What is educational good time sentence credit?

    Educational good time sentence credit is authorized by District of 
Columbia (D.C.) Code Sec. 24-221.01, and reduces the amount of time to 
serve under a term of imprisonment. In these rules, we refer to D.C. 
educational good time as ``DCEGT.''



Sec. 523.31  Who is eligible for DCEGT?

    You are eligible for DCEGT if:
    (a) You are incarcerated in a Bureau of Prisons' (Bureau) 
institution or a Bureau contract facility;
    (b) You are serving a term of imprisonment for a D.C. criminal code 
violation committed before August 5, 2000;
    (c) Your Unit Team approved or designed a plan for you to complete a 
program designated by the Bureau as eligible for DCEGT;
    (d) The Supervisor of Education (SOE) finds that you successfully 
completed a Bureau-designated education program on or after August 5, 
1997; and
    (e) You did not violate prison discipline rules while enrolled in 
the program (see Sec. 523.33).



Sec. 523.32  How much DCEGT can I earn?

    (a) You can earn 5 days DCEGT for each month you were enrolled in a 
designated program, up to the maximum amount designated by the Bureau 
for the type of program successfully completed.
    (b) You are limited to 5 days per month DCEGT, even if enrolled in 
more than one designated program.
    (c) Enrollment in a designated program for any portion of a calender 
month earns one full month's worth of DCEGT.
    (d) You are not eligible for DCEGT which, if awarded, would make you 
past due for release.
    (e) Once appropriately awarded, DCEGT vests, and cannot be 
forfeited.



Sec. 523.33  How is eligibility for DCEGT limited?

    Eligibility for DCEGT is limited in two ways:
    (a) If you violate prison rules, you are not eligible for one 
month's worth of DCEGT for each disciplinary incident committed during 
the program enrollment period. A Discipline Hearing Officer, or other 
staff using procedures similar to those in 28 CFR 541.17, must determine 
that you committed a prohibited act.
    (b) The nature of your offense may limit your eligibility for DCEGT 
under D.C. Code 24-221.01b or 24-221.06.



Sec. 523.34  How can I challenge DCEGT award decisions?

    You can use the Administrative Remedy Program, 28 CFR 542.10 through 
542.19, to challenge Bureau of Prisons decisions regarding DCEGT.

[[Page 496]]



PART 524--CLASSIFICATION OF INMATES--Table of Contents




Subpart A [Reserved]

         Subpart B--Classification and Program Review of Inmates

Sec.
524.10  Purpose and scope.
524.11  Classification team.
524.12  Initial classification and program reviews.
524.13  Effect of a detainer on an inmate's program.
524.14  Unscheduled reviews.
524.15  Appeals procedure.
524.16  Study and observation cases.
524.17  Pretrial inmates.

             Subpart C--Youth Corrections Act (YCA) Programs

524.20  Purpose and scope.
524.21  Definitions.
524.22  YCA program.
524.23  Program reviews.
524.24  Parole hearings.
524.25  U.S. Parole Commission.

             Subpart D--Intensive Confinement Center Program

524.30  Purpose and scope.
524.31  Eligibility and placement.
524.32  Institution-based component procedures.
524.33  Program failure.

                       Subpart E--Progress Reports

524.40  Purpose and scope.
524.41  Types of progress reports.
524.42  Content of progress reports.
524.43  Inmate's access to progress reports.

            Subpart F--Central Inmate Monitoring (CIM) System

524.70  Purpose and scope.
524.71  Responsibility.
524.72  CIM assignment categories.
524.73  Classification procedures.
524.74  Activities clearance.
524.75  Periodic review.
524.76  Appeals of CIM classification.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624, 
4001, 4042, 4046, 4081, 4082 (Repealed in part as to offenses committed 
on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as 
to offenses committed after that date), 5039; 21 U.S.C. 848; 28 U.S.C. 
509, 510; Title V, Pub. L. 91-452, 84 Stat. 933 (18 U.S.C. Chapter 223); 
28 CFR 0.95-0.99.

Subpart A [Reserved]



         Subpart B--Classification and Program Review of Inmates

    Source: 56 FR 30676, July 3, 1991, unless otherwise noted.



Sec. 524.10  Purpose and scope.

    It is the policy of the Bureau of Prisons to classify each newly 
committed inmate within four weeks of the inmate's arrival at the 
institution designated for service of sentence and to conduct subsequent 
program reviews for each inmate at regular intervals. The Warden shall 
establish procedures to ensure that a newly committed inmate is promptly 
assigned to a classification team.



Sec. 524.11  Classification team.

    The Warden shall ensure that each department within the institution 
has the opportunity to contribute to the classification process.
    (a) At a minimum, each classification (unit) team shall include the 
unit manager, a case manager, and a counselor. An education advisor and 
a psychology services representative are also ordinarily members of the 
team. Where the institution does not have unit management, the team 
shall include a case manager, counselor, and one other staff member.
    (b) Each member of the classification team shall individually 
interview the newly arrived inmate within five working days of the 
inmate's assignment to that team.

[56 FR 30676, July 3, 1991, as amended at 57 FR 34662, Aug. 5, 1992]



Sec. 524.12  Initial classification and program reviews.

    (a) The Warden or designee shall ensure that each newly committed 
inmate is scheduled for initial classification within four weeks of the 
inmate's arrival at the designated institution.
    (b) Staff shall conduct a program review for each inmate at least 
once every 180 days. When an inmate is within twelve months of the 
projected release date, a program review shall be conducted at least 
once every 90 days.
    (c) Staff shall notify an inmate at least 48 hours prior to that 
inmate's

[[Page 497]]

scheduled appearance before the classification team (whether for the 
initial classification or subsequent program review). An inmate may 
waive in writing the 48-hour notice requirement. The inmate is expected 
to attend the initial classification and all subsequent program reviews. 
If the inmate refuses to appear at a scheduled meeting, staff shall 
document on the Program Review Report the inmate's refusal and, if 
known, the reasons for refusal. A copy of this report is to be forwarded 
to the inmate. The inmate is responsible for becoming aware of, and will 
be held accountable for, the classification team's actions.
    (d) Staff shall complete a Program Review Report at the inmate's 
initial classification. This report ordinarily includes information on 
the apparent needs of the inmate and shall offer a correctional program 
designed to meet those needs. The Program Review Report is to be signed 
by the unit manager and the inmate, and a copy is to be provided to the 
inmate. The correctional programs will be stated in measurable terms, 
establishing time limits, performance levels, and specific, expected 
program accomplishments. Staff will document progress and any program 
changes at subsequent reviews in the same manner in a new Program Review 
Report. Each sentenced inmate who is physically and mentally able is 
assigned to a work program at the time of initial classification. The 
inmate may choose not to participate in the offered program, unless the 
program is a work assignment, or mandated by Bureau policy, by court 
order, or by statute.
    (e) The inmate is to be provided with, and must sign for, a copy of 
the Program Review Report. If the inmate refuses to sign for a copy of 
this report, staff witnessing the refusal shall place a signed statement 
to this effect on the report. Staff shall place a copy of the Program 
Review Report in the inmate's central file.

[56 FR 30676, July 3, 1991, as amended at 60 FR 33320, June 27, 1995; 61 
FR 47795, Sept. 10, 1996; 64 FR 9429, Feb. 25, 1999]



Sec. 524.13  Effect of a detainer on an inmate's program.

    The existence of a detainer, by itself, ordinarily does not affect 
the inmate's program. An exception may occur where the program is 
contingent on a specific issue (for example, custody) which is affected 
by the detainer.



Sec. 524.14  Unscheduled reviews.

    Staff shall establish a procedure to ensure that inmates are 
provided program reviews as required by this rule. Upon request of 
either the inmate or staff, and with the concurrence of the team 
chairperson, an advanced program review may occur.

[56 FR 30676, July 3, 1991, as amended at 60 FR 33321, June 27, 1995]



Sec. 524.15  Appeals procedure.

    An inmate may appeal, through the Administrative Remedy Program, a 
decision made at initial classification or at a program review.

[56 FR 30676, July 3, 1991, as amended at 61 FR 47795, Sept. 10, 1996]



Sec. 524.16  Study and observation cases.

    Inmates committed to the custody of the U.S. Attorney General for 
purposes of study and observation are excluded from the provisions of 
this rule.

[61 FR 47795, Sept. 10, 1996]



Sec. 524.17  Pretrial inmates.

    Additional provisions pertinent to pretrial inmates are contained in 
Sec. 551.107 of this chapter.

[61 FR 47795, Sept. 10, 1996]



             Subpart C--Youth Corrections Act (YCA) Programs

    Source: 58 FR 50808, Sept. 28, 1993, unless otherwise noted.



Sec. 524.20  Purpose and scope.

    This subpart establishes procedures for designation, classification, 
parole, and release of Youth Corrections Act (YCA) inmates. In keeping 
with court findings, and in accord with the repeal of 18 U.S.C. chapter 
402, sections 5011 and 5015(b), all offenders sentenced

[[Page 498]]

under the provisions of the YCA presently in custody, those retaken into 
custody as parole violators, and those yet to be committed (probation 
violators, appeal bond cases, etc.) may be transferred to or placed in 
adult institutions under the provisions of this policy.



Sec. 524.21  Definitions.

    (a) YCA inmate: An inmate sentenced under provision of the Youth 
Corrections Act who has not received an in-person ``no further benefit'' 
finding by his or her sentencing judge, and whose YCA sentence has not 
been completely absorbed by an adult federal sentence.
    (b) No further benefit: An in-person finding by the inmate's 
sentencing court that YCA treatment will not be of further benefit to 
the inmate. An inmate receiving such court finding is accordingly not 
considered to be a YCA inmate.



Sec. 524.22  YCA program.

    (a) Wardens are to ensure each committed youth offender is scheduled 
for a three-phase program plan which will include a classification 
phase, a treatment phase, and a pre-release phase. A program plan for 
each YCA inmate will be developed by the Unit Team as a part of the 
classification phase. The Warden may exempt a YCA inmate from program 
participation when individual circumstances warrant such exceptions. 
Such exceptions must be requested and acknowledged by the inmate, and 
the reason(s) for exemption must be documented in the inmate's central 
file.
    (1) Classification phase: The classification phase begins upon the 
inmate's arrival at the designated institution. It consists of 
evaluation, orientation, unit assignment, and concludes when the inmate 
has attended the initial classification (or transfer classification) 
meeting with the Unit Team. YCA inmates are to participate in the 
classification process prior to the development of their individual 
program plans. The YCA inmate is to have received a psychological 
screening prior to attending the initial classification meeting. YCA 
program plans will include specific goals relative to:
    (i) Behavior;
    (ii) Treatment/self improvement;
    (iii) Pre-release.
    (2) Treatment phase: YCA inmates are to be exposed to unit-based and 
community-based (if otherwise eligible) programs. Each YCA inmate shall 
be periodically reviewed during this phase. The treatment phase begins 
when the inmate attends the programs and activities described in the 
program plan which were established at the culmination of the 
classification phase. Each YCA inmate shall be assigned programs in 
accordance with the inmate's needs and the established program plan. The 
``program day'' shall consist of morning, afternoon, and evening time 
periods, during which the inmate shall be scheduled for treatment 
programs, work, and leisure-time activities. The inmate shall be 
expected to comply with the program plan. The inmate's participation in 
a treatment program is required, not optional. An inmate's failure to 
participate may result in disciplinary action.
    (3) Pre-release phase: The YCA inmate shall enter the pre-release 
phase approximately 9 months prior to release. The pre-release phase is 
ordinarily divided into two segments: participation in the institution 
pre-release program and a stay at a Community Corrections Center (CCC), 
if otherwise eligible. Institution pre-release programs shall focus on 
the types of problems the inmate may face upon return to the community, 
such as re-establishing family relationships, managing a household, 
finding and keeping a job, and developing a successful life style. In 
addition, the pre-release phase may include visits from prospective 
employers.
    (b) Staff shall establish incentives to motivate YCA inmates and to 
encourage program completion. Examples of such incentives which may be 
used are special recognition, awards, and ``vacation days''.
    (c) The program plan, and the YCA inmate's participation in 
fulfilling goals contained within the plan, are fundamental factors 
considered by the U.S. Parole Commission in determining when a YCA 
inmate should be paroled. Given the importance and joint use of the YCA 
programming process, the current program plan and a summary of the 
inmate's progress in

[[Page 499]]

meeting established treatment goals must be made available for review 
and discussion by the Commission at each parole hearing. In addition, a 
staff member familiar with the YCA inmate's case should be present at 
any parole hearing to clarify any questions concerning the plan or the 
inmate's progress in completing the plan.
    (d) Upon full and satisfactory completion of the program plan, the 
Warden will notify the U.S. Parole Commission and make a specific 
recommendation for release.



Sec. 524.23  Program reviews.

    Staff shall conduct periodic reviews of the inmate's program plan 
and shall modify the plan in accordance with the level of progress 
shown. Each YCA inmate shall be afforded a review at least once each 90 
days, and shall have a formal progress report prepared every year 
summarizing the inmate's level of achievement. If the inmate's program 
plan needs to be modified in light of the progress made, or the lack 
thereof, appropriate changes will be made and a revised program plan 
will be developed and documented. Staff shall ordinarily notify the 
inmate of the 90-day review at least 48 hours prior to the inmate's 
scheduled appearance before the Unit Team. An inmate may waive in 
writing the requirement of 48 hours notice.



Sec. 524.24  Parole hearings.

    All YCA inmates have been extended the parole procedures present in 
Watts vs. Hadden. YCA inmates shall be scheduled for interim hearings on 
the following schedules:
    (a) For those inmates serving YCA sentences of less than 7 years, an 
in-person hearing will be scheduled every 9 months.
    (b) For those inmates serving YCA sentences of 7 years or more, an 
in-person hearing will be scheduled every 12 months.
    (c) Upon notification of a response to treatment/certified 
completion of a program plan by the Bureau of Prisons, the Parole 
Commission will schedule the inmate for an in-person hearing on the next 
available docket, unless the inmate is paroled on the record. If a 
hearing is held and the inmate is denied parole, the next hearing shall 
be scheduled in accordance with the schedule outlined in paragraphs (a) 
and (b) of this section.
    (d) The hearings mentioned in paragraphs (a) and (b) of this section 
are not required for inmates who have been continued to expiration or 
mandatory parole who have less than one year remaining to serve or to a 
CCC placement date.



Sec. 524.25  U.S. Parole Commission.

    The U.S. Parole Commission is the releasing authority for all YCA 
inmates except for full term and conditional releases. The Commission 
shall be provided a progress report:
    (a) Upon request of the Commission,
    (b) Prior to any interim hearing or pre-release record review, or
    (c) Upon determination by the inmate's Unit Team, with concurrence 
by the Warden, that the inmate has completed his or her program plan.



             Subpart D--Intensive Confinement Center Program

    Source: 61 FR 18658, Apr. 26, 1996, unless otherwise noted.



Sec. 524.30  Purpose and scope.

    The intensive confinement center program is a specialized program 
combining features of a military boot camp with the traditional 
correctional values of the Bureau of Prisons, followed by extended 
participation in community-based programs. The goal of this program is 
to promote personal development, self-control, and discipline.



Sec. 524.31  Eligibility and placement.

    (a) Eligibility for consideration of placement in the intensive 
confinement center program requires that the inmate is:
    (1)(i) Serving a sentence of more than 12, but not more than 30 
months (see 18 U.S.C. 4046), or
    (ii) Serving a sentence of more than 30, but not more than 60 
months, and is within 24 months of a projected release date.
    (2) Serving his or her first period of incarceration or has a minor 
history of prior incarcerations;

[[Page 500]]

    (3) Is not serving a term of imprisonment for a crime of violence or 
a felony offense:
    (i) That has as an element, the actual, attempted, or threatened use 
of physical force against the person or property of another, or
    (ii) That involved the carrying, possession, or use of a firearm or 
other dangerous weapon or explosives (including any explosive material 
or explosive device), or
    (iii) That by its nature or conduct, presents a serious potential 
risk of physical force against the person or property of another, or
    (iv) That by its nature or conduct involves sexual abuse offenses 
committed upon children.
    (4) Appropriate for housing in minimum security;
    (5) Physically and mentally capable of participating in the program;
    (6) A volunteer.
    (b) Placement in the intensive confinement center program is to be 
made by Bureau staff in accordance with sound correctional judgment and 
the availability of Bureau resources.

[61 FR 18658, Apr. 26, 1996, as amended at 62 FR 53691, Oct. 15, 1997]



Sec. 524.32  Institution-based component procedures.

    (a) An eligible inmate who volunteers for participation in an 
institution-based intensive confinement center program must agree to 
forego opportunities which may be otherwise available to inmates in 
Bureau institutions. Opportunities that may be affected include, but are 
not limited to, visitation, telephone use, legal research time, 
religious practices, commissary, smoking, and grooming preferences.
    (b) The institution-based component of the intensive confinement 
center program ordinarily is six months in duration.
    (c) Disciplinary procedures to be followed in the institution-based 
intensive confinement center program are set forth in subpart B of part 
541 of this chapter.
    (d)(1) An inmate who successfully completes the institution-based 
component of the program ordinarily is eligible to serve the remainder 
of the sentence in a community-based program.
    (2) An inmate eligible for participation in the program under 
Sec. 524.31(a)(1)(i) who successfully completes the institution-based 
component, who maintains successful participation in a community-based 
program, and has a period of supervised release to follow is eligible 
for up to a six month reduction in sentence.
    (3) An inmate who completes or has completed the institution-based 
component of an intensive confinement center pilot program, who 
maintains successful participation in a community-based program, and has 
a period of supervised release to follow is eligible for up to a six 
month reduction in sentence if staff confirm that the inmate has met the 
requirements of Sec. 524.31(a)(1)(i), (2), (3) and (4).



Sec. 524.33  Program failure.

    An inmate who fails to complete the institution-based component or 
who subsequently fails participation in a community-based program may 
forfeit his or her further involvement in the program.



                       Subpart E--Progress Reports

    Source: 55 FR 49977, Dec. 3, 1990, unless otherwise noted.



Sec. 524.40  Purpose and scope.

    The Bureau of Prisons maintains current information on each inmate 
through progress reports completed by staff. The progress report 
summarizes information relating to the inmate's adjustment during 
confinement, program participation, and readiness for release.



Sec. 524.41  Types of progress reports.

    The Bureau of Prisons prepares the following types of progress 
reports.
    (a) Initial Hearing--prepared for an inmate's initial parole hearing 
when progress has not been summarized within the previous 180 days.
    (b) Statutory Interim/Two-Thirds Review--prepared for a parole 
hearing conducted 18 or 24 months following a hearing at which no 
effective parole date was established, or for a two-thirds review (see 
28 CFR 2.53) unless the inmate has waived the parole hearing.

[[Page 501]]

    (c) Pre-Release--
    (1) Record Review--prepared for and mailed to the appropriate Parole 
Commission office at least eight months prior to the inmate's 
presumptive parole date.
    (2) Final--prepared at least 90 days prior to the release of an 
offender to a term of supervision.
    (d) Transfer Report--prepared on an inmate recommended and/or 
approved for transfer to a community corrections center (CCC) or to 
another institution and whose progress has not been summarized within 
the previous 180 days.
    (e) Triennial report--prepared on each designated inmate at least 
once every 36 months if not previously generated for another reason 
required by this section.
    (f) Other--prepared for any reason other than those previously 
stated in this section. The reason (e.g., court request, clemency 
review) is specified in the report.

[55 FR 49977, Dec. 3, 1990, as amended at 59 FR 6856, Feb. 11, 1994; 60 
FR 10722, Feb. 27, 1995; 63 FR 7604, Feb. 13, 1998]



Sec. 524.42  Content of progress reports.

    Staff shall include the following in each progress report:
    (a) Institution (full name) and Date;
    (b) Type of Progress Report;
    (c) Committed name;
    (d) Registration number;
    (e) Age;
    (f) Present security and custody level;
    (g) Offense(s) for which committed;
    (h) Sentence;
    (i) Date sentence began;
    (j) Time served to date, including jail time credit;
    (k) Good conduct time/Extra good time earned;
    (l) Statutory good time withheld or forfeited; Disallowed good 
conduct time;
    (m) Projected release date;
    (n) Most recent Parole Commission action, including any special 
conditions or requirements (if applicable);
    (o) Detainers and pending charges on file;
    (p) Institutional adjustment; this ordinarily includes information 
on the inmate's:
    (1) Program plans;
    (2) Work assignments and skills acquired;
    (3) Educational/vocational participation;
    (4) Counseling programs;
    (5) Incident reports;
    (6) Institutional movement;
    (7) Physical and mental health, including any significant mental or 
physical health problems, and any corrective action taken; and
    (8) Financial responsibility.
    (q) Release planning:
    (1) Where appropriate, staff shall request that the inmate provide a 
specific release plan;
    (2) Staff shall identify available release resources (including CCC) 
and any particular problem that may be present in release planning.

[59 FR 6857, Feb. 11, 1994]



Sec. 524.43  Inmate's access to progress reports.

    Upon request, an inmate may read and receive a copy of any progress 
report retained in the inmate's central file which had been prepared on 
that inmate after October 15, 1974. Staff shall allow the inmate the 
opportunity to read a newly prepared progress report and shall request 
the inmate sign and date the report. If the inmate refuses to do so, 
staff witnessing the refusal shall document this refusal on the report. 
Staff shall then offer to provide a copy of the progress report to the 
inmate.

[59 FR 6857, Feb. 11, 1994]



            Subpart F--Central Inmate Monitoring (CIM) System

    Source: 61 FR 40143, July 31, 1996, unless otherwise noted.



Sec. 524.70  Purpose and scope.

    The Bureau of Prisons monitors and controls the transfer, temporary 
release (e.g., on writ), and community activities of certain inmates who 
present special needs for management. Such inmates, known as central 
inmate monitoring (CIM) cases, require a higher level of review which 
may include Central Office and/or Regional Office clearance for 
transfers, temporary releases,

[[Page 502]]

or community activities. This monitoring is not to preclude a CIM case 
from such activities, when the inmate is otherwise eligible, but rather 
is to provide protection to all concerned and to contribute to the safe 
and orderly operation of federal institutions.



Sec. 524.71  Responsibility.

    Authority for actions relative to the CIM system is delegated to the 
Assistant Director, Correctional Programs Division, to Regional 
Directors, and to Wardens. The Assistant Director, Correctional Programs 
Division, and Regional Directors shall assign a person responsible for 
coordinating CIM activities. The Case Management Coordinator (CMC) shall 
provide oversight and coordination of CIM activities at the 
institutional level, and the Community Corrections Manager shall assume 
these responsibilities for contract facilities.



Sec. 524.72  CIM assignment categories.

    CIM cases are classified according to the following assignments:
    (a) Witness Security cases. Individuals who agree to cooperate with 
law enforcement, judicial, or correctional authorities, frequently place 
their lives or safety in jeopardy by being a witness or intended witness 
against persons or groups involved in illegal activities. Accordingly, 
procedures have been developed to help ensure the safety of these 
individuals. There are two types of Witness Security cases: Department 
of Justice (authorized by the Attorney General under title V of Public 
Law 91-452, 84 Stat. 933); and Bureau of Prisons Witness Security cases 
(authorized by the Assistant Director, Correctional Programs Division).
    (b) Threats to government officials. Inmates who have made threats 
to government officials or who have been identified, in writing, by the 
United States Secret Service as requiring special surveillance.
    (c) Broad publicity. Inmates who have received widespread publicity 
as a result of their criminal activity or notoriety as public figures.
    (d) Disruptive group. Inmates who belong to or are closely 
affiliated with groups (e.g., prison gangs), which have a history of 
disrupting operations and security in either state or federal penal 
(which includes correctional and detention facilities) institutions. 
This assignment also includes those persons who may require separation 
from a specific disruptive group.
    (e) State prisoners. Inmates, other than Witness Security cases, who 
have been accepted into the Bureau of Prisons for service of their state 
sentences. This assignment includes cooperating state witnesses and 
regular state boarders.
    (f) Separation. Inmates who may not be confined in the same 
institution (unless the institution has the ability to prevent any 
physical contact between the separatees) with other specified 
individuals who are presently housed in federal custody or who may come 
into federal custody in the future. Factors to consider in classifying 
an individual to this assignment include, but are not limited to, 
testimony provided by or about an individual (in open court, to a grand 
jury, etc.), and whether the inmate has exhibited aggressive or 
intimidating behavior towards other specific individuals, either in the 
community or within the institution. This assignment also includes those 
inmates who have provided authorities with information concerning the 
unauthorized or illegal activities of others. This assignment may also 
include inmates from whom there is no identifiable threat, but who are 
to be separated from others at the request of the Federal Judiciary or 
U.S. Attorneys.
    (g) Special supervision. Inmates who require special management 
attention, but who do not ordinarily warrant assignment in paragraphs 
(a) through (f) of this section. For example, this assignment may 
include an inmate with a background in law enforcement or an inmate who 
has been involved in a hostage situation. Others may include those who 
are members of a terrorist group with a potential for violence.



Sec. 524.73  Classification procedures.

    (a) Initial assignment. Except as provided for in paragraphs (a) (1) 
through (4) of this section, an inmate (including pretrial inmates) may 
be classified as a CIM case at any time by a Community Corrections 
Manager or by appropriate

[[Page 503]]

staff at the Central Office, Regional Office, or institution. This 
initial classification is effective upon documentation in the inmate's 
record.
    (1) Witness Security cases. Witness Security cases are designated by 
the Central Office only. An inmate's participation in the Department of 
Justice Witness Security Program is voluntary. A commitment interview 
and an admission and orientation interview are to be conducted with the 
Witness Security inmate to ensure that the inmate understands the 
conditions of confinement within the Bureau of Prisons. Central Office 
classification of an individual as a Witness Security case, under either 
the Department of Justice or Bureau of Prisons, does not require 
additional review, and overrides any other CIM assignment.
    (2) State prisoners. Appropriate staff in the Central Office or 
Regional Office designate state prisoners accepted into the Bureau of 
Prisons from state or territorial jurisdictions. All state prisoners 
while solely in service of the state sentence are automatically included 
in the CIM system to facilitate designations, transfers, court 
appearances, and other movements.
    (3) Special supervision. Placement in this assignment may be made 
only upon the authorization of a Regional Director or the Assistant 
Director, Correctional Programs Division.
    (4) Recommitted offenders. An inmate who is recommitted to federal 
custody, who at the time of release was classified as a CIM case, 
retains this classification pending a review of the CIM status in 
accordance with paragraph (c) of this section.
    (b) Notification. The case manager shall ensure that the affected 
inmate is notified in writing as promptly as possible of the 
classification and the basis for it. Witness Security cases will be 
notified through a commitment interview. The notice of the basis may be 
limited in the interest of security or safety. For example, in 
separation cases under Sec. 524.72, notice will not include the names of 
those from whom the inmate must be separated. The inmate shall sign for 
and receive a copy of the notification form. If the inmate refuses to 
sign the notification form, staff witnessing the refusal shall indicate 
this fact on the notification form and then sign the form. Notification 
is not required for pretrial inmates. Any subsequent modification of a 
CIM assignment or removal from the CIM system requires separate 
notification to the inmate.
    (c) Initial review. A classification may be made at any level to 
achieve the immediate effect of requiring prior clearance for an 
inmate's transfer, temporary release, or participation in community 
activities. Except for Central Office or Regional Office classification 
of an individual as a state prisoner in sole service of the state 
sentence or for classification of pretrial inmates made by designated 
staff at the institution, a review by designated staff (ordinarily 
within 60 days of notification to the inmate) is required to determine 
whether a sound basis exists for the classification. Staff making the 
initial classification shall forward to the reviewing authority complete 
information regarding the inmate's classification. An inmate not 
notified of a change in the classification by the reviewing authority 
within 60 days from the date of the initial notification may consider 
the CIM classification final. Reviewing authorities for CIM 
classification are:
    (1) Central Office Inmate Monitoring Section-- reviews 
classification decisions for all future separation assignments 
(including recommitments) for Witness Security cases and for any 
combination of assignments involving Witness Security cases.
    (2) Regional Office-- reviews CIM classification decisions for 
Disruptive Group, Broad Publicity, Threat to Government Officials, 
Special Supervision, State Prisoners not in sole service of state 
sentence and initial multiple assignments except Witness Security Cases.
    (3) Warden, or Designee-- reviews CIM classification decisions for 
all separation assignments.
    (d) Removal. (1) Because participation in the Department of Justice 
Witness Security Program is voluntary, such participants may request 
removal from this assignment at any time. Such request shall be 
forwarded to the Central Office Inmate Monitoring Section. Actual 
removal of the CIM assignment

[[Page 504]]

will not occur until after approval from the Department of Justice is 
received.
    (2) The reviewing authority is responsible for determining if 
removal or modification of any CIM classification other than a 
Department of Justice Witness Security case is appropriate. The inmate 
retains the CIM classification pending a decision by the reviewing 
authority.
    (3) When an inmate is removed for any reason from a CIM 
classification (for example, because the reviewing authority either 
disapproves the CIM classification or approves removal of a CIM 
classification based on new information), the appropriate staff member 
shall ensure that the relevant portions of the inmate central file are 
either removed or, when part of a larger document, are amended to 
clearly reflect removal of the CIM assignment. Staff shall notify the 
inmate of the decision and document any change in the inmate's record, 
and supportive documentation and the written basis for removal are to be 
retained in the inmate privacy file.



Sec. 524.74  Activities clearance.

    (a) Except as provided for in paragraph (b) of this section, the 
Warden is the clearance authority on all transfers, temporary releases, 
community activities, and escorted trips.
    (b) Witness Security cases. Central Office Inmate Monitoring Section 
staff shall be the clearance authority on all transfers, temporary 
releases, community activities, and escorted trips for Witness Security 
cases, except in a medical emergency. In a medical emergency, the Warden 
may transfer a Witness Security case to a local hospital for emergency 
medical care without prior clearance.



Sec. 524.75  Periodic review.

    The Warden shall ensure that the status of an inmate's CIM 
assignment is considered at each program review. When staff believe that 
removal or modification of a CIM classification is appropriate, the 
institution's CMC and the appropriate reviewing authority must be 
notified. Only the reviewing authority shall determine if removal or 
modification of the CIM classification is appropriate.



Sec. 524.76  Appeals of CIM classification.

    An inmate may at any time appeal (through the Administrative Remedy 
Program) the inmate's classification as a CIM case. Inmates identified 
as Witness Security cases may choose to address their concerns directly 
to the Inmate Monitoring Section, Central Office, rather than use the 
Administrative Remedy Program.



PART 527--TRANSFERS--Table of Contents




Subparts A-C [Reserved]

 Subpart D--Transfer of Inmates to State Agents for Production on State 
                                  Writs

Sec.
527.30  Purpose and scope.
527.31  Procedures.

      Subpart E--Transfer of Offenders To or From Foreign Countries

527.40  Purpose and scope.
527.41  Definitions.
527.42  Limitations on transfer of offenders to foreign countries.
527.43  Notification of Bureau of Prisons inmates.
527.44  Transfer of Bureau of Prisons inmates to other countries.
527.45  Transfer of State prisoners to other countries.
527.46  Receiving United States citizens from other countries.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3565, 3569, 3621, 3622, 3624, 
4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or 
after November 1, 1987), 4100-4115, 4161-4166 (Repealed as to offenses 
committed on or after November 1, 1987), 4201-4218, 5003, 5006-5024 
(Repealed October 12, 1984 as to offenses committed after that date), 
5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

Subparts A-C [Reserved]



 Subpart D--Transfer of Inmates to State Agents for Production on State 
                                  Writs

    Source: 46 FR 34549, July 1, 1981, unless otherwise noted.



Sec. 527.30  Purpose and scope.

    The Bureau of Prisons will consider a request made on behalf of a 
state or local court that an inmate be transferred to the physical 
custody of state

[[Page 505]]

or local agents pursuant to state writ of habeas corpus ad prosequendum 
or ad testificandum. The Warden at the institution in which the inmate 
is confined is authorized to approve this transfer in accordance with 
the provisions of this rule.



Sec. 527.31  Procedures.

    (a) These procedures apply to state and federal inmates serving 
sentences in federal institutions, and shall be followed prior to an 
inmate's transfer to state or local agents other than through the 
Interstate Agreement on Detainers.
    (b) The Warden shall authorize transfer only when satisfied that the 
inmate's appearance is necessary, that state and local arrangements are 
satisfactory, that the safety or other interests of the inmate (such as 
an imminent parole hearing) are not seriously jeopardized, and that 
federal interests, which include those of the public, will not be 
interfered with, or harmed. Authorization may not be given where 
substantial concern exists over any of these considerations.
    (c) The request for transfer of custody to state agents shall be 
made by the prosecutor or other authority who acts on behalf of the 
court and shall be directed to the Warden of the institution in which 
the inmate is confined. The request shall be made by letter. The request 
shall indicate the need for appearance of the inmate, name of the court, 
nature of the action, date of the requested appearance, name and phone 
number of the state agency or other organization with responsibility for 
transporting the inmate, the name and location where the inmate will be 
confined during legal proceedings, and anticipated date of return. For 
civil cases, the request shall also indicate the reason that production 
on writ is necessary and some other alternative is not available. The 
applying authority shall provide either at the time of application or 
with the agent assuming custody, a statement signed by an authorized 
official that state or local officials with custody will provide for the 
safekeeping, custody, and care of the inmate, will assume full 
responsibility for that custody, and will return the inmate to Bureau of 
Prisons' custody promptly on conclusion of the inmate's appearance in 
the state or local proceedings for which the writ is issued.
    (d) A certified copy of the writ (one with the Seal of the Court) 
must be received at the institution prior to release of the inmate. 
Institution staff shall verify the authenticity of the writ.
    (e) Institution staff shall maintain contact with the state or local 
law enforcement agency with responsibility for transfer of the inmate to 
determine the exact date and time for transfer of custody. If the inmate 
is awaiting federal trial or has federal civil proceedings pending, 
staff must clear the transfer through the U.S. Attorney.
    (f) Institution staff shall determine from the state or local agency 
the names of the agents assuming custody. Staff must carefully examine 
the credentials of the agents assuming custody. In any doubtful case, 
verification should be sought.
    (g) Transfers in civil cases pursuant to a writ of habeas corpus ad 
testificandum must be cleared through both the Regional Counsel and the 
Warden. Transfer ordinarily shall be recommended only if the case is 
substantial, where testimony cannot be obtained through alternative 
means such as depositions or interrogatories, and where security 
arrangements permit. Postponement of the production until after the 
inmate's release from federal custody will always be considered, 
particularly if release is within twelve months.
    (h) Release of inmates classified as Central Inmate Monitoring Cases 
requires review with and/or coordination by appropriate authorities in 
accordance with the provisions of 28 CFR part 524, subpart F.

[46 FR 34549, July 1, 1981, as amended at 50 FR 40105, Oct. 1, 1985; 62 
FR 13826, Mar. 24, 1997]



      Subpart E--Transfer of Offenders To or From Foreign Countries

    Source: 46 FR 59507, Dec. 4, 1981, unless otherwise noted.

[[Page 506]]



Sec. 527.40  Purpose and scope.

    Public Law 95-144 (18 U.S.C. 4100 et seq.) authorizes the transfer 
of offenders to or from foreign countries, pursuant to the conditions of 
a current treaty which provides for such transfer. 18 U.S.C. 4102 
authorizes the Attorney General to act on behalf of the United States in 
regard to such treaties. In accordance with the provisions of 28 CFR 
0.96b the Attorney General has delegated to the Director of the Bureau 
of Prisons, and to designees of the Director, the authority to receive 
custody of, and to transfer to and from the United States, offenders in 
compliance with the conditions of the treaty.



Sec. 527.41  Definitions.

    For the purpose of this rule the following definitions apply.
    (a) Treaty nation. A country which has entered into a treaty with 
the United States on the Execution of Penal Sentences.
    (b) State prisoner. An inmate serving a sentence imposed in a court 
in one of the states of the United States, or in a territory or 
commonwealth of the United States.
    (c) Departure institution. The Bureau of Prisons institution to 
which an eligible inmate is finally transferred for return to his or her 
country of citizenship.
    (d) Admission institution. The Bureau of Prisons institution where a 
United States citizen-inmate is first received from a treaty nation.

[46 FR 59507, Dec. 4, 1981, as amended at 58 FR 47976, Sept. 13, 1993]



Sec. 527.42  Limitations on transfer of offenders to foreign countries.

    (a) An inmate while in custody for civil contempt may not be 
considered for return to the inmate's country of citizenship for service 
of the sentence or commitment imposed in a United States court.
    (b) An inmate with a committed fine may not be considered for return 
to the inmate's country of citizenship for service of a sentence imposed 
in a United States court without the permission of the court imposing 
the fine. When considered appropriate, the Warden may contact the 
sentencing court to request the court's permission to process the 
inmate's application for return to the inmate's country of citizenship.

[48 FR 2502, Jan. 19, 1983. Redesignated at 58 FR 47976, Sept. 13, 1993]



Sec. 527.43  Notification of Bureau of Prisons inmates.

    (a) The Warden shall ensure that the institution's admission and 
orientation program includes information on international offender 
transfers.
    (b) The case manager of an inmate who is a citizen of a treaty 
nation shall inform the inmate of the treaty and provide the inmate with 
an opportunity to inquire about transfer to the country of citizenship. 
The inmate is to be given an opportunity to indicate on an appropriate 
form whether he or she is interested in transfer to the country of 
citizenship.

[46 FR 59507, Dec. 4, 1981. Redesignated at 58 FR 47976, Sept. 13, 1993]



Sec. 527.44  Transfer of Bureau of Prisons inmates to other countries.

    (a) An inmate who is qualified for and desires to return to his or 
her country of citizenship for service of a sentence imposed in a United 
States Court shall indicate his or her interest by completing and 
signing the appropriate form and forwarding it to the Warden at the 
institution where the inmate is confined.
    (b) Upon verifying that the inmate is qualified for transfer, the 
Warden shall forward all relevant information, including a complete 
classification package, to the Assistant Director, Correctional Programs 
Division.
    (c) The Assistant Director, Correctional Programs Division, shall 
review the submitted material and forward it to the Office of 
Enforcement Operations (OEO), Criminal Division, International Prisoner 
Transfer Unit, Department of Justice, for review.
    (d) The Assistant Director, Correctional Programs Division, shall 
ensure that the inmate is advised of the decision of OEO.
    (1) When the Department of Justice determines that transfer is not 
appropriate, the Assistant Director, Correctional Programs Division, 
shall ensure

[[Page 507]]

that the inmate is advised of this determination and informed that the 
inmate may request the reason(s) for such action from OEO.
    (2) When the Department of Justice determines that transfer is 
appropriate, the Assistant Director, Correctional Programs Division, 
shall ensure that the inmate is advised of the determination and of the 
probability that the inmate will be given an interview with his or her 
nation's consular officials.
    (e) Upon notification from OEO of the treaty nation's decision in 
regard to the inmate's transfer, the Assistant Director, Correctional 
Programs Division, shall arrange for the inmate to be informed of that 
decision.
    (f) At an appropriate time subsequent to notification by the 
Department of Justice of an inmate's approval for transfer, the 
Assistant Director shall arrange for the inmate to be transferred to an 
appropriate departure institution.
    (g) Prior to the inmate's transfer from the departure institution, 
the inmate shall receive a verification hearing before a U.S. Magistrate 
Judge or U.S. District Court Judge to document the inmate's voluntary 
consent for transfer. Counsel is provided the inmate for purpose of this 
hearing. When requested, the Warden shall allow counsel to interview the 
inmate prior to the hearing.
    (h) Following the verification hearing, the Assistant Director, 
Correctional Programs Division shall arrange a schedule for delivery of 
the inmate to the authorities of the country of citizenship.
    (1) The Assistant Director shall advise the Warden of those 
arrangements.
    (2) The Warden shall arrange for the inmate to be transported to the 
foreign authorities. The Warden shall assure that required documentation 
(for example, proof of citizenship and appropriate travel documents) 
accompanies each inmate transported.

[46 FR 59507, Dec. 4, 1981. Redesignated and amended at 58 FR 47976, 
Sept. 13, 1993]



Sec. 527.45  Transfer of State prisoners to other countries.

    The Bureau of Prisons may assume custody of a state prisoner who has 
been approved for transfer to a treaty nation for the purpose of 
facilitating the transfer to the treaty nation. Once approved, the state 
is not required to contract for the placement of the prisoner in federal 
custody, nor to reimburse the United States for the cost of confinement 
(as would ordinarily be required by 18 U.S.C. 5003).

[46 FR 59507, Dec. 4, 1981. Redesignated at 58 FR 47976, Sept. 13, 1993]



Sec. 527.46  Receiving United States citizens from other countries.

    (a) Staff accepting custody of American inmates from a foreign 
authority shall ensure that the following documentation is available 
prior to accepting custody of the inmate:
    (1) A certified copy of the sentence handed down by an appropriate, 
competent judicial authority of the transferring country and any 
modifications thereof;
    (2) A statement (and a copy translated into English from the 
language of the country of origin if other than English), duly 
authenticated, detailing the offense for which the offender was 
convicted, the duration of the sentence, and the length of time already 
served by the inmate. Included should be statements of credits to which 
the offender is entitled, such as work done, good behavior, pre-trial 
confinement, etc.; and
    (3) Citizenship papers necessary for the inmate to enter the United 
States.
    (b) The Assistant Director, Correctional Programs Division, shall 
direct, in writing, specific staff, preferably staff who speak the 
language of the treaty nation, to escort the offender from the 
transporting country to the admission institution. The directive shall 
cite 28 CFR 0.96b as the authority to escort the offender. When the 
admission institution is not able to accept the inmate (for example, a 
female inmate escorted to a male institution), the Warden shall make 
appropriate housing requirements with a nearby jail.
    (c) As soon as practicable after the inmate's arrival at the 
admission institution, staff shall initiate the following actions:
    (1) Arrange for the inmate to receive a complete physical 
examination;

[[Page 508]]

    (2) Advise the local U.S. Probation Office of the inmate's arrival; 
and
    (3) Notify the U.S. Parole Commission of the inmate's arrival and 
projected release date.
    (d) If upon computation of sentence staff determine that an inmate 
is entitled to immediate release via mandatory release or expiration of 
sentence with credits applied, release procedures shall be implemented 
but only after receiving a medical clearance and the results of an FBI 
fingerprint check.

[46 FR 59507, Dec. 4, 1981. Redesignated and amended at 58 FR 47976, 
47977, Sept. 13, 1993; 62 FR 27872, May 21, 1997]

[[Page 509]]



                 SUBCHAPTER C--INSTITUTIONAL MANAGEMENT





PART 540--CONTACT WITH PERSONS IN THE COMMUNITY--Table of Contents




                           Subpart A--General

Sec.
540.2  Definitions.

                        Subpart B--Correspondence

540.10  Purpose and scope.
540.11  Mail depositories.
540.12  Controls and procedures.
540.13  Notification of rejections.
540.14  General correspondence.
540.15  Restricted general correspondence.
540.16  Inmate correspondence while in segregation and holdover status.
540.17  Correspondence between confined inmates.
540.18  Special mail.
540.19  Legal correspondence.
540.20  Inmate correspondence with representatives of the news media.
540.21  Payment of postage.
540.22  Special postal services.
540.23  Inmate funds received through the mails.
540.24  Returned mail.
540.25  Change of address and forwarding of mail for inmates.

Subpart C [Reserved]

                     Subpart D--Visiting Regulations

540.40  Purpose and scope.
540.41  Visiting facilities.
540.42  Visiting times.
540.43  Frequency of visits and number of visitors.
540.44  Regular visitors.
540.45  Qualification as special visitor.
540.46  Attorney visits.
540.47  Media visits.
540.48  [Reserved]
540.49  Transportation assistance.
540.50  Visits to inmates not in regular population status.
540.51  Procedures.
540.52  Penalty for violation of visiting regulations.

                   Subpart E--Contact With News Media

540.60  Purpose and scope.
540.61  Authorization.
540.62  Institutional visits.
540.63  Personal interviews.
540.64  Press pools.
540.65  Release of information.

                    Subpart F--Incoming Publications

540.70  Purpose and scope.
540.71  Procedures.
540.72  Statutory restrictions requiring return of commercially 
          published information or material which is sexually explicit 
          or features nudity.

Subparts G-H [Reserved]

              Subpart I--Telephone Regulations for Inmates

540.100  Purpose and scope.
540.101  Procedures.
540.102  Monitoring of inmate telephone calls.
540.103  Inmate telephone calls to attorneys.
540.104  Responsibility for inmate misuse of telephones.
540.105  Expenses of inmate telephone use.

    Authority: 5 U.S.C. 301, 551, 552a; 18 U.S.C. 1791, 3621, 3622, 
3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed 
on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as 
to offenses committed after that date), 5039; 28 U.S.C. 509, 510.



                           Subpart A--General

    Source: 50 FR 40108, Oct. 1, 1985, unless otherwise noted.



Sec. 540.2  Definitions.

    (a) General correspondence means incoming or outgoing correspondence 
other than special mail. General correspondence includes packages sent 
through the mail.
    (1) Open general correspondence means general correspondence which 
is not limited to a list of authorized correspondents, except as 
provided in Sec. 540.17.
    (2) Restricted general correspondence means general correspondence 
which is limited to a list of authorized correspondents.
    (b) Representatives of the news media means persons whose principal 
employment is to gather or report news for:
    (1) A newspaper which qualifies as a general circulation newspaper 
in the community in which it is published. A newspaper is one of 
``general circulation'' if it circulates among the general

[[Page 510]]

public and if it publishes news of a general character of general 
interest to the public such as news of political, religious, commercial, 
or social affairs. A key test to determine whether a newspaper qualifies 
as a ``general circulation'' newspaper is to determine whether the paper 
qualifies for the purpose of publishing legal notices in the community 
in which it is located or the area to which it distributes;
    (2) A news magazine which has a national circulation and is sold by 
newsstands and by mail subscription to the general public;
    (3) A national or international news service; or
    (4) A radio or television news program, whose primary purpose is to 
report the news, of a station holding a Federal Communications 
Commission license.
    (c) Special mail means correspondence sent to the following: 
President and Vice President of the United States, the U.S. Department 
of Justice (including the Bureau of Prisons), U.S. Attorneys Offices, 
Surgeon General, U.S. Public Health Service, Secretary of the Army, 
Navy, or Air Force, U.S. Courts (including U.S. Probation Officers), 
Members of the U.S. Congress, Embassies and Consulates, Governors, State 
Attorneys General, Prosecuting Attorneys, Directors of State Departments 
of Corrections, State Parole Commissioners, State Legislators, State 
Courts, State Probation Officers, other Federal and State law 
enforcement offices, attorneys, and representatives of the news media.

Special mail also includes correspondence received from the following: 
President and Vice President of the United States, attorneys, Members of 
the U.S. Congress, Embassies and Consulates, the U.S. Department of 
Justice (excluding the Bureau of Prisons but including U.S. Attorneys), 
other Federal law enforcement officers, State Attorneys General, 
Prosecuting Attorneys, Governors, U.S. Courts (including U.S. Probation 
Officers), and State Courts. For incoming correspondence to be processed 
under the special mail procedures (see Secs. 540.18--540.19), the sender 
must be adequately identified on the envelope, and the front of the 
envelope must be marked ``Special Mail--Open only in the presence of the 
inmate''.



                        Subpart B--Correspondence

    Source: 50 FR 40109, Oct. 1, 1985, unless otherwise noted.



Sec. 540.10  Purpose and scope.

    The Bureau of Prisons encourages correspondence that is directed to 
socially useful goals. The Warden shall establish correspondence 
procedures for inmates in each institution, as authorized and suggested 
in this rule.



Sec. 540.11  Mail depositories.

    The Warden shall establish at least one mail depository within the 
institution for an inmate to place outgoing correspondence. The Warden 
may establish a separate mail depository for outgoing special mail. Each 
item placed in a mail depository must contain a return address (see 
Sec. 540.12(d)).

[50 FR 40109, Oct. 1, 1985, as amended at 64 FR 32171, June 15, 1999]



Sec. 540.12  Controls and procedures.

    (a) The Warden shall establish and exercise controls to protect 
individuals, and the security, discipline, and good order of the 
institution. The size, complexity, and security level of the 
institution, the degree of sophistication of the inmates confined, and 
other variables require flexibility in correspondence procedures. All 
Wardens shall establish open general correspondence procedures.
    (b) Staff shall inform each inmate in writing promptly after arrival 
at an institution of that institution's rules for handling of inmate 
mail. This notice includes the following statement:

    The staff of each institution of the Bureau of Prisons has the 
authority to open all mail addressed to you before it is delivered to 
you. ``Special Mail'' (mail from the President and Vice President of the 
U.S., attorneys, Members of the U.S. Congress, Embassies and Consulates, 
the U.S. Department of Justice (excluding the Bureau of Prisons but 
including U.S. Attorneys), other Federal law enforcement officers, State 
Attorneys General, Prosecuting Attorneys, Governors, U.S. Courts 
(including U.S. Probation Officers), and State Courts) may be opened 
only in your presence to be checked for contraband.

[[Page 511]]

This procedure occurs only if the sender is adequately identified on the 
envelope and the front of the envelope is marked ``Special Mail--Open 
only in the presence of the inmate.'' Other mail may be opened and read 
by the staff.
    If you do not want your general correspondence opened and read, the 
Bureau will return it to the Postal Service. This means that you will 
not receive such mail. You may choose whether you want your general 
correspondence delivered to you subject to the above conditions, or 
returned to the Postal Service. Whatever your choice, special mail will 
be delivered to you, after it is opened in your presence and checked for 
contraband. You can make your choice by signing part I or part II.

   Part I--General Correspondence to be Returned to the Postal Service

    I have read or had read to me the foregoing notice regarding mail. I 
do not want my general correspondence opened and read. I REQUEST THAT 
THE BUREAU OF PRISONS RETURN MY GENERAL CORRESPONDENCE TO THE POSTAL 
SERVICE. I understand that special mail will be delivered to me, after 
it is opened in my presence and checked for contraband.
(Name)__________________________________________________________________
(Reg. No.)______________________________________________________________
(Date)__________________________________________________________________

    Part II--General Correspondence to be Opened, Read, and Delivered

    I have read or had read to me the foregoing notice regarding mail, I 
WISH TO RECEIVE MY GENERAL CORRESPONDENCE. I understand that the Bureau 
of Prisons may open and read my general correspondence if I choose to 
receive same. I also understand that special mail will be delivered to 
me, after it is opened in my presence and checked for contraband.
(Name)__________________________________________________________________
(Reg. No.)______________________________________________________________
(Date)__________________________________________________________________
    Inmate (Name), (Reg. No.), refused to sign this form. He (she) was 
advised by me that the Bureau of Prisons retains the authority to open 
and read all general correspondence. The inmate was also advised that 
his (her) refusal to sign this form will be interpreted as an indication 
that he (she) wishes to receive general correspondence subject to the 
conditions in part II above.
Staff Member's Signature________________________________________________
Date____________________________________________________________________

    (c) Staff shall inform an inmate that letters placed in the U.S. 
Mail are placed there at the request of the inmate and the inmate must 
assume responsibility for the contents of each letter. Correspondence 
containing threats, extortion, etc., may result in prosecution for 
violation of federal laws. When such material is discovered, the inmate 
may be subject to disciplinary action, the written material may be 
copied, and all material may be referred to the appropriate law 
enforcement agency for prosecution.
    (d) The inmate is responsible for filling out the return address 
completely on envelopes provided for the inmate's use by the 
institution. If the inmate uses an envelope not provided by the 
institution, the inmate is responsible for ensuring that the envelope 
used contains all return address information listed on the envelope 
provided by the institution.

[50 FR 40109, Oct. 1, 1985, as amended at 64 FR 32171, June 15, 1999]



Sec. 540.13  Notification of rejections.

    When correspondence is rejected, the Warden shall notify the sender 
in writing of the rejection and the reasons for the rejection. The 
Warden shall also give notice that the sender may appeal the rejection. 
The Warden shall also notify an inmate of the rejection of any letter 
addressed to that inmate, along with the reasons for the rejection and 
shall notify the inmate of the right to appeal the rejection. The Warden 
shall refer an appeal to an official other than the one who originally 
disapproved the correspondence. The Warden shall return rejected 
correspondence to the sender unless the correspondence includes plans 
for or discussion of commission of a crime or evidence of a crime, in 
which case there is no need to return the correspondence or give notice 
of the rejection, and the correspondence should be referred to 
appropriate law enforcement authorities. Also, contraband need not be 
returned to the sender.



Sec. 540.14  General correspondence.

    (a) Institution staff shall open and inspect all incoming general 
correspondence. Incoming general correspondence may be read as 
frequently as deemed necessary to maintain security or monitor a 
particular problem confronting an inmate.
    (b) Except for ``special mail,'' outgoing mail from a pretrial 
inmate may

[[Page 512]]

not be sealed by the inmate and may be read and inspected by staff.
    (c)(1) Outgoing mail from a sentenced inmate in a minimum or low 
security level institution may be sealed by the inmate and, except as 
provided for in paragraphs (c)(1)(i) through (iv) of this section, is 
sent out unopened and uninspected. Staff may open a sentenced inmate's 
outgoing general correspondence:
    (i) If there is reason to believe it would interfere with the 
orderly running of the institution, that it would be threatening to the 
recipient, or that it would facilitate criminal activity;
    (ii) If the inmate is on a restricted correspondence list;
    (iii) If the correspondence is between inmates (see Sec. 540.17); or
    (iv) If the envelope has an incomplete return address.
    (2) Except for ``special mail,'' outgoing mail from a sentenced 
inmate in a medium or high security level institution, or an 
administrative institution may not be sealed by the inmate and may be 
read and inspected by staff.
    (d) The Warden may reject correspondence sent by or to an imate if 
it is determined detrimental to the security, good order, or discipline 
of the institution, to the protection of the public, or if it might 
facilitate criminal activity. Correspondence which may be rejected by a 
Warden includes, but is not limited to, correspondence which contains 
any of the following:
    (1) Matter which is nonmailable under law or postal regulations;
    (2) Matter which depicts, describes, or encourages activities which 
may lead to the use of physical violence or group disruption;
    (3) Information of escape plots, of plans to commit illegal 
activities, or to violate Bureau rules or institution guidelines;
    (4) Direction of an inmate's business (See Sec. 541.13, Prohibited 
Act No. 408). An inmate, unless a pre-trial detainee, may not direct a 
business while confined.

This does not, however, prohibit correspondence necessary to enable an 
inmate to protect property and funds that were legitimately the inmate's 
at the time of commitment. Thus, for example, an inmate may correspond 
about refinancing an existing mortgage or sign insurance papers, but may 
not operate a mortgage or insurance business while in the institution.
    (5) Threats, extortion, obscenity, or gratuitous profanity;
    (6) A code;
    (7) Sexually explicit material (for example, personal photographs) 
which by its nature or content poses a threat to an individual's 
personal safety or security, or to institution good order; or
    (8) Contraband. (See Sec. 500.1 of this chapter. A package received 
without prior authorization by the Warden is considered to be 
contraband.)

[50 FR 40109, Oct. 1, 1985, as amended at 56 FR 4159, Feb. 1, 1991; 62 
FR 65186, Dec. 10, 1997]



Sec. 540.15  Restricted general correspondence.

    (a) The Warden may place an inmate on restricted general 
correspondence based on misconduct or as a matter of classification. 
Determining factors include the inmate's:
    (1) Involvement in any of the activities listed in Sec. 540.14(d);
    (2) Attempting to solicit funds or items (e.g., samples), or 
subscribing to a publication without paying for the subscription;
    (3) Being a security risk;
    (4) Threatening a government official; or
    (5) Having committed an offense involving the mail.
    (b) The Warden may limit to a reasonable number persons on the 
approved restricted general correspondence list of an inmate.
    (c) The Warden shall use one of the following procedures before 
placing an inmate on restricted general correspondence.
    (1) Where the restriction will be based upon an incident report, 
procedures must be followed in accordance with inmate disciplinary 
regulations (part 541, subpart B of this chapter).
    (2) Where there is no incident report, the Warden:
    (i) Shall advise the inmate in writing of the reasons the inmate is 
to be placed on restricted general correspondence;
    (ii) Shall give the inmate the opportunity to respond to the 
classification or change in classification; the inmate

[[Page 513]]

has the option to respond orally or to submit written information or 
both; and
    (iii) Shall notify the inmate of the decision and the reasons, and 
shall advise the inmate that the inmate may appeal the decision under 
the Administrative Remedy Procedure.
    (d) When an inmate is placed on restricted general correspondence, 
the inmate may, except as provided in Secs. 540.16 and 540.17:
    (1) Correspond with the inmate's spouse, mother, father, children, 
and siblings, unless the correspondent is involved in an violation of 
correspondence regulations, or would be a threat to the security or good 
order of the institution;
    (2) Request other persons also to be placed on the approved 
correspondence list, subject to investigation, evaluation, and approval 
by the Warden; with prior approval, the inmate may write to a proposed 
correspondence to obtain a release authorizing an investigation; and
    (3) Correspond with former business associates, unless it appears to 
the Warden that the proposed correspondent would be a threat to the 
security or good order of the institution, or that the resulting 
correspondence could reasonably be expected to result in criminal 
activity. Correspondence with former business associates is limited to 
social matters.
    (e) The Warden may allow an inmate additional correspondence with 
persons other than those on the inmate's approved mailing list when the 
correspondence is shown to be necessary and does not require an addition 
to the mailing list because it is not of an ongoing nature.



Sec. 540.16  Inmate correspondence while in segregation and holdover status.

    (a) The Warden shall permit an inmate in holdover status (i.e., 
enroute to a designated institution) to have correspondence privileges 
similar to those of other inmates insofar as practical.
    (b) The Warden shall permit an inmate in segregation to have full 
correspondence privileges unless placed on restricted general 
correspondence under Sec. 540.15.



Sec. 540.17  Correspondence between confined inmates.

    An inmate may be permitted to correspond with an inmate confined in 
any other penal or correctional institution if the other inmate is 
either a member of the immediate family, or is a party or witness in a 
legal action in which both inmates are involved. Such correspondence may 
be approved in other exceptional circumstances, with particular regard 
to the security level of the institution, the nature of the relationship 
between the two inmates, and whether the inmate has other regular 
correspondence. The following additional limitations apply:
    (a) Such correspondence at institutions of all security levels may 
always be inspected and read by staff at the sending and receiving 
institutions (it may not be sealed by the inmate); and
    (b)(1) The appropriate unit manager at each institution must approve 
of the correspondence if both inmates are housed in Federal institutions 
and both inmates are members of the same immediate family or are a party 
or witness in a legal action in which both inmates are involved.
    (2) The Wardens of both institutions must approve of the 
correspondence if one of the inmates is housed at a non-Federal 
institution or if approval is being granted on the basis of exceptional 
circumstances.

[50 FR 40109, Oct. 1, 1985, as amended at 61 FR 65204, Dec. 18, 1995]



Sec. 540.18  Special mail.

    (a) The Warden shall open incoming special mail only in the presence 
of the inmate for inspection for physical contraband and the 
qualification of any enclosures as special mail. The correspondence may 
not be read or copied if the sender is adequately identified on the 
envelope, and the front of the envelope is marked ``Special Mail--Open 
only in the presence of the inmate''.
    (b) In the absence of either adequate identification or the 
``special mail'' marking indicated in paragraph (a) of this section 
appearing on the envelope, staff may treat the mail as general 
correspondence and may open, inspect, and read the mail.

[[Page 514]]

    (c)(1) Except as provided for in paragraph (c)(2) of this section, 
outgoing special mail may be sealed by the inmate and is not subject to 
inspection.
    (2) Special mail shall be screened in accordance with the provisions 
of paragraph (c)(2)(iii) of this section when the special mail is being 
sent by an inmate who has been placed on restricted special mail status.
    (i) An inmate may be placed on restricted special mail status if the 
Warden, with the concurrence of the Regional Counsel, documents in 
writing that the special mail either has posed a threat or may pose a 
threat of physical harm to the recipient (e.g., the inmate has 
previously used special mail to threaten physical harm to a recipient).
    (ii) The Warden shall notify the inmate in writing of the reason the 
inmate is being placed on restricted special mail status.
    (iii) An inmate on restricted special mail status must present all 
materials and packaging intended to be sent as special mail to staff for 
inspection. Staff shall inspect the special mail material and packaging, 
in the presence of the inmate, for contraband. If the intended recipient 
of the special mail has so requested, staff may read the special mail 
for the purpose of verifying that the special mail does not contain a 
threat of physical harm. Upon completion of the inspection, staff shall 
return the special mail material to the inmate if the material does not 
contain contraband, or contain a threat of physical harm to the intended 
recipient. The inmate must then seal the special mail material in the 
presence of staff and immediately give the sealed special mail material 
to the observing staff for delivery. Special mail determined to pose a 
threat to the intended recipient shall be forwarded to the appropriate 
law enforcement entity. Staff shall send a copy of the material, minus 
the contraband, to the intended recipient along with notification that 
the original of the material was forwarded to the appropriate law 
enforcement entity.
    (iv) The Warden shall review an inmate's restricted special mail 
status at least once every 180 days. The inmate is to be notified of the 
results of this review. An inmate may be removed from restricted special 
mail status if the Warden determines, with the concurrence of the 
Regional Counsel, that the special mail does not threaten or pose a 
threat of physical harm to the intended recipient.
    (v) An inmate on restricted mail status may seek review of the 
restriction through the Administrative Remedy Program.
    (d) Except for special mail processed in accordance with paragraph 
(c)(2) of this section, staff shall stamp the following statement 
directly on the back side of the inmate's outgoing special mail: ``The 
enclosed letter was processed through special mailing procedures for 
forwarding to you. The letter has neither been opened nor inspected. If 
the writer raises a question or problem over which this facility has 
jurisdiction, you may wish to return the material for further 
information or clarification. If the writer encloses correspondence for 
forwarding to another addressee, please return the enclosure to the 
above address.''

[50 FR 40108, Oct. 1, 1985, as amended at 62 FR 65185, Dec. 10, 1997]



Sec. 540.19  Legal correspondence.

    (a) Staff shall mark each envelope of incoming legal mail (mail from 
courts or attorneys) to show the date and time of receipt, the date and 
time the letter is delivered to an inmate and opened in the inmate's 
presence, and the name of the staff member who delivered the letter. The 
inmate may be asked to sign as receiving the incoming legal mail. This 
paragraph applies only if the sender has marked the envelope as 
specified in Sec. 540.18.
    (b) The inmate is responsible for advising any attorney that 
correspondence will be handled as special mail only if the envelope is 
marked with the attorney's name and an indication that the person is an 
attorney, and the front of the envelope is marked ``Special Mail--Open 
only in the presence of the inmate''. Legal mail shall be opened in 
accordance with special mail procedures (see Sec. 540.18).
    (c) Grounds for the limitation or denial of an attorney's 
correspondence rights or privileges are stated in part 543, subpart B. 
If such action is taken,

[[Page 515]]

the Warden shall give written notice to the attorney and the inmate 
affected.
    (d) In order to send mail to an attorney's assistant or to a legal 
aid student or assistant, an inmate shall address the mail to the 
attorney or legal aid supervisor, or the legal organization or firm, to 
the attention of the student or assistant.
    (e) Mail to an inmate from an attorney's assistant or legal aid 
student or assistant, in order to be identified and treated by staff as 
special mail, must be properly identified on the envelope as required in 
paragraph (b) of this section, and must be marked on the front of the 
envelope as being mail from the attorney or from the legal aid 
supervisor.



Sec. 540.20  Inmate correspondence with representatives of the news media.

    (a) An inmate may write through ``special mail'' to representatives 
of the news media specified by name or title (see Sec. 540.2(b)).
    (b) The inmate may not receive compensation or anything of value for 
correspondence with the news media. The inmate may not act as reporter 
or publish under a byline.
    (c) Representatives of the news media may initiate correspondence 
with an inmate. Staff shall open incoming correspondence from 
representatives of the media and inspect for contraband, for its 
qualification as media correspondence, and for content which is likely 
to promote either illegal activity or conduct contrary to Bureau 
regulations.



Sec. 540.21  Payment of postage.

    (a) Except as provided in paragraphs (d), (e), (f), and (i) of this 
section, postage charges are the responsibility of the inmate. The 
Warden shall ensure that the inmate commissary has postage stamps 
available for purchase by inmates.
    (b) Writing paper and envelopes are provided at no cost to the 
inmate. Inmates who use their own envelopes must place a return address 
on the envelope (see Sec. 540.12(d)).
    (c) Inmate organizations will purchase their own postage.
    (d) An inmate who has neither funds nor sufficient postage and who 
wishes to mail legal mail (includes courts and attorneys) or 
Administrative Remedy forms will be provided the postage stamps for such 
mailing. To prevent abuses of this provision, the Warden may impose 
restrictions on the free legal and administrative remedy mailings.
    (e) When requested by an inmate who has neither funds nor sufficient 
postage, and upon verification of this status by staff, the Warden shall 
provide the postage stamps for mailing a reasonable number of letters at 
government expense to enable the inmate to maintain community ties. To 
prevent abuses of this provision, the Warden may impose restrictions on 
the free mailings.
    (f) Mailing at government expense is also allowed for necessary 
correspondence in verified emergency situations for inmates with neither 
funds nor sufficient postage.
    (g) Inmates must sign for all stamps issued to them by institution 
staff.
    (h) Mail received with postage due is not ordinarily accepted by the 
Bureau of Prisons.
    (i) Holdovers and pre-trial commitments will be provided a 
reasonable number of stamps for the mailing of letters at government 
expense.
    (j) Inmates may not be permitted to receive stamps or stamped items 
(e.g., envelopes embossed with stamps, postal cards with postage 
affixed) other than by issuance from the institution or by purchase from 
commissary.

[50 FR 40109, Oct. 1, 1985, as amended at 64 FR 32171, June 15, 1999]



Sec. 540.22  Special postal services.

    (a) An inmate, at no cost to the government, may send correspondence 
by registered, certified, or insured mail, and may request a return 
receipt.
    (b) An inmate may insure outgoing personal correspondence (e.g., a 
package containing the inmate's hobbycrafts) by completing the 
appropriate form and applying sufficient postage.
    (1) In the event of loss or damage, any claim relative to this 
matter is made to the U.S. Postal Service, either by the inmate or the 
recipient. The U.S. Postal Service will only indemnify a piece of 
insured mail for the actual

[[Page 516]]

value of an item, regardless of declared value.
    (2) Inmate packages forwarded as a result of institution 
administration are considered official mail, except as otherwise 
specified (for example, hobbycraft articles mailed out of the 
institution). Official mail is not insured. If such an item is 
subsequently lost or damaged in the mail process the inmate may file a 
tort claim with the Bureau of Prisons (see part 543, subpart C of this 
chapter).
    (c) Certified mail is sent first class at the inmate's expense.
    (d) An inmate may not be provided such services as express mail, 
COD, private carriers, or stamp collecting while confined.



Sec. 540.23  Inmate funds received through the mails.

    (a) An inmate, upon completing the appropriate form, may receive 
funds from family or friends or, upon approval of the Warden, from other 
persons for crediting to the inmate's trust fund account.
    (b) An inmate is responsible for advising persons forwarding the 
inmate funds that all negotiable instruments, such as checks and money 
orders, should give both the inmate's name and register number, thereby 
helping to ensure a deposit to the proper inmate's account. Negotiable 
instruments not accepted because they are incorrectly prepared will be 
returned to the sender, with a letter of explanation. A copy of this 
letter will be sent to the inmate.
    (c) An inmate may not receive through the mail unsolicited funds, 
nor may the inmate solicit funds or initiate requests which might result 
in the solicitation of funds from persons other than as specified in 
paragraph (a) of this section.
    (d) An inmate may not receive through the mail funds for direct 
services provided by the government, such as medical services.



Sec. 540.24  Returned mail.

    Staff shall open and inspect for contraband all undelivered mail 
returned to an institution by the Post Office before returning it to the 
inmate. The purpose of this inspection is to determine if the content 
originated with the inmate sender identified on the letter or package; 
to prevent the transmission of material, substances, and property which 
an inmate is not permitted to possess in the institution; and to 
determine that the mail was not opened or tampered with before its 
return to the institution. Any remailing is at the inmate's expense. Any 
returned mail qualifying as ``special mail'' is opened and inspected for 
contraband in the inmate's presence.



Sec. 540.25  Change of address and forwarding of mail for inmates.

    (a) Staff shall make available to an inmate who is being released or 
transferred appropriate Bureau of Prisons and U.S. Postal Service forms 
for change of address.
    (b) Inmates are responsible for informing their correspondents of a 
change of address.
    (c) Postage for mailing change of address cards is paid by the 
inmate.
    (d) Except as provided in paragraphs (e) through (g) of this 
section, all mail received for a released or transferred inmate will be 
returned to the U.S. Postal Service for disposition in accordance with 
U.S. Postal Service regulations.
    (e) Staff shall use all means practicable to forward special mail.
    (f) Staff shall forward inmate general correspondence to the new 
address for a period of 30 days.
    (g) Staff shall permit an inmate released temporarily on writ to 
elect either to have general correspondence held at the institution for 
a period not to exceed 30 days, or returned to the U.S. Postal Service 
for disposition.
    (1) If the inmate refuses to make this election, staff at the 
institution shall document this refusal, and any reasons, in the 
inmate's central file. Staff shall return to the U.S. Postal Service all 
general correspondence received for such as inmate after the inmate's 
departure.
    (2) If the inmate does not return from writ within the time 
indicated, staff shall return to the U.S. Postal Service all general 
correspondence being held for that inmate for disposition in accordance 
with postal regulations.

[[Page 517]]

Subpart C [Reserved]



                     Subpart D--Visiting Regulations

    Source: 45 FR 44232, June 30, 1980, unless otherwise noted.



Sec. 540.40  Purpose and scope.

    The Bureau of Prisons encourages visiting by family, friends, and 
community groups to maintain the morale of the inmate and to develop 
closer relationships between the inmate and family members or others in 
the community. The Warden shall develop procedures consistent with this 
rule to permit inmate visiting. The Warden may restrict inmate visiting 
when necessary to ensure the security and good order of the institution.

[45 FR 44232, June 30, 1980, as amended at 58 FR 39095, July 21, 1993]



Sec. 540.41  Visiting facilities.

    The Warden shall have the visiting room arranged so as to provide 
adequate supervision, adapted to the degree of security required by the 
type of institution. The Warden shall ensure that the visiting area is 
as comfortable and pleasant as practicable, and appropriately furnished 
and arranged. If space is available, the Warden shall have a portion of 
the visiting room equipped and set up to provide facilities for the 
children of visitors.
    (a) Institutions of minimum and low security levels may permit 
visits beyond the security perimeter, but always under supervision of 
staff.
    (b) Institutions of medium and high security levels, and 
administrative institutions may establish outdoor visiting, but it will 
always be inside the security perimeter and always under supervision of 
staff.

[45 FR 44232, June 30, 1980, as amended at 51 FR 26127, July 18, 1986; 
56 FR 4159, Feb. 1, 1991]



Sec. 540.42  Visiting times.

    (a) Each Warden shall establish a visiting schedule for the 
institution. At a minimum, the Warden shall establish visiting hours at 
the institution on Saturdays, Sundays, and holidays. The restriction of 
visiting to these days may be a hardship for some families and 
arrangements for other suitable hours shall be made to the extent 
practicable. Where staff resources permit, the Warden may establish 
evening visiting hours.
    (b) Consistent with available resources, such as space limitations 
and staff availability, and with concerns of institution security, the 
Warden may limit the visiting period. With respect to weekend visits, 
for example, some or all inmates and visitors may be limited to visiting 
on Saturday or on Sunday, but not on both days, in order to accommodate 
the volume of visitors. There is no requirement that every visitor has 
the opportunity to visit on both days of the weekend, nor that every 
inmate has the opportunity to have visits on both days of the weekend.

[51 FR 26127, July 18, 1986]



Sec. 540.43  Frequency of visits and number of visitors.

    The Warden shall allow each inmate a minimum of four hours visiting 
time per month. The Warden may limit the length or frequency of visits 
only to avoid chronic overcrowding. The Warden may establish a guideline 
for the maximum number of persons who may visit an inmate at one time, 
to prevent overcrowding in the visiting room or unusual difficulty in 
supervising a visit. Exceptions may be made to any local guideline when 
indicated by special circumstances, such as distance the visitor must 
travel, frequency of the inmate's visits, or health problems of the 
inmate or visitor.



Sec. 540.44  Regular visitors.

    An inmate desiring to have regular visitors must submit a list of 
proposed visitors to the designated staff. See Sec. 540.45 for 
qualification as special visitor. Staff are to compile a visiting list 
for each inmate after suitable investigation in accordance with 
Sec. 540.51(b) of this part. The list may include:
    (a) Members of the immediate family. These persons include mother, 
father, step-parents, foster parents, brothers and sisters, spouse, and 
children. These individuals are placed on the visiting list, absent 
strong circumstances which preclude visiting.

[[Page 518]]

    (b) Other relatives. These persons include grandparents, uncles, 
aunts, in-laws, and cousins. They may be placed on the approved list if 
the inmate wishes to have visits from them regularly and if there exists 
no reason to exclude them.
    (c) Friends and associates. The visiting privilege ordinarily will 
be extended to friends and associates having an established relationship 
with the inmate prior to confinement, unless such visits could 
reasonably create a threat to the security and good order of the 
institution. Exceptions to the prior relationship rule may be made, 
particularly for inmates without other visitors, when it is shown that 
the proposed visitor is reliable and poses no threat to the security or 
good order of the institution.
    (d) Persons with prior criminal convictions. The existence of a 
criminal conviction alone does not preclude visits. Staff shall give 
consideration to the nature, extent and recentness of convictions, as 
weighed against the security considerations of the institution. Specific 
approval of the Warden may be required before such visits take place.
    (e) Children under sixteen. Children under the age of 16 may not 
visit unless accompanied by a responsible adult. Children shall be kept 
under supervision of a responsible adult or a children's program. 
Exceptions in unusual circumstances may be made by special approval of 
the Warden.

[45 FR 44232, June 30, 1980, as amended at 56 FR 4159, Feb. 1, 1991; 68 
FR 10658, Mar. 6, 2003]



Sec. 540.45  Qualification as special visitor.

    Persons in the categories listed in this section may qualify as 
special visitors rather than as regular visitors. Visits by special 
visitors ordinarily are for a specific purpose and ordinarily are not of 
a recurring nature. Except as specified, the conditions of visiting for 
special visitors are the same as for regular visitors.
    (a) Business visitor. Except for pretrial inmates, an inmate is not 
permitted to engage actively in a business or profession. An inmate who 
was engaged in a business or profession prior to commitment is expected 
to assign authority for the operation of such business or profession to 
a person in the community. Pretrial inmates may be allowed special 
visitors for the purpose of protecting the pretrial inmate's business 
interests. In those instances where an inmate has turned over the 
operation of a business or profession to another person, there still may 
be an occasion where a decision must be made which will substantially 
affect the assets or prospects of the business. The Warden accordingly 
may permit a special business visit in such cases. The Warden may waive 
the requirement for the existence of an established relationship prior 
to confinement for visitors approved under this paragraph.
    (b) Consular visitors. When it has been determined that an inmate is 
a citizen of a foreign country, the Warden must permit the consular 
representative of that country to visit on matters of legitimate 
business. The Warden may not withhold this privilege even though the 
inmate is in disciplinary status. The requirement for the existence of 
an established relationship prior to confinement does not apply to 
consular visitors.
    (c) Representatives of community groups. The Warden may approve 
visits on a recurring basis to representatives from community groups 
(for example, civic, volunteer, or religious organizations) who are 
acting in their official capacity. These visits may be for the purpose 
of meeting with an individual inmate or with a group of inmates. The 
requirement for the existence of an established relationship prior to 
confinement for visitors does not apply to representatives of community 
groups.
    (d) Clergy, former or prospective employers, sponsors, and parole 
advisors. Visitors in this category ordinarily provide assistance in 
release planning, counseling, and discussion of family problems. The 
requirement for the existence of an established relationship prior to 
confinement for visitors does not apply to visitors in this category.

[68 FR 10658, Mar. 6, 2003]



Sec. 540.46  Attorney visits.

    Requirements for attorney visits are governed by the provisions on 
inmate legal activities (see Secs. 543.12 through

[[Page 519]]

543.16 of this chapter). Provisions pertinent to attorney visits for 
pretrial inmates are contained in Sec. 551.117 of this chapter.

[68 FR 10658, Mar. 6, 2003]



Sec. 540.47  Media visits.

    Requirements for media visits are governed by the provisions on 
contact with news media (see subpart E of this part). A media 
representative who wishes to visit outside his or her official duties, 
however, must qualify as a regular visitor or, if applicable, a special 
visitor.

[68 FR 10658, Mar. 6, 2003]



Sec. 540.48  [Reserved]



Sec. 540.49  Transportation assistance.

    The Warden shall ensure that directions for transportation to and 
from the institution are provided for the approved visitor (see 
Sec. 540.51(b)(4)). Directions for transportation to and from the 
institution and pay phone service, with commercial transportation phone 
numbers posted, are also to be made available at the institution to 
assist visitors.



Sec. 540.50  Visits to inmates not in regular population status.

    (a) Admission and holdover status. The Warden may limit to the 
immediate family of the inmate visits during the admission-orientation 
period or for holdovers where there is neither a visiting list from a 
transferring institution nor other verification of proposed visitors.
    (b) Hospital patients. (1) When visitors request to see an inmate 
who is hospitalized in the institution, the Chief Medical Officer (or, 
in his absence, the Health Services Administrator), in consultation with 
the Captain, shall determine whether a visit may occur, and if so, 
whether it may be held in the hospital.
    (2) Visits to inmates hospitalized in the community may be 
restricted to only the immediate family and are subject to the general 
visiting policy of that hospital.
    (c) Detention or segregation status. Ordinarily, an inmate retains 
visiting privileges while in detention or segregation status. Visiting 
may be restricted or disallowed, however, when an inmate, while in 
detention or segregation status, is charged with, or has been found to 
have committed, a prohibited act having to do with visiting guidelines 
or has otherwise acted in a way that would reasonably indicate that he 
or she would be a threat to the orderliness or security of the visiting 
room. Loss of an inmate's visiting privileges for other reasons may not 
occur unless the inmate is provided a hearing before the Discipline 
Hearing Officer (DHO) in accordance with the provisions of Sec. 541.17 
of this chapter, following those provisions which are appropriate to the 
circumstances, which results in a finding by the DHO that the inmate 
committed a prohibited act and that there is a lack of other appropriate 
sanctions or that imposition of an appropriate sanction previously has 
been ineffective. The Unit Discipline Committee (UDC) may not impose a 
loss of visiting privileges for inmates in detention or segregation 
status. The provisions of this paragraph (c) do not interrupt or delay a 
loss of visiting sanction imposed by the UDC or DHO prior to the 
inmate's placement in detention or segregation status.

[45 FR 44232, June 30, 1980, as amended at 51 FR 26128, July 18, 1986; 
58 FR 39095, July 21, 1993]



Sec. 540.51  Procedures.

    (a) Responsibility. The Warden of the institution shall establish 
and enforce local visiting guidelines in accordance with the rules and 
regulations of the Bureau of Prisons.
    (b) Preparation of the list of visitors. (1) Staff shall ask each 
inmate to submit during the admission-orientation process a list of 
proposed visitors. After appropriate investigation, staff shall compile 
a visiting list for each inmate and distribute that list to the inmate 
and the visiting room officer.
    (2) Staff may request background information from potential visitors 
who are not members of the inmate's immediate family, before placing 
them on the inmate's approved visiting list. When little or no 
information is available on the inmate's potential visitor, visiting may 
be denied, pending receipt

[[Page 520]]

and review of necessary information, including information which is 
available on the inmate and/or the inmate's offense, including alleged 
offenses.
    (3) If a background investigation is necessary before approving a 
visitor, the inmate shall be held responsible for mailing a release 
authorization form to the proposed visitor. That form must be signed and 
returned to staff by the proposed visitor prior to any further action 
regarding visiting. Upon receipt of the authorization form, staff may 
then forward a questionnaire, along with the release authorization, to 
the appropriate law enforcement or crime information agency.
    (4) Staff shall notify the inmate of each approval or disapproval of 
a requested person for the visiting list. Upon approval of each visitor, 
staff shall provide the inmate a copy of the visiting guidelines and 
with directions for transportation to and from the institution. The 
inmate is responsible for notifying the visitor of the approval or 
disapproval to visit and is expected to provide the approved visitors 
with a copy of the visiting guidelines and directions for transportation 
to and from the institution. The visiting guidelines shall include 
specific directions for reaching the institution and shall cite 18 
U.S.C. 1791, which provides a penalty of imprisonment for not more than 
twenty years, a fine, or both for providing or attempting to provide to 
an inmate anything whatsoever without the knowledge and consent of the 
Warden.
    (5) An inmate's visiting list may be amended at any time in 
accordance with the procedures of this section.
    (c) Verification of special visitor credentials. Staff must verify 
the qualifications of special visitors. Staff may request background 
information and official assignment documentation from the potential 
visitor for this purpose.
    (d) Identification of visitors. Staff shall verify the identity of 
each visitor (through driver's license, photo identification, etc.) 
prior to admission of the visitor to the institution.
    (e) Notification to visitors. Staff shall make available to all 
visitors written guidelines for visiting the institution. Staff shall 
have the visitor sign a statement acknowledging that the guidelines were 
provided and declaring that the visitor does not have any articles in 
his/her possession which the visitor knows to be a threat to the 
security of the institution. Staff may deny the visiting privilege to a 
visitor who refuses to make such a declaration.
    (f) Searching visitors. Staff may require a visitor to submit to a 
personal search, including a search of any items of personal property, 
as a condition of allowing or continuing a visit.
    (g) Record of visitors. The Warden shall maintain a record of 
visitors to each inmate. The visitor's signature may be required on that 
record and shall be required on at least one visiting log or record 
maintained by the institution.
    (h) Supervision of visits. Staff shall supervise each inmate visit 
to prevent the passage of contraband and to ensure the security and good 
order of the institution. The Warden may establish procedures to enable 
monitoring of the visiting area, including restrooms located within the 
visiting area. The Warden must provide notice to both visitors and 
inmates of the potential for monitoring the visiting area. The Warden 
may monitor a visitor restroom within the visiting area when there is 
reasonable suspicion that a visitor and/or an inmate is engaged, or 
attempting or about to engage, in criminal behavior or other prohibited 
behavior.
    (1) The visiting room officer shall ensure that all visits are 
conducted in a quiet, orderly, and dignified manner. The visiting room 
officer may terminate visits that are not conducted in the appropriate 
manner. See 28 CFR 541.12, item 5, for description of an inmate's 
responsibility during visits.
    (2) Staff shall permit limited physical contact, such as 
handshaking, embracing, and kissing, between an inmate and a visitor, 
unless there is clear and convincing evidence that such contact would 
jeopardize the safety or security of the institution. Where contact 
visiting is provided, handshaking, embracing, and kissing are ordinarily 
permitted within the bounds of good taste and only at the beginning and 
at the end of the visit. The staff may

[[Page 521]]

limit physical contact to minimize opportunity for the introduction of 
contraband and to maintain the orderly operation of the visiting area.
    (3) The visiting room officer may not accept articles or gifts of 
any kind for an inmate, except packages which have had prior approval by 
the Warden or a designated staff member. The Warden may allow a visitor 
to leave money with a designated staff member for deposit in the 
inmate's commissary account.
    (4) The visiting room officer shall be aware of any articles passed 
between the inmate and the visitor. If there is any reasonable basis to 
believe that any item is being passed which constitutes contraband or is 
otherwise in violation of the law or Bureau regulations, the visiting 
room officer may examine the item.

[45 FR 44232, June 30, 1980, as amended at 51 FR 26128, July 18, 1986; 
58 FR 39095, July 21, 1993; 64 FR 25795, May 12, 1999; 68 FR 10658, Mar. 
6, 2003]



Sec. 540.52  Penalty for violation of visiting regulations.

    Any act or effort to violate the visiting guidelines of an 
institution may result in disciplinary action against the inmate, which 
may include the denial of future visits, possibly over an extended 
period of time. Moreover, criminal prosecution may be initiated against 
the visitor, the inmate, or both, in the case of criminal violations.



                   Subpart E--Contact With News Media

    Source: 44 FR 38247, June 29, 1979, unless otherwise noted.



Sec. 540.60  Purpose and scope.

    The Bureau of Prisons recognizes the desirability of establishing a 
policy that affords the public information about its operations via the 
news media. Representatives of the news media (see Sec. 540.2) may visit 
institutions for the purpose of preparing reports about the institution, 
programs, and activities. It is not the intent of this rule to provide 
publicity for an inmate or special privileges for the news media, but 
rather to insure a better informed public. The Bureau of Prisons also 
has a responsibility to protect the privacy and other rights of inmates 
and members of the staff. Therefore, an interview in an institution must 
be regulated to insure the orderly and safe operation of the 
institution.



Sec. 540.61  Authorization.

    (a) A news media representative who desires to make a visit or 
conduct an interview at an institution must make application in writing 
to the Warden, indicating that he or she is familiar with the rules and 
regulations of the institution and agrees to comply with them.
    (b) As a condition of authorizing interviews and making facilities 
available to conduct an interview, the news media representative shall 
recognize a professional responsibility to make reasonable attempts to 
verify any allegations regarding an inmate, staff member or institution.
    (c) A representative of the news media is requested to provide the 
Bureau of Prisons an opportunity to respond to any allegation, which 
might be published or broadcast prior to distribution.
    (d) A representative of the news media shall collect information 
only from the primary source. A representative of the news media may not 
obtain and use personal information from one inmate about another inmate 
who refuses to be interviewed.
    (e) The Warden may be contacted concerning discussions or comments 
regarding applicability of any rule or order.
    (f) Failure to adhere to the standards of conduct set forth by this 
rule for the news media representative constitutes grounds for denying 
that news media representative, or the news organization which he or she 
represents, permission to conduct an interview.
    (g) Any questions as to the meaning or application of this subpart 
are resolved by the Director of the Bureau of Prisons.



Sec. 540.62  Institutional visits.

    (a) A media representative shall make advance appointments for 
visits.
    (b) When media representatives visit the institutions, photographs 
of programs and activities may be taken, and

[[Page 522]]

media representatives may meet with groups of inmates engaged in 
authorized programs and activities. An inmate has the right not to be 
photographed and not to have his or her voice recorded by the media. A 
visiting representative of the media is required to obtain written 
permission from an inmate before photographing or recording the voice of 
an inmate participating in authorized programs and activities.
    (c) The Warden may suspend all media visits during an institutional 
emergency and for a reasonable time after the emergency.
    (d) An inmate currently confined in an institution may not be 
employed or act as a reporter or publish under a byline.
    (e) Interviews by reporters and others not included in Sec. 540.2 
may be permitted only by special arrangement and with approval of the 
Warden.



Sec. 540.63  Personal interviews.

    (a) An inmate may not receive compensation or anything of value for 
interviews with the news media.
    (b) Either an inmate or a representative of the news media may 
initiate a request for a personal interview at an institution.
    (c) Visits by the news media to conduct personal interviews are 
subject to the same conditions stated in Sec. 540.62. A media 
representative shall make a request for personal interview within a 
reasonable time prior to the personal interview.
    (d) Staff shall notify an inmate of each interview request, and 
shall, as a prerequisite, obtain from the inmate written consent for the 
interview prior to the interview taking place. The written consent or 
denial becomes part of the inmate's central file.
    (e) As a prerequisite to granting the interview, an inmate must 
authorize the institutional staff to respond to comments made in the 
interview and to release information to the news media relative to the 
inmate's comments.
    (f) The Warden shall normally approve or disapprove an interview 
request within 24 to 48 hours of the request.
    (g) The Warden shall document any disapproval. A request for 
interview may be denied for any of the following reasons.
    (1) The news media representative, or the news organization which he 
or she represents, does not agree to the conditions established by this 
subpart or has, in the past, failed to abide by the required conditions.
    (2) The inmate is physically or mentally unable to participate. This 
must be supported by a medical officer's statement (a psychologist may 
be used to verify mental incapacity) to be placed in the inmate's 
record, substantiating the reason for disapproval.
    (3) The inmate is a juvenile (under age 18) and written consent has 
not been obtained from the inmate's parent or guardian. If the juvenile 
inmate's parents or guardians are not known or their addresses are not 
known, the Warden of the institution shall notify the representative of 
the news media of the inmate's status as a juvenile, and shall then 
consider the request.
    (4) The interview, in the opinion of the Warden, would endanger the 
health or safety of the interviewer, or would probably cause serious 
unrest or disturb the good order of the institution.
    (5) The inmate is involved in a pending court action and the court 
having jurisdiction has issued an order forbidding such interviews.
    (6) In the case of unconvicted persons (including competency 
commitments under 18 U.S.C. 4244 and 4246) held in federal institutions, 
interviews are not authorized until there is clearance with the court 
having jurisdiction, ordinarily through the U.S. Attorney's Office.
    (7) The inmate is a ``protection'' case and revelation of his or her 
whereabouts would endanger the inmate's safety.
    (h) Interviews are normally held in the institution visiting room 
during normal weekday business hours. The Warden may:
    (1) Determine that another location is more suitable for conducting 
the interview;
    (2) Limit interview time for the entire institution if the Warden 
determines that the interviews are imposing

[[Page 523]]

a serious drain on staff or use of the facilities;
    (3) Limit to one one-hour interview per month for an inmate in 
segregation, restricted, holdover, control unit, or hospital status if 
required by special security, custodial, or supervisory needs; and
    (4) Limit the amount of audio, video, and film equipment or number 
of media personnel entering the institution if the Warden determines 
that the requested equipment or personnel would create a disruption 
within the institution.
    (i) In conjunction with the personal interview, if the member of the 
media wishes to tour the institution, he or she must comply with the 
provisions of Sec. 540.61.
    (j) Interviews are not subject to auditory supervision.



Sec. 540.64  Press pools.

    (a) The Warden may establish a press pool whenever he or she 
determines that the frequency of requests for interviews and visits 
reaches a volume that warrants limitations.
    (b) Whenever the Warden establishes a press pool, the Warden shall 
notify all news media representatives who have requested interviews or 
visits that have not been conducted. Selected representatives are 
admitted to the institution to conduct the interviews under the specific 
guidelines established by the Warden.
    (c) All members of the press pool are selected by their peers and 
consist of not more than one representative from each of the following 
groups:
    (1) The national and international news services;
    (2) The television and radio networks and outlets;
    (3) The news magazines and newspapers; and
    (4) All media in the local community where the institution is 
located. If no interest has been expressed by one or more of these 
groups, no representative from such group need be selected.
    (d) All news material generated by such a press pool is made 
available to all media without right of first publication or broadcast.



Sec. 540.65  Release of information.

    (a) The Warden shall promptly make announcements stating the facts 
of unusual, newsworthy incidents to local news media. Examples are 
deaths, inside escapes, and institution emergencies.
    (b) The Warden shall provide information about an inmate that is a 
matter of public record to the representatives of the media upon 
request. The information is limited to the inmate's:
    (1) Name;
    (2) Register number;
    (3) Place of incarceration;
    (4) Age;
    (5) Race;
    (6) Conviction and sentencing data: this includes the offense(s) for 
which convicted, the court where convicted, the date of sentencing, the 
length of sentence(s), the amount of good time earned, the parole 
eligibility date and parole release (presumptive or effective) date, and 
the date of expiration of sentence, and includes previous Federal, 
state, and local convictions;
    (7) Past movement via transfers or writs;
    (8) General institutional assignments.
    (c) Information in paragraphs (b)(1) through (8) of this section may 
not be released if confidential for protection cases.
    (d) A request for additional information concerning an inmate by a 
representative of the news media is referred to the Public Information 
Officer, Central Office, Washington, DC.
    (e) The Public Information Officer, Central Office, Washington, DC 
shall release all announcements related to:
    (1) Bureau of Prisons policy;
    (2) Changes in an institutional mission;
    (3) Type of inmate population; or
    (4) Changes in executive personnel.



                    Subpart F--Incoming Publications



Sec. 540.70  Purpose and scope.

    Except when precluded by statute (see Sec. 540.72), the Bureau of 
Prisons permits an inmate to subscribe to or to receive publications 
without prior approval and has established procedures

[[Page 524]]

to determine if an incoming publication is detrimental to the security, 
discipline, or good order of the institution or if it might facilitate 
criminal activity. The term publication, as used in this subpart, means 
a book, booklet, pamphlet, or similar document, or a single issue of a 
magazine, periodical, newsletter, newspaper, plus such other materials 
addressed to a specific inmate such as advertising brochures, flyers, 
and catalogs.

[61 FR 57568, Nov. 6, 1996]



Sec. 540.71  Procedures.

    (a)(1) At all Bureau institutions, an inmate may receive hardcover 
publications and newspaper only from the publisher, from a book club, or 
from a bookstore.
    (2) At medium security, high security, and administrative 
institutions, an inmate may receive softcover publications (for example, 
paperback books, newspaper, clippings, magazines, and other similar 
items) only from the publisher, from a book club, or from a bookstore.
    (3) At minimum security and low security institutions, an inmate any 
receive softcover publications (other than newspapers) from any source.
    (4) The Unit Manager may make an exception to the provisions of 
paragraphs (a)(1) and (2) of this section of the publication is no 
longer available from the publisher, book club, or bookstore. The Unit 
Manager shall require that the inmate provide written documentation that 
the publication is no longer available from these sources. The approval 
or disapproval of any request for an exception is to be documented, in 
writing, on an Authorization to Receive a Package form which will be 
used to secure the item.
    (b) The Warden may reject a publication only if it is determined 
detrimental to the security, good order, or discipline of the 
institution or if it might facilitate criminal activity. The Warden may 
not reject a publication solely because its content is religious, 
philosophical, political, social or sexual, or because its content is 
unpopular or repugnant. Publications which may be rejected by a Warden 
include but are not limited to publications which meet one of the 
following criteria:
    (1) It depicts or describes procedures for the construction or use 
of weapons, ammunition, bombs or incendiary devices;
    (2) It depicts, encourages, or describes methods of escape from 
correctional facilities, or contains blueprints, drawings or similar 
descriptions of Bureau of Prisons institutions;
    (3) It depicts or describes procedures for the brewing of alcoholic 
beverages, or the manufacture of drugs;
    (4) It is written in code;
    (5) It depicts, describes or encourages activities which may lead to 
the use of physical violence or group disruption;
    (6) It encourages or instructs in the commission of criminal 
activity;
    (7) It is sexually explicit material which by its nature or content 
poses a threat to the security, good order, or discipline of the 
institution, or facilitates criminal activity.
    (c) The Warden may not establish an excluded list of publications. 
This means the Warden shall review the individual publication prior to 
the rejection of that publication. Rejection of several issues of a 
subscription publication is not sufficient reason to reject the 
subscription publication in its entirety.
    (d) Where a publication is found unacceptable, the Warden shall 
promptly advise the inmate in writing of the decision and the reasons 
for it. The notice must contain reference to the specific article(s) or 
material(s) considered objectionable. The Warden shall permit the inmate 
an opportunity to review this material for purposes of filing an appeal 
under the Administrative Remedy Program unless such review may provide 
the inmate with information of a nature which is deemed to pose a threat 
or detriment to the security, good order or discipline of the 
institution or to encourage or instruct in criminal activity.
    (e) The Warden shall provide the publisher or sender of an 
unacceptable publication a copy of the rejection letter. The Warden 
shall advise the publisher or sender that he may obtain an independent 
review of the rejection by writing to the Regional Director within 20 
days of receipt of the rejection letter. The Warden shall return the 
rejected publication to the publisher or

[[Page 525]]

sender of the material unless the inmate indicates an intent to file an 
appeal under the Administrative Remedy Program, in which case the Warden 
shall retain the rejected material at the institution for review. In 
case of appeal, if the rejection is sustained, the rejected publication 
shall be returned when appeal or legal use is completed.
    (f) The Warden may set limits locally (for fire, sanitation or 
housekeeping reasons) on the number or volume of publications an inmate 
may receive or retain in his quarters. The Warden may authorize an 
inmate additional storage space for storage of legal materials in 
accordance with the Bureau of Prisons procedures on personal property of 
inmates.

[44 FR 38260, June 29, 1979, as amended at 47 FR 55130, Dec. 7, 1982; 50 
FR 411, Jan. 3, 1985; 61 FR 57568, Nov. 6, 1996; 67 FR 77164, Dec. 17, 
2002]



Sec. 540.72  Statutory restrictions requiring return of commercially published information or material which is sexually explicit or features nudity.

    (a) When commercially published information or material may not be 
distributed by staff or made available to inmates due to statutory 
restrictions (for example, a prohibition on the use of appropriated 
funds to distribute or make available to inmates information or material 
which is sexually explicit or features nudity), the Warden or designee 
shall return the information or material to the publisher or sender. The 
Warden or designee shall advise the publisher or sender that an 
independent review of the decision may be obtained by writing to the 
Regional Director within 20 days of receipt of the notification letter. 
Staff shall provide the inmate with written notice of the action.
    (b) Definitions. For the purpose of this section:
    (1) Commercially published information or material means any book, 
booklet, pamphlet, magazine, periodical, newsletter, photograph or other 
pictorial depiction, or similar document, including stationery and 
greeting cards, published by any individual, organization, company, or 
corporation which is distributed or made available through any means or 
media for a commercial purpose. This definition includes any portion 
extracted, photocopied, or clipped from such items.
    (2) Nudity means a pictorial depiction where genitalia or female 
breasts are exposed.
    (3) Features means the publication contains depictions of nudity or 
sexually explicit conduct on a routine or regular basis or promotes 
itself based upon such depictions in the case of individual one-time 
issues. Publications containing nudity illustrative of medical, 
educational, or anthropological content may be excluded from this 
definition.
    (4) Sexually explicit means a pictorial depiction of actual or 
simulated sexual acts including sexual intercourse, oral sex, or 
masturbation.

[61 FR 57569, Nov. 6, 1996, as amended at 67 FR 77427, Dec. 18, 2002]

Subparts G-H [Reserved]



              Subpart I--Telephone Regulations for Inmates

    Source: 44 FR 38249, June 29, 1979, unless otherwise noted.



Sec. 540.100  Purpose and scope.

    (a) The Bureau of Prisons extends telephone privileges to inmates as 
part of its overall correctional management. Telephone privileges are a 
supplemental means of maintaining community and family ties that will 
contribute to an inmate's personal development. An inmate may request to 
call a person of his or her choice outside the institution on a 
telephone provided for that purpose. However, limitations and conditions 
may be imposed upon an inmate's telephone privileges to ensure that 
these are consistent with other aspects of the Bureau's correctional 
management responsibilities. In addition to the procedures set forth in 
this subpart, inmate telephone use is subject to those limitations which 
the Warden determines are necessary to ensure the security or good 
order, including discipline, of the institution or to protect the 
public. Restrictions on

[[Page 526]]

inmate telephone use may also be imposed as a disciplinary sanction (see 
28 CFR part 541).
    (b) Except as provided in this rule, the Warden shall permit an 
inmate who has not been restricted from telephone use as the result of a 
specific institutional disciplinary sanction to make at least one 
telephone call each month.

[59 FR 15824, Apr. 4, 1994, as amended at 61 FR 90, Jan. 2, 1996]



Sec. 540.101  Procedures.

    (a) Telephone list preparation. An inmate telephone call shall 
ordinarily be made to a number identified on the inmate's official 
telephone list. This list ordinarily may contain up to 30 numbers. The 
Associate Warden may authorize the placement of additional numbers on an 
inmate's telephone list based on the inmate's individual situation, 
e.g., size of family.
    (1) During the admission and orientation process, an inmate who 
chooses to have telephone privileges shall prepare a proposed telephone 
list. At the time of submission, the inmate shall acknowledge that, to 
the best of the inmate's knowledge, the person or persons on the list 
are agreeable to receiving the inmate's telephone call and that the 
proposed calls are to be made for a purpose allowable under Bureau 
policy or institution guidelines.
    (2) Except as provided in paragraph (a)(3) of this section, 
telephone numbers requested by an inmate will ordinarily be placed on 
the inmate's telephone list. When an inmate requests the placement of 
numbers for persons other than for immediate family or those persons 
already approved for the inmate's visiting list, staff ordinarily will 
notify those persons in writing that their numbers have been placed on 
the inmate's telephone list. The notice advises the recipient that the 
recipient's number will be removed from the list if the recipient makes 
a written request to the institution, or upon the written request of the 
inmate, or as provided in paragraph (a)(3) of this section.
    (3) The Associate Warden may deny placement of a telephone number on 
an inmate's telephone list if the Associate Warden determines that there 
is a threat to institution security or good order, or a threat to the 
public. Any disapproval must be documented in writing to both the inmate 
and the proposed recipient. As with concerns about any correctional 
issue, including any portion of these telephone regulations, an inmate 
may appeal the denial through the administrative remedy procedure (see 
28 CFR part 542). The Associate Warden will notify the denied recipient 
that he or she may appeal the denial by writing to the Warden within 15 
days of the receipt of the denial.
    (b) Telephone list update. Each Warden shall establish procedures to 
allow an inmate the opportunity to submit telephone list changes on at 
least a quarterly basis.
    (c) Telephone access codes. An inmate may not possess another 
inmate's telephone access code number. An inmate may not give his or her 
telephone access code number to another inmate, and is to report a 
compromised telephone access code number immediately to unit staff.
    (d) Placement and duration of telephone call. The placement and 
duration of any telephone call is subject to availability of inmate 
funds. Ordinarily, an inmate who has sufficient funds is allowed at 
least three minutes for a telephone call. The Warden may limit the 
maximum length of telephone calling based on the situation at that 
institution (e.g., institution population or usage demand).
    (e) Exception. The Warden may allow the placement of collect calls 
for good cause. Examples of good cause include, but are not limited to, 
inmates who are new arrivals to the institution, including new 
commitments and transfers; inmates confined at Metropolitan Correctional 
Centers, Metropolitan Detention Centers, or Federal Detention Centers; 
pretrial inmates; inmates in holdover status; inmates who are without 
funds (see Sec. 540.105(b)); and in cases of family emergencies.

[59 FR 15824, Apr. 4, 1994]



Sec. 540.102  Monitoring of inmate telephone calls.

    The Warden shall establish procedures that enable monitoring of 
telephone conversations on any telephone located within the institution, 
said

[[Page 527]]

monitoring to be done to preserve the security and orderly management of 
the institution and to protect the public. The Warden must provide 
notice to the inmate of the potential for monitoring. Staff may not 
monitor an inmate's properly placed call to an attorney. The Warden 
shall notify an inmate of the proper procedures to have an unmonitored 
telephone conversation with an attorney.

[48 FR 24622, June 1, 1983. Redesignated at 59 FR 15824, Apr. 4, 1994]



Sec. 540.103  Inmate telephone calls to attorneys.

    The Warden may not apply frequency limitations on inmate telephone 
calls to attorneys when the inmate demonstrates that communication with 
attorneys by correspondence, visiting, or normal telephone use is not 
adequate.

[44 FR 38249, June 29, 1979. Redesignated at 59 FR 15824, Apr. 4, 1994]



Sec. 540.104  Responsibility for inmate misuse of telephones.

    The inmate is responsible for any misuse of the telephone. The 
Warden shall refer incidents of unlawful inmate telephone use to law 
enforcement authorities. The Warden shall advise an inmate that 
violation of the institution's telephone regulations may result in 
institutional disciplinary action (See part 541, subpart B).

[44 FR 38249, June 29, 1979. Redesignated at 59 FR 15824, Apr. 4, 1994]



Sec. 540.105  Expenses of inmate telephone use.

    (a) An inmate is responsible for the expenses of inmate telephone 
use. Such expenses may include a fee for replacement of an inmate's 
telephone access code that is used in an institution which has 
implemented debit billing for inmate telephone calls. Each inmate is 
responsible for staying aware of his or her account balance through the 
automated process provided by the system. Third party billing and 
electronic transfer of a call to a third party are prohibited.
    (b) The Warden shall provide at least one collect call each month 
for an inmate who is without funds. An inmate without funds is defined 
as an inmate who has not had a trust fund account balance of $6.00 for 
the past 30 days. The Warden may increase the number of collect calls 
based upon local institution conditions (e.g., institution population, 
staff resources, and usage demand). To prevent abuses of this provision 
(e.g., inmate shows a pattern of depleting his or her commissary funds 
prior to placing collect calls), the Warden may impose restrictions on 
the provisions of this paragraph (b).
    (c) [Reserved]
    (d) The Warden may direct the government to bear the expense of 
inmate telephone use or allow a call to be made collect under compelling 
circumstances such as when an inmate has lost contact with his family or 
has a family emergency.

[59 FR 15824, Apr. 4, 1994, as amended at 60 FR 240, Jan. 3, 1995; 61 FR 
90, Jan. 2, 1996]



PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS--Table of Contents




                           Subpart A--General

Sec.
541.2  Definitions.

         Subpart B--Inmate Discipline and Special Housing Units

541.10  Purpose and scope.
541.11  Notice to inmate of Bureau of Prisons rules.
541.12  Inmate rights and responsibilities.
541.13  Prohibited acts and disciplinary severity scale.
541.14  Incident report and investigation.
541.15  Initial hearing.
541.16  Establishment and functioning of the Discipline Hearing Officer.
541.17  Procedures before the Discipline Hearing Officer.
541.18  Dispositions of the Discipline Hearing Officer.
541.19  Appeals from Unit Discipline Committee or Discipline Hearing 
          Officer actions.
541.20  Justification for placement in disciplinary segregation and 
          review of inmates in disciplinary segregation.
541.21  Conditions of disciplinary segregation.
541.22  Administrative detention.
541.23  Protection cases.

Subpart C [Reserved]

[[Page 528]]

                    Subpart D--Control Unit Programs

541.40  Purpose and scope.
541.41  Institutional referral.
541.42  Designation of Hearing Administrator.
541.43  Hearing procedure.
541.44  Decision of the Hearing Administrator.
541.45  Executive Panel review and appeal.
541.46  Programs and services.
541.47  Admission to control unit.
541.48  Search of control unit inmates.
541.49  Review of control unit placement.
541.50  Release from a control unit.

  Subpart E--Procedures for Handling of HIV Positive Inmates Who Pose 
                            Danger to Others

541.60  Purpose and scope.
541.61  Standard for placement in controlled housing status.
541.62  Referral for placement.
541.63  Hearing procedure.
541.64  Decision of the Hearing Administrator.
541.65  Regional Director review and appeal.
541.66  Programs and services.
541.67  Review of controlled housing status.
541.68  Release from controlled housing status.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 4161-4166 (Repealed as to offenses committed on or 
after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to 
offenses committed after that date), 5039; 28 U.S.C. 509, 510.



                           Subpart A--General



Sec. 541.2  Definitions.

    (a) Investigating Officer. The term Investigating Officer refers to 
an employee of supervisory level who conducts the investigation 
concerning alleged charge(s) of inmate misconduct. The Investigating 
Officer may not be the employee reporting the incident, or one who was 
involved in the incident in question.
    (b) Unit Discipline Committee (UDC). The term Unit Disciplinary 
Committee (UDC) refers to one or more institution staff members 
delegated by the Warden the authority and duty to hold an initial 
hearing upon completion of the investigation concerning alleged 
charge(s) of inmate misconduct. The Warden shall authorize these staff 
members to impose minor sanctions (G through P) for violation of 
prohibited act(s).
    (c) Discipline Hearing Officer (DHO). This term refers to a one-
person, independent, discipline hearing officer who is responsible for 
conducting Institution Discipline Hearings and who imposes appropriate 
sanctions for incidents of inmate misconduct referred for disposition 
following the hearing required by Sec. 541.15 before the UDC.
    (d) Segregation Review Official (SRO). The term Segregation Review 
Official refers to the individual at each Bureau of Prisons institution 
assigned to review the status of each inmate housed in disciplinary 
segregation and administrative detention, as required in Secs. 541.20 
and 541.22 of this rule.

[53 FR 197, Jan. 5, 1988]



         Subpart B--Inmate Discipline and Special Housing Units

    Source: 53 FR 197, Jan. 5, 1988, unless otherwise noted.



Sec. 541.10  Purpose and scope.

    (a) So that inmates may live in a safe and orderly environment, it 
is necessary for institution authorities to impose discipline on those 
inmates whose behavior is not in compliance with Bureau of Prisons 
rules. The provisions of this rule apply to all persons committed to the 
care, custody, and control (direct or constructive) of the Bureau of 
Prisons.
    (b) The following general principles apply in every disciplinary 
action taken:
    (1) Only institution staff may take disciplinary action.
    (2) Staff shall take disciplinary action at such times and to the 
degree necessary to regulate an inmate's behavior within Bureau rules 
and institution guidelines and to promote a safe and orderly institution 
environment.
    (3) Staff shall control inmate behavior in a completely impartial 
and consistent manner.
    (4) Disciplinary action may not be capricious or retaliatory.
    (5) Staff may not impose or allow imposition of corporal punishment 
of any kind.

[[Page 529]]

    (6) If it appears at any stage of the disciplinary process that an 
inmate is mentally ill, staff shall refer the inmate to a mental health 
professional for determination of whether the inmate is responsible for 
his conduct or is incompetent. Staff may take no disciplinary action 
against an inmate whom mental health staff determines to be incompetent 
or not responsible for his conduct.
    (i) A person is not responsible for his conduct if, at the time of 
the conduct, the person, as a result of a severe mental disease or 
defect, was unable to appreciate the nature and quality or the 
wrongfulness of his acts. When a person is determined not responsible 
for his conduct, the Incident Report is to show as a finding that the 
person did not commit the prohibited act because that person was found 
not to be mentally responsible for his conduct.
    (ii) A person is incompetent if that person lacks the ability to 
understand the nature of the disciplinary proceedings, or to assist in 
his defense at the proceedings. When a person is determined incompetent, 
the disciplinary proceedings shall be postponed until such time as the 
inmate is able to understand the nature of the disciplinary proceedings 
and to assist in his defense at those proceedings. If competency is not 
restored within a reasonable period of time, the Incident Report is to 
show as a finding that the inmate is incompetent to assist in his or her 
defense at the disciplinary proceedings.



Sec. 541.11  Notice to inmate of Bureau of Prisons rules.

    Staff shall advise each inmate in writing promptly after arrival at 
an institution of:
    (a) The types of disciplinary action which may be taken by 
institution staff;
    (b) The disciplinary system within the institution and the time 
limits thereof (see tables 1 and 2);
    (c) The inmate's rights and responsibilities (see Sec. 541.12);
    (d) Prohibited acts and disciplinary severity scale (see 
Sec. 541.13, tables 3, 4, and 5); and
    (e) Sanctions by severity of prohibited act, with eligibility for 
restoration of forfeited and withheld statutory good time (see table 6).

[[Page 530]]

[GRAPHIC] [TIFF OMITTED] TC21OC91.030


[[Page 531]]


[GRAPHIC] [TIFF OMITTED] TC21OC91.031


[[Page 532]]





Sec. 541.12  Inmate rights and responsibilities.

------------------------------------------------------------------------
                  Rights                          Responsibilities
------------------------------------------------------------------------
1. You have the right to expect that as a  1. You have the
 human being you will be treated            responsibility to treat
 respectfully, impartially, and fairly by   others, both employees and
 all personnel.                             inmates, in the same manner.
2. You have the right to be informed of    2. You have the
 the rules, procedures, and schedules       responsibility to know and
 concerning the operation of the            abide by them.
 institution.
3. You have the right to freedom of        3. You have the
 religious affiliation, and voluntary       responsibility to recognize
 religious worship.                         and respect the rights of
                                            others in this regard.
4. You have the right to health care,      4. It is your responsibility
 which includes nutritious meals, proper    not to waste food, to follow
 bedding and clothing, and a laundry        the laundry and shower
 schedule for cleanliness of the same, an   schedule, to maintain neat
 opportunity to shower regularly, proper    and clean living quarters,
 ventilation for warmth and fresh air, a    to keep your area free of
 regular exercise period, toilet articles   contraband, and to seek
 and medical and dental treatment.          medical and dental care as
                                            you may need it.
5. You have the right to visit and         5. It is your responsibility
 correspond with family members, and        to conduct yourself properly
 friends, and correspond with members of    during visits, not to accept
 the news media in keeping with Bureau      or pass contraband, and not
 rules and institution guidelines.          to violate the law or Bureau
                                            rules or institution
                                            guidelines through your
                                            correspondence.
6. You have the right to unrestricted and  6. You have the responsibity
 confidential access to the courts by       to present honestly and
 correspondence (on matters such as the     fairly your petitions,
 legality of your conviction, civil         questions, and problems to
 matters, pending criminal cases, and       the court.
 conditions of your imprisonment).
7. You have the right to legal counsel     7. It is your responsibility
 from an attorney of your choice by         to use the services of an
 interviews and correspondence.             attorney honestly and
                                            fairly.
8. You have the right to participate in    8. It is your responsibility
 the use of law library reference           to use these resources in
 materials to assist you in resolving       keeping with the procedures
 legal problems. You also have the right    and schedule prescribed and
 to receive help when it is available       to respect the rights of
 through a legal assistance program.        other inmates to the use of
                                            the materials and
                                            assistance.
9. You have the right to a wide range of   9. It is your responsibility
 reading materials for educational          to seek and utilize such
 purposes and for your own enjoyment.       materials for your personal
 These materials may include magazines      benefit, without depriving
 and newspapers sent from the community,    others of their equal rights
 with certain restrictions.                 to the use of this material.
10. You have the right to participate in   10. You have the responsibity
 education, vocational training and         to take advantage of
 employment as far as resources are         activities which may help
 available, and in keeping with your        you live a successful and
 interests, needs, and abilities.           law-abiding life within the
                                            institution and in the
                                            community. You will be
                                            expected to abide by the
                                            regulations governing the
                                            use of such activities.
11. You have the right to use your funds   11. You have the
 for commissary and other purchases,        responsibility to meet your
 consistent with institution security and   financial and legal
 good order, for opening bank and/or        obligations, including, but
 savings accounts, and for assisting your   not limited to, court-
 family.                                    imposed assessments, fines,
                                            and restitution. You also
                                            have the responsibility to
                                            make use of your funds in a
                                            manner consistent with your
                                            release plans, your family
                                            needs, and for other
                                            obligations that you may
                                            have.
------------------------------------------------------------------------



Sec. 541.13  Prohibited acts and disciplinary severity scale.

    (a) There are four categories of prohibited acts--Greatest, High, 
Moderate,

[[Page 533]]

and Low Moderate (see table 3 for identification of the prohibited acts 
within each category). Specific sanctions are authorized for each 
category (see table 4 for a discussion of each sanction). Imposition of 
a sanction requires that the inmate first is found to have committed a 
prohibited act.
    (1) Greatest category offenses. The Discipline Hearing Officer (DHO) 
shall impose and execute one or more of sanctions A through E. Sanction 
B.1 must be imposed for a VCCLEA inmate rated as violent (i.e., an 
inmate who, as specified in the Violent Crime Control and Law 
Enforcement Act of 1994, committed a crime of violence on or after 
September 13, 1994) and for a PLRA inmate (i.e., an inmate who has been 
sentenced for an offense committed on or after April 26, 1996). The DHO 
may impose and execute sanction F and/or G only in addition to execution 
of one or more of sanctions A through E. Except as noted in the 
sanction, the DHO may also suspend one or more additional sanctions A 
through G.
    (2) High category offenses. The Discipline Hearing Officer shall 
impose and execute one or more of sanctions A through M, and, except as 
noted in the sanction, may also suspend one or more additional sanctions 
A through M. Sanction B.1 must be imposed for a VCCLEA inmate rated as 
violent and for a PLRA inmate. The Unit Discipline Committee shall 
impose and execute one or more of sanctions G through M, and may also 
suspend one or more additional sanctions G through M, except for a 
VCCLEA inmate rated as violent. All high category offense charges for a 
VCCLEA inmate rated as violent and for a PLRA inmate must be referred to 
the DHO.
    (3) Moderate category offenses. The Discipline Hearing Officer shall 
impose at least one sanction A through N, but, except as noted in the 
sanction, may suspend any sanction or sanctions imposed. Sanction B.1 
ordinarily must be imposed for a VCCLEA inmate rated as violent and for 
a PLRA inmate. Except for charges referred to the DHO, the Unit 
Discipline Committee shall impose at least one sanction G through N, but 
may suspend any sanction or sanctions imposed. The UDC ordinarily shall 
refer to the DHO a moderate category charge for a VCCLEA inmate rated as 
violent or for a PLRA inmate if the inmate had been found to have 
committed a moderate category offense during the inmate's current 
anniversary year (i.e., the twelve month period of time for which an 
inmate may be eligible to earn good conduct time). The UDC must 
thoroughly document in writing the reasons why the charge for such an 
inmate was not referred to the DHO.
    (4) Low moderate category offenses. The Discipline Hearing Officer 
shall impose at least one sanction B.1, or E through P. The Discipline 
Hearing Officer may suspend any E through P sanction or sanctions 
imposed (a B.1 sanction may not be suspended). Except for charges 
referred to the DHO, the Unit Discipline Committee (UDC) shall impose at 
least one sanction G through P, but may suspend any sanction or 
sanctions imposed. The UDC ordinarily shall refer to the DHO a low 
moderate category charge for a VCCLEA inmate rated as violent or for a 
PLRA inmate if the inmate had been found to have committed two low 
moderate category offenses during the inmate's current anniversary year 
(i.e., the twelve month period of time for which an inmate may be 
eligible to earn good conduct time). The UDC must thoroughly document in 
writing the reasons why the charge for such an inmate was not referred 
to the DHO.
    (b) Aiding another person to commit any of these offenses, 
attempting to commit any of these offenses, and making plans to commit 
any of these offenses, in all categories of severity, shall be 
considered the same as a commission of the offense itself. In these 
cases, the letter ``A'' is combined with the offense code. For example, 
planning an escape would be considered as Escape and coded 102A. 
Likewise, attempting the adulteration of any food or drink would be 
coded 209A.
    (c) Suspensions of any sanction cannot exceed six months. Revocation 
and execution of a suspended sanction require that the inmate first is 
found to have committed any subsequent prohibited act. Only the 
Discipline Hearing Officer (DHO) may execute, suspend, or revoke and 
execute suspension

[[Page 534]]

of sanctions A through F. The Discipline Hearing Officer (DHO) or Unit 
Discipline Committee (UDC) may execute, suspend, or revoke and execute 
suspensions of sanctions G through P. Revocations and execution of 
suspensions may be made only at the level (DHO or UDC) which originally 
imposed the sanction. The DHO now has that authority for suspensions 
which were earlier imposed by the Inmate Discipline Committee (IDC).
    (d) If the Unit Discipline Committee has previously imposed a 
suspended sanction and subsequently refers a case to the Discipline 
Hearing Officer, the referral shall include an advisement to the DHO of 
any intent to revoke that suspension if the DHO finds that the 
prohibited act was committed. If the DHO then finds that the prohibited 
act was committed, the DHO shall so advise the Unit Discipline Committee 
who may then revoke the previous suspension.
    (e) The Unit Discipline Committee or Discipline Hearing Officer may 
impose increased sanctions for repeated, frequent offenses according to 
the guidelines presented in table 5.
    (f) Sanctions by severity of prohibited act, with eligibility for 
restoration of forfeited and withheld statutory good time are presented 
in table 6.

        Table 3--Prohibited Acts and Disciplinary Severity Scale
------------------------------------------------------------------------
 Code              Prohibited acts                      Sanctions
------------------------------------------------------------------------
                              GREATEST CATEGORY
 
      The UDC shall refer all Greatest Severity Prohibited Acts to the
         DHO with recommendations as to an appropriate disposition.
 
------------------------------------------------------------------------
      Killing      100                        A. Recommend parole date
      Assaulting any person (includes          rescission or
       sexual assault) or an armed             retardation.
       assault on the institution's           B. Forfeit earned
       secure perimeter (a charge for          statutory good time or
       assaulting any person at this           non-vested good conduct
       level is to be used only when           time (up to 100%) and/
       serious physical injury has been        or terminate or
       attempted or carried out by an          disallow extra good
       inmate)                                 time (an extra good
      Escape from escort; escape from a        time or good conduct
       secure institution (low, medium,        time sanction may not
       and high security level and             be suspended).
       administrative institutions); or       B.1  Disallow ordinarily
       escape from a minimum                   between 50 and 75% (27-
       institution with violence               41 days) of good
      Setting a fire (charged with this        conduct time credit
       act in this category only when          available for year (a
       found to pose a threat to life          good conduct time
       or a threat of serious bodily           sanction may not be
       harm or in furtherance of a             suspended).
       prohibited act of Greatest             C. Disciplinary Transfer
       Severity, e.g., in furtherance          (recommend).
       of a riot or escape; otherwise         D. Disciplinary
       the charge is properly                  segregation (up to 60
       classified Code 218, or 329)            days).
      Possession, manufacture, or             E. Make monetary
       introduction of a gun, firearm,         restitution.
       weapon, sharpened instrument,          F. Withhold statutory
       knife, dangerous chemical,              good time (Note--can be
       explosive or any ammunition             in addition to A
      Rioting                                  through E--cannot be
      Encouraging others to riot               the only sanction
      Taking hostage(s)                        executed).
      Possession, manufacture, or             G. Loss of privileges
       introduction of a hazardous tool        (Note--can be in
       (Tools most likely to be used in        addition to A through E-
       an escape or escape attempt or          -cannot be the only
       to serve as weapons capable of          sanction executed).
       doing serious bodily harm to
       others; or those hazardous to
       institutional security or
       personal safety; e.g., hack-saw
       blade)
      (Not to be used)
      Refusing to provide a urine
       sample or to take part in other
       drug-abuse testing
      Introduction of any narcotics,
       marijuana, drugs, or related
       paraphernalia not prescribed for
       the individual by the medical
       staff
      Use of any narcotics, marijuana,
       drugs, or related paraphernalia
       not prescribed for the
       individual by the medical staff
      Possession of any narcotics,
       marijuana, drugs, or related
       paraphernalia not prescribed for
       the individual by the medical
       staff
      Use of the telephone to further
       criminal activity
      Interfering with a staff member
       in the performance of duties.
       (Conduct must be of the Greatest
       Severity nature.) This charge is
       to be used only when another
       charge of greatest severity is
       not applicable

[[Page 535]]

 
      Conduct which disrupts or
       interferes with the security or
       orderly running of the
       institution or the Bureau of
       Prisons. (Conduct must be of the
       Greatest Severity nature.) This
       charge is to be used only when
       another charge of greatest
       severity is not applicable
                                HIGH CATEGORY
 
------------------------------------------------------------------------
      Escape from unescorted Community        A. Recommend parole date
       Programs and activities and Open        rescission or
       Institutions (minimum) and from         retardation.
       outside secure institutions--          B. Forfeit earned
       without violence                        statutory good time or
      Fighting with another person             non-vested good conduct
      (Not to be used)                         time up to 50% or up to
      Threatening another with bodily          60 days, whichever is
       harm or any other offense               less, and/or terminate
      Extortion, blackmail, protection:        or disallow extra good
       Demanding or receiving money or         time (an extra good
       anything of value in return for         time or good conduct
       protection against others, to           time sanction may not
       avoid bodily harm, or under             be suspended).
       threat of informing                    B.1  Disallow ordinarily
      Engaging in sexual acts                  between 25 and 50% (14-
      Making sexual proposals or               27 days) of good
       threats to another                      conduct time credit
      Wearing a disguise or a mask             available for year (a
      Possession of any unauthorized           good conduct time
       locking device, or lock pick, or        sanction may not be
       tampering with or blocking any          suspended).
       lock device (includes keys), or        C. Disciplinary transfer
       destroying, altering,                   (recommend).
       interfering with, improperly           D. Disciplinary
       using, or damaging any security         segregation (up to 30
       device, mechanism, or procedure         days).
      Adulteration of any food or drink       E. Make monetary
      (Not to be used)                         restitution.
      Possessing any officer's or staff       F. Withhold statutory
       clothing                                good time.
      Engaging in, or encouraging a           G. Loss of privileges:
       group demonstration                     commissary, movies,
      Encouraging others to refuse to          recreation, etc.
       work, or to participate in a           H. Change housing
       work stoppage                           (quarters).
      (Not to be used)                        I. Remove from program
      Introduction of alcohol into BOP         and/or group activity.
       facility                               J. Loss of job.
      Giving or offering an official or       K. Impound inmate's
       staff member a bribe, or                personal property.
       anything of value                      L. Confiscate
      Giving money to, or receiving            contraband.
       money from, any person for             M. Restrict to quarters.
       purposes of introducing
       contraband or for any other
       illegal or prohibited purposes
      Destroying, altering, or damaging
       government property, or the
       property of another person,
       having a value in excess of
       $100.00 or destroying, altering,
       or damaging life-safety devices
       (e.g., fire alarm) regardless of
       financial value
      Stealing (theft; this includes
       data obtained through the
       unauthorized use of a
       communications facility, or
       through the unauthorized access
       to disks, tapes, or computer
       printouts or other automated
       equipment on which data is
       stored.)
      Demonstrating, practicing, or
       using martial arts, boxing
       (except for use of a punching
       bag), wrestling, or other forms
       of physical encounter, or
       military exercises or drill
       (except for drill authorized and
       conducted by staff)
      Being in an unauthorized area
       with a person of the opposite
       sex without staff permission
      Making, possessing, or using
       intoxicants
      Refusing to breathe into a
       breathalyzer or take part in
       other testing for use of alcohol
      Assaulting any person (charged
       with this act only when a less
       serious physical injury or
       contact has been attempted or
       carried out by an inmate)
      Use of the telephone for abuses
       other than criminal activity
       (e.g., circumventing telephone
       monitoring procedures,
       possession and/or use of another
       inmate's PIN number; third-party
       calling; third-party billing;
       using credit card numbers to
       place telephone calls,
       conference calling; talking in
       code)

[[Page 536]]

 
      Interfering with a staff member
       in the performance of duties.
       (Conduct must be of the High
       Severity nature.) This charge is
       to be used only when another
       charge of high severity is not
       applicable
      Conduct which disrupts or
       interferes with the security or
       orderly running of the
       institution or the Bureau of
       Prisons. (Conduct must be of the
       High Severity nature.) This
       charge is to be used only when
       another charge of high severity
       is not applicable
 
------------------------------------------------------------------------
                              MODERATE CATEGORY
 
------------------------------------------------------------------------
      Indecent exposure                       A. Recommend parole date
      (Not to be used)                         rescission or
      Misuse of authorized medication          retardation.
      Possession of money or currency,        B. Forfeit earned
       unless specifically authorized,         statutory good time or
       or in excess of the amount              non-vested good conduct
       authorized                              time up to 25% or up to
      Loaning of property or anything          30 days, whichever is
       of value for profit or increased        less, and/or terminate
       return      306                         or disallow extra good
      Possession of anything not               time (an extra good
       authorized for retention or             time or good conduct
       receipt by the inmate, and not          time sanction may not
       issued to him through regular           be suspended).
       channels                               B.1  Disallow ordinarily
      Refusing to work, or to accept a         up to 25% (1-14 days)
       program assignment                      of good conduct time
      Refusing to obey an order of any         credit available for
       staff member (May be categorized        year (a good conduct
       and charged in terms of greater         time sanction may not
       severity, according to the              be suspended).
       nature of the order being              C. Disciplinary transfer
       disobeyed; e.g., failure to obey        (recommend).
       an order which furthers a riot         D. Disciplinary
       would be charged as 105,                segregation (up to 15
       Rioting; refusing to obey an            days).
       order which furthers a fight           E. Make monetary
       would be charged as 201,                restitution.
       Fighting; refusing to provide a        F. Withhold statutory
       urine sample when ordered would         good time.
       be charged as Code 110                 G. Loss of privileges:
      Violating a condition of a               commissary, movies,
       furlough                                recreation, etc.
      Violating a condition of a              H. Change housing
       community program                       (quarters).
      Unexcused absence from work or          I. Remove from program
       any assignment                          and/or group activity.
      Failing to perform work as              J. Loss of job.
       instructed by the supervisor           K. Impound inmate's
      Insolence towards a staff member         personal property.
      Lying or providing a false              L. Confiscate
       statement to a staff member.            contraband.
      Counterfeiting, forging or              M. Restrict to quarters.
       unauthorized reproduction of any       N. Extra duty.
       document, article of
       identification, money, security,
       or official paper. (May be
       categorized in terms of greater
       severity according to the nature
       of the item being reproduced;
       e.g., counterfeiting release
       papers to effect escape, Code
       102 or Code 200)
 
      Participating in an unauthorized
       meeting or gathering
 
      Being in an unauthorized area
 
      Failure to follow safety or
       sanitation regulations
 
      Using any equipment or machinery
       which is not specifically
       authorized
 
      Using any equipment or machinery
       contrary to instructions or
       posted safety standards
 
      Failing to stand count
 
      Interfering with the taking of
       count
 
      (Not to be used)
 
      (Not to be used)
 
      Gambling     324
 
      Preparing or conducting a
       gambling pool
 
      Possession of gambling
       paraphernalia
 
      Unauthorized contacts with the
       public
 
      Giving money or anything of value
       to, or accepting money or
       anything of value from: another
       inmate, or any other person
       without staff authorization
 
      Destroying, altering, or damaging
       government property, or the
       property of another person,
       having a value of $100.00 or
       less
 

[[Page 537]]

 
      Being unsanitary or untidy;
       failing to keep one's person and
       one's quarters in accordance
       with posted standards
 
      Possession, manufacture, or
       introduction of a non-hazardous
       tool or other non-hazardous
       contraband (Tool not likely to
       be used in an escape or escape
       attempt, or to serve as a weapon
       capable of doing serious bodily
       harm to others, or not hazardous
       to institutional security or
       personal safety; Other non-
       hazardous contraband includes
       such items as food or
       cosmetics).
      Smoking where prohibited
      Use of the telephone for abuses
       other than criminal activity
       (e.g., conference calling,
       possession and/or use of another
       inmate's PIN number, three-way
       calling, providing false
       information for preparation of a
       telephone list).
      Interfering with a staff member
       in the performance of duties.
       (Conduct must be of the Moderate
       Severity nature.) This charge is
       to be used only when another
       charge of moderate severity is
       not applicable.
      Conduct which disrupts or
       interferes with the security or
       orderly running of the
       institution or the Bureau of
       Prisons. (Conduct must be of the
       Moderate Severity nature). This
       charge is to be used only when
       another charge of moderate
       severity is not applicable.
 
                            LOW MODERATE CATEGORY
 
------------------------------------------------------------------------
 
      Possession of property belonging        B.1  Disallow ordinarily
       to another person                       up to 12.5% (1-7 days)
      Possessing unauthorized amount of        of good conduct time
       otherwise authorized clothing           credit available for
      Malingering, feigning illness            year (to be used only
      (Not to be used)                         where inmate found to
      Using abusive or obscene language        have committed a second
      Tattooing or self-mutilation             violation of the same
      (Not to be used)                         prohibited act within 6
      Conduct with a visitor in                months); Disallow
       violation of Bureau regulations         ordinarily up to 25% (1
       (Restriction, or loss for a             14 days) of good
       specific period of time, of             conduct time credit
       these privileges may often be an        available for year (to
       appropriate sanction G)                 be used only where
      Conducting a business                    inmate found to have
      Unauthorized physical contact            committed a third
       (e.g., kissing, embracing)              violation of the same
      Unauthorized use of mail                 prohibited act within 6
       (Restriction, or loss for a             months) (a good conduct
       specific period of time, of             time sanction may not
       these privileges may often be an        be suspended).
       appropriate sanction G) (May be        E. Make monetary
       categorized and charged in terms        restitution.
       of greater severity, according         F. Withhold statutory
       to the nature of the                    good time.
       unauthorized use; e.g., the mail       G. Loss of privileges:
       is used for planning,                   commissary, movies,
       facilitating, committing an             recreation, etc.
       armed assault on the                   H. Change housing
       institution's secure perimeter,         (quarters).
       would be charged as a Code 101         I. Remove from program
       Assault)                                and/or group activity.
      Use of the telephone for abuses         J. Loss of job.
       other than criminal activity           K. Impound inmate's
       (e.g., exceeding the 15-minute          personal property.
       time limit for telephone calls;        L. Confiscate
       using the telephone in an               contraband.
       unauthorized area; placing of an       M. Restrict to quarters.
       unauthorized individual on the         N. Extra duty.
       telephone list)                        O. Reprimand.
      Interfering with a staff member         P. Warning.
       in the performance of duties.
       (Conduct must be of the Low
       Moderate Severity nature.) This
       charge is to be used only when
       another charge of low moderate
       severity is not applicable
      Conduct which disrupts or
       interferes with the security or
       orderly running of the
       institution or the Bureau of
       Prisons (Conduct must be of the
       Low Moderate Severity nature.)
       This charge is to be used only
       when another charge of low
       moderate severity is not
       applicable
 
------------------------------------------------------------------------
      Note: Aiding another person to commit any of these offenses,
        attempting to commit any of these offenses, and making plans to
        commit any of these offenses, in all categories of severity,
        shall be considered the same as a commission of the offense
        itself.


[[Page 538]]

                           Table 4--Sanctions

    1. Sanctions of the Discipline Hearing Officer: (upon finding the 
inmate committed the prohibited act)
    (a) Recommend parole date rescission or retardation. The DHO may 
make recommendations to the U.S. Parole Commission for retardation or 
rescission of parole grants. This may require holding fact-finding 
hearings upon request of or for the use of the Commission.
    (b) Forfeit earned statutory good time, non-vested good conduct 
time, and/or terminate or disallow extra good time. The statutory good 
time available for forfeiture is limited to an amount computed by 
multiplying the number of months served at the time of the offense for 
which forfeiture action is taken, by the applicable monthly rate 
specified in 18 U.S.C. 4161 (less any previous forfeiture or withholding 
outstanding). The amount of good conduct time (GCT) available for 
forfeiture is limited to the total number of days in the ``non-vested'' 
status at the time of the misconduct (less any previous forfeiture). A 
forfeiture of good conduct time sanction may not be suspended. 
Disallowance of extra good time is limited to the extra good time for 
the calendar month in which the violation occurs. It may not be withheld 
or restored. The sanction of termination or disallowance of extra good 
time may not be suspended. Forfeited good conduct time will not be 
restored. Authority to restore forfeited statutory good time is 
delegated to the Warden. This decision may not be delegated lower than 
the Associate Warden level. Limitations on this sanction and eligibility 
for restoration are based on the severity scale. (See table 6)
    (b.1) Disallowance of good conduct time. I. An inmate sentenced 
under the Sentencing Reform Act provisions of the Comprehensive Crime 
Control Act (includes the inmate who committed his or her crime on or 
after November 1, 1987) may not receive statutory good time, but is 
eligible to receive 54 days good conduct time credit each year (18 
U.S.C. 3624(b)). Once awarded, the credit is vested, and may not be 
disallowed. However, for crimes committed on or after September 13, 1994 
and prior to April 26, 1996, credit toward an inmate's service of 
sentence shall not be vested unless the inmate has earned or is making 
satisfactory progress toward a high school diploma or an equivalent 
degree, or has been exempted from participation because of a learning 
disability. For crimes committed on or after April 26, 1996, credit 
toward an inmate's service of sentence shall vest on the date the inmate 
is released from custody. Once disallowed, the credit may not be 
restored, except by immediate review or appeal action as indicated 
below. Prior to this award being made, the credit may be disallowed for 
an inmate found to have committed a prohibited act. A sanction of 
disallowance of good conduct time may not be suspended. Only the DHO can 
take action to disallow good conduct time. The DHO shall consider the 
severity of the prohibited act and the suggested disallowance guidelines 
in making a determination to disallow good conduct time. A decision to 
go above the guideline range is warranted for a greatly aggravated 
offense or where there is a repetitive violation of the same prohibited 
act that occurs within a relatively short time frame (e.g., within 18 
months for the same greatest severity prohibited act, within 12 months 
for the same high severity prohibited act, and within 6 months for the 
same moderate severity prohibited act). A decision to go below the 
guidelines is warranted for strong mitigating factors. Any decision 
outside the suggested disallowance guidelines is to be documented and 
justified in the DHO report.
    II. VCCLEA inmates rated as violent and PLRA inmates will ordinarily 
be disallowed good conduct time for each prohibited act they are found 
to have committed at a DHO hearing, consistent with the following:
    (1) Greatest category offenses: A minimum of 40 days (or, if less 
than 54 days are available for the prorated period, a minimum of 75% of 
available good conduct time) for each act committed;
    (2) High category offenses: A minimum of 27 days (or, if less than 
54 days are available for the prorated period, a minimum of 50% of 
available good conduct time) for each act committed;
    (3) Moderate category offenses: A minimum of 13 days (or, if less 
than 54 days are available for the prorated period, a minimum of 25% of 
available good conduct time) for each act committed if the inmate has 
committed two or more moderate category offenses during the current 
anniversary period;
    (4) Low moderate category offenses: A minimum of 6 days (or, if less 
than 54 days are available for the prorated period, a minimum of 12.5% 
of available good conduct time) for each act committed if the inmate has 
committed three or more low moderate category offenses during the 
current anniversary period.
    However, the DHO may, after careful consideration of mitigating 
factors (seriousness of the offense, the inmate's past disciplinary 
record, the lack of available good conduct time, etc.) choose to impose 
a lesser sanction, or even disallow no GCT for moderate and low moderate 
prohibited acts by VCCLEA inmates rated as violent or by PLRA inmates. 
The DHO must thoroughly detail the rationale for choosing to disallow 
less than 13 days or 6 days respectively. This will be documented in 
Section VII of the DHO report. Disallowances of amounts greater than 13 
days or 6 days respectively will

[[Page 539]]

occur with repetitive offenses consistent with the guidelines in this 
(b.1).
    III. The decision of the DHO is final and is subject only to review 
by the Warden to ensure conformity with the provisions of the 
disciplinary policy and by inmate appeal through the administrative 
remedy program. The DHO is to ensure that the inmate is notified that 
any appeal of a disallowance of good conduct time must be made within 
the time frames established in the Bureau's rule on administrative 
remedy procedures.
    IV. Except for VCCLEA inmates rated as violent or PLRA inmates, 
Sanction B.1 may be imposed on the Low Moderate category only where the 
inmate has committed the same low moderate prohibited act more than one 
time within a six-month period.
    (c) Recommend disciplinary transfer. The DHO may recommend that an 
inmate be transferred to another institution for disciplinary reasons. 
Where a present or impending emergency requires immediate action, the 
Warden may recommend for approval of the Regional Director the transfer 
of an inmate prior to either a UDC or DHO hearing. Transfers for 
disciplinary reasons prior to a hearing before the UDC or DHO may be 
used only in emergency situations and only with approval of the Regional 
Director. When an inmate is transferred under these circumstances, the 
sending institution shall forward copies of incident reports and other 
relevant materials with completed investigation to the receiving 
institution's Discipline Hearing Officer. The inmate shall receive a 
hearing at the receiving institution as soon as practicable under the 
circumstances to consider the factual basis of the charge of misconduct 
and the reasons for the emergency transfer. All procedural requirements 
applicable to UDC or DHO hearings contained in this rule are 
appropriate, except that written statements of unavailable witnesses are 
liberally accepted instead of live testimony.
    (d) Disciplinary segregation. The DHO may direct that an inmate be 
placed or retained in disciplinary segregation pursuant to guidelines 
contained in this rule. Consecutive disciplinary segregation sanctions 
can be imposed and executed for inmates charged with and found to have 
committed offenses that are part of different acts only. Specific limits 
on time in disciplinary segregation are based on the severity scale. 
(See table 6)
    (e) Make monetary restitution. The DHO may direct that an inmate 
reimburse the U.S. Treasury for any damages to U.S. Government property 
that the individual is determined to have caused or contributed to.
    (f) Withholding statutory good time. The DHO may direct that an 
inmate's good time be withheld. Withholding of good time should not be 
applied as a universal punishment to all persons in disciplinary 
segregation status. Withholding is limited to the total amount of good 
time creditable for the single month during which the violation occurs. 
Some offenses, such as refusal to work at an assignment, may be 
recurring, thereby permitting, when ordered by the DHO, consecutive 
withholding actions. When this is the intent, the DHO shall specify at 
the time of the initial DHO hearing that good time may be withheld until 
the inmate elects to return to work. During the running of such a 
withholding order, the DHO shall review the offense with the inmate on a 
monthly basis. For an on-going offense, staff need not prepare a new 
Incident Report or conduct an investigation or initial hearing (UDC). 
The DHO shall provide the inmate an opportunity to appear in person and 
to present a statement orally or in writing. The DHO shall document its 
action on, or by an attachment to, the initial Institution Discipline 
report. If further withholding is ordered, the DHO shall advise the 
inmate of the inmate's right to appeal through the Administrative Remedy 
Procedure (part 542). Only the Warden may restore withheld statutory 
good time. This decision may not be delegated lower than the Associate 
Warden level. Restoration eligibility is based on the severity scale. 
(See table 6)
    2. Sanctions of the Discipline Hearing Officer/Unit Discipline 
Committee: (upon finding the inmate committed the prohibited act)
    (g) Loss of privileges: The DHO or UDC may direct that an inmate 
forego specific privileges for a specified period of time. Ordinarily, 
loss of privileges is used as a sanction in response to an abuse of that 
privilege. However, the DHO or UDC may impose a loss of privilege 
sanction not directly related to the offense when there is a lack of 
other appropriate sanctions or when imposition of an appropriate 
sanction previously has been ineffective.
    (h) Change housing (quarters). The DHO or UDC may direct that an 
inmate be removed from current housing and placed in other housing.
    (i) Remove from program and/or group activity. The DHO or UDC may 
direct that an inmate forego participating in any program or group 
activity for a specified period of time.
    (j) Loss of job. The DHO or UDC may direct that an inmate be removed 
from present job and/or be assigned to another job.
    (k) Impound inmate's personal property. The DHO or UDC may direct 
that an inmate's personal property be stored in the institution (when 
relevant to offense) for a specified period of time.
    (l) Confiscate contraband. The DHO or UDC may direct that any 
contraband in the possession of an inmate be confiscated and disposed of 
appropriately.
    (m) Restrict quarters. The DHO or UDC may direct that an inmate be 
confined to quarters or in its immediate area for a specified period of 
time.

[[Page 540]]

    (n) Extra duty. The DHO or UDC may direct that an inmate perform 
tasks other than those performed during regularly assigned institutional 
job.
    (o) Reprimand. The DHO or UDC may reprimand an inmate either 
verbally or in writing.
    (p) Warning. The DHO or UDC may verbally warn an inmate regarding 
committing prohibited act(s)

                    Table 5--Sanctions for Repetition of Prohibited Acts Within Same Category
    [When the Unit Discipline Committee or DHO finds that an inmate has committed a prohibited act in the Low
 Moderate, Moderate, or High category, and when there has been a repetition of the same offense(s) within recent
  months (offenses for violation of the same code), increased sanctions are authorized to be imposed by the DHO
  according to the following chart. (Note: An informal resolution may not be considered as a prior offense for
                                            purposes of this chart.)]
----------------------------------------------------------------------------------------------------------------
                                       Prior offense (same
              Category                  code) within time     Frequency of repeated       Sanction permitted
                                             period                  offense
----------------------------------------------------------------------------------------------------------------
Low moderate (400 series)..........  6 months..............  2d offense............  Low Moderate Sanctions,
                                                                                      plus
                                                                                     1. Disciplinary
                                                                                      segregation, up to 7 days.
                                                                                     2. Forfeit earned SGT or
                                                                                      non-vested GCT up to 10%
                                                                                      or up to 15 days,
                                                                                      whichever is less, and/or
                                                                                      terminate or disallow
                                                                                      extra good time (EGT) (an
                                                                                      EGT sanction may not be
                                                                                      suspended).
                                                             3d offense, or more...  Any sanctions available in
                                                                                      Moderate (300) and Low
                                                                                      Moderate (400) series.
Moderate (300 series)..............  12 months.............  2d offense............  Moderate Sanctions (A,C,E-
                                                                                      N), plus.
                                                                                     1. Disciplinary
                                                                                      segregation, up to 21
                                                                                      days.
                                                                                     2. Forfeit earned SGT or
                                                                                      non-vested GCT up to 37\1/
                                                                                      2\% or up to 45 days,
                                                                                      whichever is less, and/or
                                                                                      terminate or disallow EGT
                                                                                      (an EGT sanction may not
                                                                                      be suspended).
                                                             3d offense, or more...  Any sanctions available in
                                                                                      Moderate (300) and High
                                                                                      (200) series.
High (200 series)..................  18 months.............  2d offense............  High Sanctions (A,C,E-M),
                                                                                      plus.
                                                                                     1. Disciplinary
                                                                                      segregation, up to 45
                                                                                      days.
                                                                                     2. Forfeit earned SGT or
                                                                                      non-vested GCT up to 75%
                                                                                      or up to 90 days,
                                                                                      whichever is less, and/or
                                                                                      terminate or disallow EGT
                                                                                      (an EGT sanction may not
                                                                                      be suspended).
                                                             3d offense, or more...  Any sanctions available in
                                                                                      High (200) and Greatest
                                                                                      (100) series.
----------------------------------------------------------------------------------------------------------------


            Table 6--Sanctions by Severity of Prohibited Act, With Eligibility for Restoration of Forfeited and Withheld Statutory Good Time
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Elig. restoration   Elig. restoration
         Severity of act               Sanctions      Max. amt. forf. GT   Max. amt W/hd SGT       forf. SGT           W/hd/SGT          Max. dis seg
--------------------------------------------------------------------------------------------------------------------------------------------------------
Greatest........................  A-F...............  100%..............  Good time           24 mos............  18 mos............  60 days.
                                                                           creditable for
                                                                           single.
High............................  A-M...............  50% or 60 days,     month during which  18 mos............  12 mos............  30 days.
                                                       whichever is less.  violation occurs.
                                                                           Applies to all
                                                                           categories..
Moderate........................  A-N...............  25% or 30 days,                         12 mos............  6 mos.............  15 days.
                                                       whichever is less.
Low Moderate....................  E-P...............  N/A...............                      N/A (1st offense).  3 mos.............  N/A (1st offense).
                                                                                              6 mos. (2nd or 3rd                      7 days (2nd
                                                                                               offense in same                         offense).
                                                                                               category within
                                                                                               six months).

[[Page 541]]

 
                                                                                                                                      15 days (3rd
                                                                                                                                       offense).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: (1) In table 6 headings, ``GT'' represents both good conduct and statutory good time and ``SGT'' represents statutory good time. Forfeited good
  conduct time is not eligible for restoration. Restoration of statutory good time will be approved at the time of initial eligibility only when the
  inmate has shown a period of time with improved good behavior. When the Warden or his delegated representative denies restoration of forfeited or
  withheld statutory good time, the unit team shall notify the inmate of the reasons for denial. The unit team shall establish a new eligibility date,
  not to exceed six months from the date of denial.
(2) An inmate with an approaching parole effective date, or an approaching mandatory release or expiration date who has forfeited good time may be
  placed in a Community Treatment Center only if that inmate is otherwise eligible under Bureau policy, and if there exists a legitimate documented need
  for such placement. The length of stay at the Community Treatment Center is to be held to the time necessary to establish residence and employment.


[53 FR 197, Jan, 5, 1988, as amended at 53 FR 40686, Oct. 17, 1988; 54 
FR 38987, Sept. 22, 1989; 54 FR 39095, Sept. 22, 1989; 58 FR 39095, July 
21, 1993; 62 FR 50788, Sept. 26, 1997; 65 FR 59726, Oct. 6, 2000; 67 FR 
77428, Dec. 18, 2002]



Sec. 541.14  Incident report and investigation.

    (a) Incident report. The Bureau of Prisons encourages informal 
resolution (requiring consent of both parties) of incidents involving 
violations of Bureau regulations. However, when staff witnesses or has a 
reasonable belief that a violation of Bureau regulations has been 
committed by an inmate, and when staff considers informal resolution of 
the incident inappropriate or unsuccessful, staff shall prepare an 
Incident Report and promptly forward it to the appropriate Lieutenant. 
Except for prohibited acts in the Greatest or High Severity Category, 
the Lieutenant may informally dispose of the Incident Report or forward 
the Incident Report for investigation consistent with this section. The 
Lieutenant shall expunge the inmate's file of the Incident Report if 
informal resolution is accomplished. Only the DHO may make a final 
disposition on a prohibited act in the Greatest Severity Category or on 
a prohibited act in the High Category (when the High Category prohibited 
act has been committed by a VCCLEA inmate rated as violent or by a PLRA 
inmate).
    (b) Investigation. Staff shall conduct the investigation promptly 
unless circumstances beyond the control of the investigator intervene.
    (1) When it appears likely that the incident may be the subject of 
criminal prosecution, the investigating officer shall suspend the 
investigation, and staff may not question the inmate until the Federal 
Bureau of Investigation or other investigative agency interviews have 
been completed or until the agency responsible for the criminal 
investigation advises that staff questioning may occur.
    (2) The inmate may receive a copy of the Incident Report prior to 
being seen by the investigating agency. The investigating officer 
(Bureau of Prisons) shall give the inmate a copy of the Incident Report 
at the beginning of the investigation, unless there is good cause for 
delivery at a later date, such as absence of the inmate from the 
institution or a medical condition which argues against delivery. If the 
investigation is delayed for any reason, any employee may deliver the 
charge(s) to the inmate. The staff member shall note the date and time 
the inmate received a copy of the Incident Report. The investigator 
shall also read the charge(s) to the inmate and ask for the inmate's 
statement concerning the incident unless it appears likely that the 
incident may be the subject of criminal prosecution. The investigator 
shall advise the inmate of the right to remain silent at all stages of 
the disciplinary process but that the inmate's silence may be used to 
draw an adverse inference against the inmate at any stage of the 
institutional disciplinary process. The investigator shall also inform 
the inmate that the inmate's silence alone may not be used to support a 
finding that the inmate has committed a prohibited act. The investigator 
shall then thoroughly investigate the incident.

[[Page 542]]

The investigator shall record all steps and actions taken on the 
Incident Report and forward all relevant material to the staff holding 
the initial hearing. The inmate does not receive a copy of the 
investigation. However, if the case is ultimately forwarded to the 
Discipline Hearing Officer, the DHO shall give a copy of the 
investigation and other relevant materials to the inmate's staff 
representative for use in presentation on the inmate's behalf.

[53 FR 197, Jan. 5, 1988, as amended at 62 FR 50791, Sept. 26, 1997]



Sec. 541.15  Initial hearing.

    The Warden shall delegate to one or more institution staff members 
the authority and duty to hold an initial hearing upon completion of the 
investigation. In order to ensure impartiality, the appropriate staff 
member(s) (hereinafter usually referred to as the Unit Discipline 
Committee (UDC)) may not be the reporting or investigating officer or a 
witness to the incident, or play any significant part in having the 
charges referred to the UDC. However, a staff member witnessing an 
incident may serve on the UDC where virtually every staff member in the 
institution witnesses the incident in whole or in part. If the UDC finds 
at the initial hearing that an inmate has committed a prohibited act, 
the UDC may impose minor dispositions and sanctions. When an alleged 
violation of Bureau rules is serious and warrants consideration for 
other than minor sanctions, the UDC shall refer the charges to the 
Discipline Hearing Officer for further hearing. The UDC must refer all 
greatest category charges to the DHO. The following minimum standards 
apply to initial hearings in all institutions.
    (a) Staff shall give each inmate charged with violating a Bureau 
rule a written copy of the charge(s) against the inmate, ordinarily 
within 24 hours of the time staff became aware of the inmate's 
involvement in the incident.
    (b) Each inmate so charged is entitled to an initial hearing before 
the UDC, ordinarily held within three work days from the time staff 
became aware of the inmate's involvement in the incident. This three 
work day period excludes the day staff became aware of the inmate's 
involvement in the incident, weekends, and holidays.
    (c) The inmate is entitled to be present at the initial hearing 
except during deliberations of the decision maker(s) or when 
institutional security would be jeopardized by the inmate's presence. 
The UDC shall clearly document in the record of the hearing reasons for 
excluding an inmate from the hearing. An inmate may waive the right to 
be present at this hearing provided that the waiver is documented by 
staff and reviewed by the UDC. A waiver may be in writing, signed by the 
inmate, or if the inmate refuses to sign a waiver, it shall be shown by 
a memorandum signed by staff and witnessed by a second staff member 
indicating the inmate's refusal to appear at the hearing. The UDC may 
conduct a hearing in the absence of an inmate when the inmate waives the 
right to appear. When an inmate escapes or is otherwise absent from 
custody, the UDC shall conduct a hearing in the inmate's absence at the 
institution in which the inmate was last confined.
    (d) The inmate is entitled to make a statement and to present 
documentary evidence in the inmate's own behalf.
    (e) The Unit Discipline Committee may drop or informally resolve any 
Moderate or Low Moderate charge. The UDC shall expunge the inmate's file 
of the Incident Report if informal resolution is accomplished.
    (f) The Unit Discipline Committee shall consider all evidence 
presented at the hearing and shall make a decision based on at least 
some facts, and if there is conflicting evidence, it must be based on 
the greater weight of the evidence. The UDC shall take one of the 
following actions:
    (1) Find that the inmate committed the prohibited act charged and/or 
a similar prohibited act if reflected in the Incident Report;
    (2) Find that the inmate did not commit the prohibited act charged 
or a similar prohibited act if reflected in the Incident Report; or
    (3) Refer the case to the DHO for further hearing:

The UDC shall give the inmate a written copy of the decision and 
disposition by the close of business the next work

[[Page 543]]

day. Any action taken as a minor disposition is reviewable under the 
Administration Remedy Procedure (see part 542 of this chapter).
    (g) The UDC shall prepare a record of its proceedings which need not 
be verbatim. A record of the hearing and supporting documents are kept 
in the inmate's file.
    (h) When an alleged violation of Bureau rules is serious and 
warrants consideration for other than minor sanctions (G through P), the 
UDC shall refer the charge(s) without indication of findings as to 
commission of the alleged violation to the Discipline Hearing Officer 
(DHO) for hearing and disposition. The UDC shall forward copies of all 
relevant documents to the DHO with a brief statement of reasons for the 
referral along with any recommendations for appropriate disposition if 
the DHO finds the inmate has committed the act charged and/or a similar 
prohibited act. The inmate whose charge is being referred to the 
Discipline Hearing Officer may be retained in administrative detention 
or other restricted status, but the UDC may not impose a final 
disposition if the matter is being referred to the DHO.
    (i) When charges are to be referred to the Discipline Hearing 
Officer, the UDC shall advise the inmate of the rights afforded at a 
hearing before the DHO. The UDC shall ask the inmate to indicate a 
choice of staff representative, if any, and the names of any witnesses 
the inmate wishes to be called to testify at the hearing and what 
testimony they are expected to provide. The UDC shall advise the inmate 
that the inmate may waive the right to be present at the Institution 
Discipline hearing, but still elect to have witnesses and/or a staff 
representative appear in the inmate's behalf at this hearing.
    (j) When the Unit Discipline Committee holds a full hearing and 
determines that the inmate did not commit a prohibited act of High, 
Moderate or Low Moderate Severity, the UDC shall expunge the inmate's 
file of the Incident Report and related documents. The UDC must refer to 
the Discipline Hearing Officer all incidents involving prohibited acts 
of Greatest Severity.
    (k) The UDC may extend time limits imposed in this section for a 
good cause shown by the inmate or staff and documented in the record of 
the hearing.



Sec. 541.16  Establishment and functioning of the Discipline Hearing Officer.

    (a) Each Bureau of Prison institution shall have an independent 
hearing officer (DHO) assigned to conduct administrative fact-finding 
hearings covering alleged acts of misconduct and violations of 
prohibited acts, including those acts which could result in criminal 
charges. In the event of a serious disturbance or other emergency, of if 
an inmate commits an offense in the presence of the DHO, an alternate 
Discipline Hearing Officer will be appointed to conduct hearings with 
approval of the appropriate Regional Director. If the institution's DHO 
is not able to conduct hearings, the Warden shall arrange for another 
DHO to conduct the hearings. This person must be trained and certified 
as a DHO, and meet the other requirements for DHO.
    (b) In order to insure impartiality, the DHO may not be the 
reporting officer, investigating officer, or UDC member, or a witness to 
the incident or play any significant part in having the charge(s) 
referred to the DHO.
    (c) The Discipline Hearing Officer shall conduct hearings, make 
findings, and impose appropriate sanctions for incidents of inmate 
miscounduct referred for disposition following the hearing required by 
Sec. 541.15 before the UDC. The DHO may not hear any case or impose any 
sanctions in a case not heard and referred by the UDC. Only the 
Discipline Hearing Officer shall have the authority to impose or suspend 
sanctions A through F.
    (d) The Warden at each institution shall designate a staff member, 
hereinafter called the Segregation Review Official (SRO), to conduct 
reviews of inmates placed in disciplinary segregation and administrative 
detention in accordance with the requirements of Sec. 541.20 and 
Sec. 541.22.

[[Page 544]]



Sec. 541.17  Procedures before the Discipline Hearing Officer.

    The Discipline Hearing Officer shall proceed as follows:
    (a) The Warden shall give an inmate advance written notice of the 
charge(s) against the inmate no less than 24 hours before the inmate's 
appearance before the Discipline Hearing Officer unless the inmate is to 
be released from custody within that time. An inmate may waive in 
writing the 24-hour notice requirement.
    (b) The Warden shall provide an inmate the service of a full time 
staff member to represent the inmate at the hearing before the 
Discipline Hearing Officer should the inmate so desire. The Warden, the 
DHO or alternate DHO, the reporting officer, investigating officer, a 
witness to the incident, and UDC members involved in the case may not 
act as staff representative. The Warden may exclude staff from acting as 
staff representative in a particular case when there is a potential 
conflict in roles. The staff representative shall be available to assist 
the inmate if the inmate desires by speaking to witnesses and by 
presenting favorable evidence to the DHO on the merits of the charge(s) 
or in extenuation or mitigation of the charge(s). The DHO shall arrange 
for the presence of the staff representative selected by the inmate. If 
the staff member selected declines or is unavailable because of absence 
from the institution, the inmate has the option of selecting another 
representative, or in the case of an absent staff member of waiting a 
reasonable period for the staff member's return, or of proceeding 
without a staff representative. When several staff members decline this 
role, the Warden shall promptly appoint a staff representative to assist 
the inmate. The DHO shall afford a staff representative adequate time to 
speak with the inmate and interview requested witnesses where 
appropriate. While it is expected that a staff member will have had 
ample time to prepare prior to the hearing, delays in the hearing to 
allow for adequate preparation may be ordered by the Discipline Hearing 
Officer. When it appears that the inmate is not able to properly make a 
presentation on his own behalf (for example, an illiterate inmate), the 
Warden shall appoint a staff representative for the inmate, even if one 
is not requested.
    (c) The inmate is entitled to make a statement and to present 
documentary evidence in the inmate's own behalf. An inmate has the right 
to submit names of requested witnesses and have them called to testify 
and to present documents in the inmate's behalf, provided the calling of 
witnesses or the disclosure of documentary evidence does not jeopardize 
or threaten institutional or an individual's security. The DHO shall 
call those witnesses who have information directly relevant to the 
charge(s) and who are reasonably available. This may include witnesses 
from outside of the institution. The inmate charged may be excluded 
during the appearance of an outside witness. The appearance of the 
outside witness should be in an area of the institution in which outside 
visitors are usually allowed. The DHO need not call repetitive 
witnesses. The reporting officer and other adverse witnesses need not be 
called if their knowledge of the incident is adequately summarized in 
the Incident Report and other investigative materials supplied to the 
DHO. The DHO shall request submission of written statements from 
unavailable witnesses who have information directly relevant to the 
charge(s). The DHO shall document reasons for declining to call 
requested witnesses in the DHO report, or, if the reasons are 
confidential, in a separate report, not available to the inmate. The 
inmate's staff representative, or when the inmate waives staff 
representation, the DHO, shall question witnesses requested by the 
inmate who are called before the DHO. The inmate who has waived staff 
representation may submit questions for requested witnesses in writing 
to the DHO. The inmate may not question any witness at the hearing.
    (d) An inmate has the right to be present throughout the DHO hearing 
except during a period of deliberation or when institutional security 
would be jeopardized. The DHO must document in the record the reason(s) 
for excluding an inmate from the hearing. An inmate may waive the right 
to be present

[[Page 545]]

at the hearing, provided that the waiver is documented by staff and 
reviewed by the DHO. A waiver may be in writing, signed by the inmate, 
or if the inmate refuses to sign a waiver, it shall be shown by a 
memorandum signed by staff and witnessed by a second staff member 
indicating the inmate's refusal to appear at the hearing. The DHO may 
conduct a hearing in the absence of an inmate when the inmate waives the 
right to appear. When an inmate escapes or is otherwise absent from 
custody, the Discipline Hearing Officer shall conduct a hearing in the 
inmate's absence at the institution in which the inmate was last 
confined. When an inmate returns to custody following absence during 
which sanctions were imposed by the DHO (or the predecessor Institution 
Discipline Committee (IDC)), the Warden shall have the charges reheard 
before the Discipline Hearing Officer ordinarily within 60 days after 
the inmate's arrival at the institution to which the inmate is 
designated after return to custody, and following appearance before the 
Unit Discipline Committee at that institution. The UDC shall ensure that 
the inmate has all rights required for appearance before the Discipline 
Hearing Officer, including delivery of charge(s), advisement of the 
right to remain silent and other rights to be exercised before the 
Discipline Hearing Officer. All the applicable procedural requirements 
for hearings before the Discipline Hearing Officer apply to this 
rehearing, except that written statements of witnesses not readily 
available may be liberally used instead of in-person witnesses. The DHO 
upon rehearing may affirm the earlier action taken, may dismiss the 
charge(s), may modify the finding of the original DHO as to the offense 
which was committed, or may modify but may not increase the sanctions 
previously imposed in the inmate's absence.
    (e) The DHO may refer the case back to the UDC for further 
information or disposition. The DHO may postpone or, at any time prior 
to making a decision as to whether or not a prohibited act was 
committed, may continue the hearing until a later date whenever further 
investigation or more evidence is needed. A postponement or continuance 
must be for good cause (determined by the DHO) shown by the inmate or 
staff and should be documented in the record of the hearing.
    (f) The DHO shall consider all evidence presented at the hearing. 
The decision of the DHO shall be based on at least some facts, and if 
there is conflicting evidence, it must be based on the greater weight of 
the evidence. The DHO shall find that the inmate either:
    (1) Committed the prohibited act charged and/or a similar prohibited 
act if reflected in the Incident Report; or
    (2) Did not commit the prohibited act charged or a similar 
prohibited act if reflected in the Incident Report.

When a disciplinary decision is based on confidential informant 
information, the UDC or DHO shall document, ordinarily in the hearing 
report, the finding as to the reliability of each confidential informant 
relied on and the factual basis for that finding. When it appears that 
this documentation in the report would reveal the confidential 
informant's identity, the finding as to the reliability of each 
confidential informant relied on and the factual basis for that finding 
shall be made part of the hearing record in a separate report, prepared 
by the UDC chairman or DHO, not available to the inmate.
    (g) The Discipline Hearing Officer shall prepare a record of the 
proceedings which need not be verbatim. This record must be sufficient 
to document the advisement of inmate rights, the DHO's findings, the 
DHO's decision and the specific evidence relied on by the DHO, and must 
include a brief statement of the reasons for the sanctions imposed. The 
evidence relied upon, the decision, and the reasons for the actions 
taken must be set out in specific terms unless doing so would jeopardize 
institutional security. The DHO shall give the inmate a written copy of 
the decisions and disposition, ordinarily within 10 days of the DHO's 
decision.
    (h) A record of the hearing and supporting documents are to be kept 
in the inmate central file.
    (i) The Discipline Hearing Officer shall expunge an inmate's file of 
the Incident Report and related documents following a DHO finding that 
the inmate did not commit a prohibited act.

[[Page 546]]

The requirement for expunging the inmate's file does not preclude 
maintaining for research purposes copies of disciplinary actions 
resulting in ``not guilty'' findings in a master file separate from the 
inmate's institution file. However, institution staff may not use or 
allow the use of the contents of this master file in a manner which 
would adversely affect the inmate. Likewise, the expungement requirement 
does not require the destruction of medical reports or other reports 
relating to a particular inmate which must be maintained to document 
medical or other treatment given in a special housing unit. If an 
inmate's conduct during one continuous incident may constitute more than 
one prohibited act, and if the incident is reported in a single Incident 
Report, and if the DHO finds the inmate has not committed every 
prohibited act charged, or if the DHO finds that the inmate has 
committed a prohibited act(s) other than the act(s) charged, then the 
DHO shall record those findings clearly and shall change the Incident 
Report to show only the incident and code references to charges which 
were proved. Institution staff may not use the existence of charged but 
unproved misconduct against the inmate.



Sec. 541.18  Dispositions of the Discipline Hearing Officer.

    The Discipline Hearing Officer has available a broad range of 
sanctions and dispositions following completion of the hearing. The 
Discipline Hearing Officer may do any of the following:
    (a) Dismiss any charge(s) upon a finding that the inmate did not 
commit the prohibited act(s). The DHO shall order the record of 
charge(s) expunged upon such finding.
    (b) Impose any of sanctions A through P as provided in Sec. 541.13.
    (c) Suspend the execution of a sanction it imposes as provided in 
Sec. 541.13.



Sec. 541.19  Appeals from Unit Discipline Committee or Discipline Hearing Officer actions.

    At the time the Unit Discipline Committee or Discipline Hearing 
Officer gives an inmate written notice of its decision, the UDC or DHO 
shall also advise the inmate that the inmate may appeal the decision 
under Administrative Remedy Procedures (see part 542 of this chapter). 
An inmate's initial appeal of a decision of the DHO should be filed 
directly to the appropriate Regional Office. The inmate should forward a 
copy of the DHO report or, if not available at the time of filing, 
should state in his appeal the date of the DHO hearing and the nature of 
the charges against the inmate. On appeals, the appropriate reviewing 
official (the Warden, Regional Director, or General Counsel) may 
approve, modify, reverse, or send back with directions, including 
ordering a rehearing, any disciplinary action of the Unit Discipline 
Committee or Discipline Hearing Officer but may not increase any valid 
sanction imposed. On appeals, the appropriate reviewing authority shall 
consider:
    (a) Whether the Unit Discipline Committee or the Discipline Hearing 
Officer substantially complied with the regulations on inmate 
discipline;
    (b) Whether the Unit Discipline Committee or Discipline Hearing 
Officer based its decision on some facts, and if there was conflicting 
evidence, whether the decision was based on the greater weight of the 
evidence; and
    (c) Whether an appropriate sanction was imposed according to the 
severity level of the prohibited act, and other relevant circumstances.



Sec. 541.20  Justification for placement in disciplinary segregation and review of inmates in disciplinary segregation.

    (a) Except as provided in paragraph (b) of this section, an inmate 
may be placed in disciplinary segregation only by order of the 
Discipline Hearing Officer following a hearing in which the inmate has 
been found to have committed a prohibited act in the Greatest, High, or 
Moderate Category, or a repeated offense in the Low Moderate Category. 
The DHO may order placement in disciplinary segregation only when other 
available dispositions are inadequate to achieve the purpose of 
punishment and deterrence necessary to regulate an inmate's behavior 
within acceptable limits.
    (b) The Warden may temporarily (not exceeding five days) move an 
inmate to

[[Page 547]]

a more secure cell (which may be in an area ordinarily set aside for 
disciplinary segregation and which therefore requires the withdrawal of 
privileges ordinarily afforded in administrative detention status, until 
a hearing before the DHO can be held) who (1) is causing a serious 
disruption (threatening life, serious bodily harm, or property) in 
administrative detention, (2) cannot be controlled within the physical 
confines of administrative detention, and (3) upon advice of appropriate 
medical staff, does not require confinement in the institution hospital 
for mental or physical treatment, or who would ordinarily be housed in 
the institution hospital for mental or physical treatment, but who 
cannot safely be housed there because the hospital does not have a room 
or cell with adequate security provisions. The Warden may delegate this 
authority no further than to the official in charge of the institution 
at the time the move is necessary.
    (c) The Segregation Review Official (SRO) (see Sec. 541.16(d)) shall 
conduct a hearing and formally review the status of each inmate who 
spends seven continuous days in disciplinary segregation and thereafter 
shall review these cases on the record in the inmate's absence each week 
and shall conduct a hearing and formally review these cases at least 
once every 30 days. The inmate appears before the SRO at the 30-day 
hearings, unless the inmate waives the right to appear. A waiver may be 
in writing, signed by the inmate, or if the inmate refuses to sign a 
waiver, it shall be shown by a memorandum signed by staff and witnessed 
by a second staff member indicating the inmate's refusal to appear at 
the hearing. Staff shall conduct a psychiatric or psychological 
assessment, including a personal interview, when disciplinary 
segregation continues beyond 30 days. The assessment, submitted to the 
SRO in a written report, shall address the inmate's adjustment to 
surroundings and the threat the inmate poses to self, staff and other 
inmates. Staff shall conduct a similar psychiatric or psychological 
assessment and report at subsequent one-month intervals if segregation 
continues for this extended period.
    (d) The Segregation Review Official may release an inmate from 
disciplinary segregation earlier than the sanction initially imposed 
upon finding that continuation in disciplinary segregation is no longer 
necessary to regulate the inmate's behavior within acceptable limits or 
for fulfilling the purpose of punishment and deterrence which initially 
resulted in the inmate's placement in disciplinary segregation status. 
The SRO may not increase any previously imposed sanction.



Sec. 541.21  Conditions of disciplinary segregation.

    (a) Disciplinary segregation is the status of confinement of an 
inmate housed in a special housing unit in a cell either alone or with 
other inmates, separated from the general population. Inmates housed in 
disciplinary segregation have significantly fewer privileges than those 
housed in administrative detention.
    (b) The Warden shall maintain for each segregated inmate basic 
living levels of decency and humane treatment, regardless of the purpose 
for which the inmate has been segregated. Living conditions may not be 
modified for the purpose of reinforcing acceptable behavior and 
different levels of living arrangements will not be established. Where 
it is determined necessary to deprive an inmate of a usually authorized 
item, staff shall prepare written documentation as to the basis for this 
action, and this document will be signed by the Warden, indicating the 
Warden's review and approval.
    (c) The basic living standards for segregation are as follows:
    (1) Segregation conditions. The quarters used for segregation must 
be well-ventilated, adequately lighted, appropriately heated and 
maintained in a sanitary condition at all times. All cells must be 
equipped with beds. Strip cells may not be a part of the segregation 
unit. Any strip cells which are utilized must be a part of the medical 
facility and under the supervision and control of the medical staff.
    (2) Cell occupancy. The number of inmates confined to each cell or 
room in segregation should not exceed the number for which the space was 
designated.

[[Page 548]]

The Warden may approve excess occupancy if the Warden finds there is a 
pressing need for this action, and that other basic living standards of 
this subsection can still be maintained.
    (3) Clothing and bedding. An inmate in segregation may wear normal 
institution clothing but may not have a belt. Staff shall furnish a 
mattress and bedding. Cloth or paper slippers may be substituted for 
shoes at the discretion of the Warden. An inmate may not be segregated 
without clothing, mattress, blankets and pillow, except when prescribed 
by the medical officer for medical or psychiatric reasons. Inmates in 
special housing status will be provided, as nearly as practicable, the 
same opportunity for the issue and exchange of clothing, bedding, and 
linen, and for laundry as inmates in the general population. Exceptions 
to this procedure may be permitted only when found necessary by the 
Warden or designee. An exception, and the reasons for this, must be 
recorded in the unit log.
    (4) Food. Staff shall give a segregated inmate nutritionally 
adequate meals, ordinarily from the menu of the day for the institution. 
Staff may dispense disposable utensils when necessary.
    (5) Personal hygiene. Segregated inmates shall have the opportunity 
to maintain an acceptable level of personal hygiene. Staff shall provide 
toilet tissue, wash basin, tooth brush, eyeglasses, shaving utensils, 
etc., as needed. Staff may issue a retrievable kit of toilet articles. 
Each segregated inmate shall have the opportunity to shower and shave at 
least three times a week, unless these procedures would present an undue 
security hazard. This security hazard will be documented and signed by 
the Warden, indicating the Warden's review and approval. Inmates in 
special housing will be provided, where practicable, barbering and hair 
care services. Exceptions to this procedure may be permitted only when 
found necessary by the Warden or designee.
    (6) Exercise. Staff shall permit each segregated inmate no less than 
five hours exercise each week. Exercise should be provided in five one-
hour periods, on five different days, but if circumstances require, one-
half hour periods are acceptable if the five-hour minimum and different 
days schedule is maintained. These provisions must be carried out unless 
compelling security or safety reasons dictate otherwise. Institution 
staff shall document these reasons. Exercise periods, not to exceed one 
week, may be withheld from an inmate by order of the Warden, following a 
hearing, and recommendation, before a person certified in the discipline 
hearing officer procedures. This hearing must be held in accordance with 
the provisions of Sec. 541.17, following those provisions which are 
appropriate to these circumstances, and only upon a finding by the 
person conducting the hearing that the actions of the segregated inmate 
pose a threat to the safety or health conditions of the unit.
    (7) Personal property. Institution staff shall ordinarily impound 
personal property.
    (8) Reading material. Staff shall provide a reasonable amount of 
non-legal reading material, not to exceed five books per inmate at any 
one time, on a circulating basis. Staff shall provide the inmate 
opportunity to possess religious scriptures of the inmate's faith. As to 
legal materials, see part 543, subpart B.
    (9) Supervision. In addition to the direct supervision afforded by 
the unit officer, a member of the medical department and one or more 
responsible officers designated by the Warden (ordinarily a Lieutenant) 
shall see each segregated inmate daily, including weekends and holidays. 
Members of the program staff, including unit staff, shall arrange to 
visit inmates in special housing within a reasonable time after 
receiving the inmate's request.
    (10) Correspondence and visits. As to correspondence privileges, see 
part 540, subpart B. Staff shall make reasonable effort to notify 
approved social visitors of any necessary restriction on ordinary 
visiting procedures so that they may be spared disappointment and 
unnecessary inconvenience. If ample time for correspondence exists, 
staff may place the burden of this notification to visitors on the 
inmate. As to general visiting and telephone privileges, see part 540, 
subpart D and subpart I. In respect to legal, religious, and privileged 
out-going mail, the relevant regulations must be followed by institution

[[Page 549]]

staff (see parts 540, 543, and 548 of this chapter).



Sec. 541.22  Administrative detention.

    Administrative detention is the status of confinement of an inmate 
in a special housing unit in a cell either by self or with other inmates 
which serves to remove the inmate from the general population.
    (a) Placement in administrative detention. The Warden may delegate 
authority to place an inmate in administrative detention to Lieutenants. 
Prior to the inmate's placement in administrative detention, the 
Lieutenant is to review the available information and determine whether 
the inmate's placement in administrative detention is warranted. The 
Warden may place an inmate in administrative detention when the inmate 
is in holdover status (i.e., en route to a designated institution) 
during transfer, or is a new commitment pending classification. The 
Warden may also place an inmate in administrative detention when the 
inmate's continued presence in the general population poses a serious 
threat to life, property, self, staff, other inmates or to the security 
or orderly running of the institution and when the inmate:
    (1) Is pending a hearing for a violation of Bureau regulations;
    (2) Is pending an investigation of a violation of Bureau 
regulations;
    (3) Is pending investigation or trial for a criminal act;
    (4) Is pending transfer;
    (5) Requests admission to administrative detention for the inmate's 
own protection, or staff determines that admission to or continuation in 
administrative detention is necessary for the inmate's own protection 
(see Sec. 541.23); or
    (6) Is terminating confinement in disciplinary segregation and 
placement in general population is not prudent. The Segregation Review 
Official is to advise the inmate of this determination and the reasons 
for such action.
    (i) Except for pretrial inmates or inmates in a control unit 
program, staff ordinarily within 90 days of an inmate's placement in 
post-disciplinary detention shall either return the inmate to the 
general inmate population or request regional level assistance to effect 
a transfer to a more suitable institution.
    (ii) The Assistant Director, Correctional Programs Division, shall 
review for purpose of making a disposition, the case of an inmate not 
transferred from post-disciplinary detention within the time frame 
specified in paragraph (a)(6)(i) of this section.
    (iii) Staff in a control unit will attempt to adhere to the 90-day 
limit for an inmate's placement in post-disciplinary detention. Because 
security needs required for an inmate in a control unit program may not 
be available outside of post-discipline detention, the Warden may 
approve an extension of this placement upon determining in writing that 
it is not practicable to release the inmate to the general inmate 
population or to effect a transfer to a more suitable institution.
    (iv) The appropriate Regional Director and the Assistant Director, 
Correctional Programs Division, shall review (for purpose of making a 
disposition) the case of an inmate in a control unit program not 
transferred from post-disciplinary detention within the 90-day time 
frame specified in paragraph (a)(6)(iii) of this section. A similar, 
subsequent review shall be conducted every 60-90 days if post-
disciplinary detention continues for this extended period.
    (b) Administrative detention order detailing reasons for placement. 
The Warden shall prepare an administrative detention order detailing the 
reasons for placing an inmate in administrative detention, with a copy 
given to the inmate, provided institutional security is not compromised 
thereby. Staff shall deliver this order to the inmate within 24 hours of 
the inmate's placement in administrative detention, unless this delivery 
is precluded by exceptional circumstances. An order is not necessary for 
an inmate placed in administrative detention when this placement is a 
direct result of the inmate's holdover status.
    (c) Review of inmates housed in administrative detention. (1) Except 
as otherwise provided in paragraphs (c)(2) and (c)(3) of this section, 
the Segregation Review Official will review the status of inmates housed 
in administrative

[[Page 550]]

detention. The SRO shall conduct a record review within three work days 
of the inmate's placement in administrative detention and shall hold a 
hearing and formally review the status of each inmate who spends seven 
continuous days in administrative detention, and thereafter shall review 
these cases on the record (in the inmate's absence) each week, and shall 
hold a hearing and review these cases formally at least every 30 days. 
The inmate appears before the SRO at the hearing unless the inmate 
waives the right to appear. A waiver may be in writing, signed by the 
inmate, or if the inmate refuses to sign a waiver, it shall be shown by 
a memorandum signed by staff and witnessed by a second staff member 
indicating the inmate's refusal to appear at the hearing. Staff shall 
conduct a psychiatric or psychological assessment, including a personal 
interview, when administrative detention continues beyond 30 days. The 
assessment, submitted to the SRO in a written report, shall address the 
inmate's adjustment to surroundings and the threat the inmate poses to 
self, staff and other inmates. Staff shall conduct a similar psychiatric 
or psychological assessment and report at subsequent one-month intervals 
should detention continue for this extended period. Administrative 
detention is to be used only for short periods of time except where an 
inmate needs long-term protection (see Sec. 541.23), or where there are 
exceptional circumstances, ordinarily tied to security or complex 
investigative concerns. An inmate may be kept in administrative 
detention for longer term protection only if the need for such 
protection is documented by the SRO. Provided institutional security is 
not compromised, the inmate shall receive at each formal review a 
written copy of the SRO's decision and the basis for this finding. The 
SRO shall release an inmate from administrative detention when reasons 
for placement cease to exist.
    (2) The Warden shall designate appropriate staff to meet weekly with 
an inmate in administrative detention when this placement is a direct 
result of the inmate's holdover status. Staff shall also review this 
type of case on the record each week.
    (3) When an inmate is placed in administrative detention for 
protection, but not at that inmate's request, the Warden or designee is 
to review the inmate's status within two work days of this placement to 
determine if continued protective custody is necessary. A formal hearing 
is to be held within seven days of the inmate's placement (see 
Sec. 541.23, Protection Cases).
    (d) Conditions of administrative detention. The basic level of 
conditions as described in Sec. 541.21(c) for disciplinary segregation 
also apply to administrative detention. If consistent with available 
resources and the security needs of the unit, the Warden shall give an 
inmate housed in administrative detention the same general privileges 
given to inmates in the general population. This includes, but is not 
limited to, providing an inmate with the opportunity for participation 
in an education program, library services, social services, counseling, 
religious guidance and recreation. Unless there are compelling reasons 
to the contrary, institutions shall provide commissary privileges and 
reasonable amounts of personal property. An inmate in administrative 
detention shall be permitted to have a radio, provided that the radio is 
equipped with ear plugs. Exercise periods, at a minimum, will meet the 
level established for disciplinary segregation and will exceed this 
level where resources are available. The Warden shall give an inmate in 
administrative detention visiting, telephone, and correspondence 
privileges in accordance with part 540 of this chapter. The Warden may 
restrict for reasons of security, fire safety, or housekeeping the 
amount of personal property that an inmate may retain while in 
administrative detention.

[53 FR 197, Jan. 5, 1988, as amended at 56 FR 4159, Feb. 1, 1991; 56 FR 
31530, July 10, 1991; 57 FR 23260, June 2, 1992; 61 FR 47795, Sept. 10, 
1996]



Sec. 541.23  Protection cases.

    (a) Staff may consider the following categories of inmates as 
protection cases:
    (1) Victims of inmate assaults;
    (2) Inmate informants;

[[Page 551]]

    (3) Inmates who have received inmate pressure to participate in 
sexual activity;
    (4) Inmates who seek protection through detention, claiming to be 
former law enforcement officers, informants, or others in sensitive law 
enforcement positions, whether or not there is official information to 
verify the claim;
    (5) Inmates who have previously served as inmate gun guards, dog 
caretakers, or in similar positions in state or local correctional 
facilities;
    (6) Inmates who refuse to enter the general population because of 
alleged pressures from other unidentified inmates;
    (7) Inmates who will not provide, and as to whom staff cannot 
determine, the reason for refusal to return to the general population; 
and
    (8) Inmates about whom staff has good reason to believe the inmate 
is in serious danger of bodily harm.
    (b) Inmates who are placed in administrative detention for 
protection, but not at their own request or beyond the time when they 
feel they need to be detained for their own protection, are entitled to 
a hearing, no later than seven days from the time of their admission (or 
from the time of their detention beyond their own consent). This hearing 
is conducted in accordance with the procedural requirements of 
Sec. 541.17, as to advance written notice, staff representation, right 
to make a statement and present documentary evidence, to request 
witnesses, to be present throughout the hearing, and advance advisement 
of inmate rights at the hearing, and as to making a record of the 
proceedings.
    (c) Ordinarily, staff may place an inmate in administrative 
detention as provided in paragraph (a) of this rule relating to 
protection cases, for a period not to exceed 90 days. Staff shall 
clearly document in the record the reasons for any extension beyond this 
90-day period.
    (d) Where appropriate, staff shall first attempt to place the inmate 
in the general population of their particular facility. Where 
inappropriate, staff shall clearly document the reason(s) and refer the 
case, with all relevant material, to their Regional Director, who, upon 
review of the material, may order the transfer of a protection case.

Subpart C [Reserved]



                    Subpart D--Control Unit Programs

    Source: 49 FR 32991, Aug. 17, 1984, unless otherwise noted.



Sec. 541.40  Purpose and scope.

    (a) In an effort to maintain a safe and orderly environment within 
its institutions, the Bureau of Prisons operates control unit programs 
intended to place into a separate unit those inmates who are unable to 
function in a less restrictive environment without being a threat to 
others or to the orderly operation of the institution. The Bureau of 
Prisons provides written criteria for the:
    (1) Referral of an inmate for possible placement within a control 
unit;
    (2) Selection of an inmate for placement within a control unit;
    (3) Regular review of an inmate while housed in a control unit; and
    (4) Release of an inmate from a control unit.
    (b) The Bureau of Prisons provides an inmate confined within a 
control unit the opportunity to participate in programs and activities 
restricted as necessary to protect the security, good order, or 
discipline of the unit.



Sec. 541.41  Institutional referral.

    (a) The Warden shall submit a recommendation for referral of an 
inmate for placement in a control unit to the Regional Director in the 
region where the inmate is located.
    (b) The Warden shall consider the following factors in a 
recommendation for control unit placement.
    (1) Any incident during confinement in which the inmate has caused 
injury to other persons.
    (2) Any incident in which the inmate has expressed threats to the 
life or well-being of other persons.
    (3) Any incident involving possession by the inmate of deadly 
weapons or dangerous drugs.

[[Page 552]]

    (4) Any incident in which the inmate is involved in a disruption of 
the orderly operation of a prison, jail or other correctional 
institution.
    (5) An escape from a correctional institution.
    (6) An escape attempt. Depending on the circumstances, an escape 
attempt, considered alone or together with an inmate's prior history, 
may warrant consideration for a control unit placement.
    (7) The nature of the offense for which committed. An inmate may not 
be considered solely on the nature of the crime which resulted in that 
inmate's incarceration; however, the nature of the crime may be 
considered in combination with other factor(s) as described in paragraph 
(b) of this section.
    (c) The Warden may not refer an inmate for placement in a control 
unit:
    (1) If the inmate shows evidence of significant mental disorder or 
major physical disabilities as documented in a mental health evaluation 
or a physical examination;
    (2) On the basis that the inmate is a protection case, e.g., a 
homosexual, an informant, etc., unless the inmate meets other criteria 
as described in paragraph (b) of this section.



Sec. 541.42  Designation of Hearing Administrator.

    (a) The Regional Director in the region where the inmate is located 
shall review the institution's recommendation for referral of an inmate 
for placement in a control unit. If the Regional Director concurs with 
the recommendation, the Regional Director shall forward a written 
request, together with the institution's referral material, to the 
Regional Director of the region where the control unit is located. The 
Regional Director of the region where the control unit is located shall 
designate a person in the Regional Office to review the referral 
material and to conduct a hearing on the appropriateness of an inmate's 
placement in a control unit.
    (b) The Hearing Administrator shall have the following 
qualifications:
    (1) Correctional experience, including institutional work with 
inmates, processing of inmate disciplinary actions, significant 
institutional experience in observing and evaluating inmate adjustment 
and disruptive behavior, and knowledge of the options available in the 
Bureau of Prisons for dealing with such conduct;
    (2) Lack of former personal involvement in an Institution Discipline 
Committee action involving the particular inmate in incident(s) 
referred; and
    (3) Familiarity with Bureau of Prisons policies and operations, 
including the criteria for placement of inmates in different 
institutions and in a control unit.



Sec. 541.43  Hearing procedure.

    (a) The Hearing Administrator shall provide a hearing to an inmate 
recommended for placement in a control unit. The hearing ordinarily 
shall take place at the recommending or sending institution.
    (b) The hearing shall proceed as follows.
    (1) Staff shall provide an inmate with an advance written notice of 
the hearing and a copy of this rule at least 24 hours prior to the 
hearing. The notice will advise the inmate of the specific act(s) or 
other evidence which forms the basis for a recommendation that the 
inmate be transferred to a control unit, unless such evidence would 
likely endanger staff or others. If an inmate is illiterate, staff shall 
explain the notice and this rule to the inmate and document that this 
explanation has occurred.
    (2) The Hearing Administrator shall provide an inmate the service of 
a full-time staff member to represent the inmate, if the inmate so 
desires. The Hearing Administrator shall document in the record of the 
hearing an inmate's request for, or refusal of staff representation. The 
inmate may select a staff representative from the local institution. If 
the selected staff member declines or is unavailable, the inmate has the 
option of selecting another representative or, in the case of an absent 
staff member, of waiting a reasonable period (determined by the Hearing 
Administrator) for the staff member's return, or of proceeding without a 
staff representative. When an inmate is illiterate, the Warden shall 
provide a staff

[[Page 553]]

representative. The staff representative shall be available to assist 
the inmate and, if the inmate desires, shall contact witnesses and 
present favorable evidence at the hearing. The Hearing Administrator 
shall afford the staff representative adequate time to speak with the 
inmate and to interview available witnesses.
    (3) The inmate has the right to be present throughout the hearing, 
except where institutional security or good order is jeopardized. The 
Hearing Administrator may conduct a hearing in the absence of the inmate 
when the inmate refuses to appear. The Hearing Administrator shall 
document an inmate's refusal to appear, or other reason for non-
appearance, in the record of the hearing.
    (4) The inmate is entitled to present documentary evidence and to 
have witnesses appear, provided that calling witnesses would not 
jeopardize or threaten institutional security or individual safety, and 
further provided that the witnesses are available at the institution 
where the hearing is being conducted.
    (i) The evidence to be presented must be material and relevant to 
the issue as to whether the inmate can and would function in a general 
prison population without being or posing a threat to staff or others or 
to the orderly operation of the institution. The Hearing Administrator 
may not consider an attempt to reverse or repeal a prior finding of a 
disciplinary violation.
    (ii) Repetitive witnesses need not be called. Staff who recommend 
placement in a control unit are not required to appear, provided their 
recommendation is fully explained in the record. Staff who were 
involved, in any capacity, in former disciplinary proceedings need not 
be called as to their involvement in those proceedings, since this 
hearing is not to go over the factual basis for prior actions which have 
been decided.
    (iii) When a witness is not available within the institution, or not 
permitted to appear, the inmate may submit a written statement by that 
witness. The Hearing Administrator shall, upon the inmate's request, 
postpone any decision following the hearing for a reasonable time to 
permit the obtaining and forwarding of written statements.
    (iv) The Hearing Administrator shall document in the record of the 
hearing the reasons for declining to permit a witness or to receive 
documentary evidence.



Sec. 541.44  Decision of the Hearing Administrator.

    (a) At the conclusion of the hearing and following review of all 
material related to the recommendation for placement of an inmate in a 
control unit, the Hearing Administrator shall prepare a written decision 
as to whether this placement is warranted. The Hearing Administrator 
shall:
    (1) Prepare a summary of the hearing and of all information 
presented upon which the decision is based; and
    (2) Indicate the specific reasons for the decision, to include a 
description of the act, or series of acts, or evidence on which the 
decision is based.
    (b) The Hearing Administrator shall advise the inmate in writing of 
the decision. The inmate shall receive the information described in 
paragraph (a) of this section unless it is determined that the release 
of this information could pose a threat to individual safety, or 
institutional security, in which case that limited information may be 
withheld. The Hearing Administrator shall advise the inmate that the 
decision will be submitted for review of the Executive Panel. The 
Hearing Administrator shall advise the inmate that, if the inmate so 
desires, the inmate may submit an appeal of the Hearing Administrator's 
decision to the Executive Panel. This appeal, with supporting 
documentation and reasons, must be filed within five working days of the 
inmate's receipt of the Hearing Administrator's decision.
    (c) The Hearing Administrator shall send the decision, whether for 
or against placement in a control unit, and supporting documentation to 
the Executive Panel. Ordinarily this is done within 20 working days 
after conclusion of the hearing. Any reason for extension is to be 
documented.

[[Page 554]]



Sec. 541.45  Executive Panel review and appeal.

    The Executive Panel is composed of the Regional Director of the 
region where a control unit is located to which referral is being 
considered and the Assistant Director, Correctional Programs Division.
    (a) The Executive Panel shall review the decision and supporting 
documentation of the Hearing Administrator and, if submitted, the 
information contained in an inmate's appeal. The Panel shall accept or 
reject the Hearing Administrator's decision within 30 working days of 
its receipt, unless for good cause there is reason for delay, which 
shall be documented in the record.
    (b) The Executive Panel shall provide a copy of its decision to the 
Warden at the institution to which the inmate is to be transferred, to 
the inmate, to the referring Warden and region, and to the Hearing 
Administrator.
    (c) An inmate may appeal a decision of the Executive Panel, through 
the Administrative Remedy Procedure, directly to the Office of General 
Counsel, Bureau of Prisons, within 30 calendar days of the inmate's 
receipt of the Executive Panel's decision.



Sec. 541.46  Programs and services.

    The Warden shall provide the following services to a control unit 
inmate. These services must be provided unless compelling security or 
safety reasons dictate otherwise. These reasons will be documented and 
signed by the Warden, indicating the Warden's review and approval.
    (a) Education. The Warden shall assign a member of the education 
staff to the control unit on at least a part-time basis to assist in 
developing an educational program to fulfil each inmate's academic 
needs. The education staff member is ordinarily a member of the control 
unit team.
    (b) Work assignments. Staff may assign inmates to a work assignment, 
such as range orderly. The manner in which these duties are carried out 
will reflect the inmate's unit adjustment, and will assist staff in 
evaluating the inmate.
    (c) Industries (UNICOR). If an industry program exists in a control 
unit each inmate participating in this program may earn industrial pay, 
subject to the regulations of Federal Prison Industries, Inc. (UNICOR). 
The industry program is supervised by an industry foreman. The control 
unit team will determine when or if an industry assignment is 
appropriate for each inmate who submits a request for possible 
assignment to industries work.
    (d) Legal. An inmate assigned to a control unit may use that unit's 
inmate basic law library, upon request and in rotation. Consistent with 
security considerations, the law library is to include basic legal 
reference books, and ordinarily a table and chair, typewriter, paper and 
carbon. Abuse of materials in the inmate law library (for example, a 
typewriter) may result in a decision by the Warden to limit the use of 
legal materials. A decision to limit materials due to abuse must be 
documented in writing and signed by the Warden.
    (e) Recreation. The recreation program in a control unit shall 
include the following requirements:
    (1) Each inmate shall have the opportunity to receive a minimum of 
seven hours weekly recreation and exercise out of the cell.
    (2) Staff shall provide various games and exercise materials as 
consistent with security considerations and orderly operation of the 
unit. Inmates who alter or intentionally damage recreation equipment may 
be deprived of the use of that equipment in the future.
    (f) Case management services. The case manager is responsible for 
all areas of case management. This ordinarily includes preparation of 
the visiting list, notarizing documents, preparation of various reports, 
and other case management duties. The case manager is ordinarily a 
member of the control unit team.
    (g) Counselor services. The unit counselor ordinarily handles phone 
call requests, special concerns and requests of inmates, and requests 
for administrative remedy forms. The unit counselor is also available 
for consultation and for counseling as recommended in the mental health 
evaluation (see paragraph (i) of this section--Mental Health Services).

[[Page 555]]

    (h) Medical services. A member of the medical staff shall visit 
control unit inmates daily. A physician will visit the unit as the need 
arises.
    (i) Mental health services. During the first 30-day period in a 
control unit, staff shall schedule the control unit inmate for a 
psychological evaluation conducted by a psychologist. Additional 
individual evaluations shall occur every 30 days. The psychologist shall 
perform and/or supervise needed psychological services. Psychiatric 
services will be provided when necessary. Inmates requiring prescribed 
psychotropic medication are not ordinarily housed in a control unit.
    (j) Religion. Staff shall issue religious materials upon request, 
limited by security consideration and housekeeping rules in the unit. 
This material may come from an inmate's personal property or from the 
chaplain's office. The institutional chaplains shall make at least 
weekly visits to the control unit. While individual prayer and/or 
worship is allowed in a control unit, religious assemblies or group 
meetings are not allowed.
    (k) Food service and personal hygiene. Staff shall provide food 
services and personal hygiene care consistent with the requirements of 
the current rule regarding Special Housing Units.
    (l) Correspondence. Inmates confined in a control unit are provided 
correspondence privileges in accordance with the Bureau of Prisons' rule 
on Inmate Correspondence (see 28 CFR part 540).
    (m) Visiting. Visits for inmates confined in a control unit are 
conducted in a controlled visiting area, separated from regular visiting 
facilities. Staff shall allot a minimum of four hours per month visiting 
time to a control unit inmate. The number of consecutive hours visiting 
on a particular day may be limited by the number of visitors waiting to 
visit. All visitors must be on the inmate's approved visiting list.
    (n) Commissary. Staff shall establish a commissary purchase 
schedule. The amount of money which control unit inmates spend per month 
is comparable to the spending limitation for inmates residing in the 
general population. Staff may limit commissary items to ensure the 
safety and security of the unit.
    (o) Personal property. Personal property retained by an inmate in a 
control unit is to be stored in the space provided. Personal property 
items shall be limited in number and type to ensure the safety and good 
order of the unit.

[49 FR 32991, Aug. 17, 1984, as amended at 60 FR 46484, Sept. 6, 1995]



Sec. 541.47  Admission to control unit.

    Staff shall provide an inmate admitted to a control unit with:
    (a) Notice of the projected duration of the inmate's confinement in 
a control unit;
    (b) Notice of the type of personal property which is allowable in 
the unit (items made of glass or metal will not be permitted);
    (c) A summary of the guidelines and disciplinary procedures 
applicable in the unit;
    (d) An explanation of the activities in a control unit;
    (e) The expectations of the inmate's involvement in control unit 
activities; and
    (f) The criteria for release from the unit, and how those criteria 
specifically relate to this confinement period in the unit and any 
specific requirements in the inmate's individual case.



Sec. 541.48  Search of control unit inmates.

    (a) The Warden at an institution housing a control unit may order a 
digital or simple instrument search for all new admissions to the 
control unit. The Warden may also order a digital or simple instrument 
search for any inmate who is returned to the control unit following 
contact with the public. Authorization for a digital or simple 
instrument search must be in writing, signed by the Warden, with a copy 
placed in the inmate central file. The Warden's authority may not be 
delegated below the level of Acting Warden.
    (b) An inmate in a control unit may request in writing that an X-ray 
be taken in lieu of the digital search discussed in paragraph (a) of 
this section. The Warden shall approve this request, provided it is 
determined and stated in

[[Page 556]]

writing by the institution's Clinical Director or Acting Clinical 
Director (may not be further delegated) that the amount of X-ray 
exposure previously received by the inmate, or anticipated to be given 
the inmate in the immediate future, does not make the proposed X-ray 
medically unwise. Staff are to place documentation of the X-ray, and the 
inmate's signed request for it, in the inmate's central and medical 
files. The Warden's authority may not be delegated below the level of 
Acting Warden.
    (c) Staff may not conduct a digital or simple instrument search if 
it is likely to result in physical injury to the inmate. In this 
situation, the Warden, upon approval of the Regional Director, may 
authorize the institution physician to order a non-repetitive X-ray for 
the purpose of determining if contraband is concealed in or on the 
inmate. The X-ray examination may not be performed if it is determined 
by the institution physician that such an examination is likely to 
result in serious or lasting medical injury or harm to the inmate. Staff 
are to place documentation of the X-ray examination in the inmate's 
central file and medical file. The authority of the Warden and Regional 
Director may not be delegated below the level of Acting Warden and 
Acting Regional Director respectively. If neither a digital or simple 
instrument search, nor an X-ray examination may be used, the inmate is 
to be placed in a dry cell until sufficient time has passed to allow 
excretion.
    (d) Staff shall solicit the inmate's written consent prior to 
conducting a digital or simple instrument search, or, as specified in 
paragraph (c) of this section, an X-ray examination. However, the 
inmate's consent is not required.

[50 FR 25662, June 20, 1985, as amended at 60 FR 46484, Sept. 6, 1995]



Sec. 541.49  Review of control unit placement.

    (a) Unit staff shall evaluate informally and daily an inmate's 
adjustment within the control unit. Once every 30 days, the control unit 
team, comprised of the control unit manager and other members designated 
by the Warden (ordinarily to include the officer-in-charge or 
lieutenant, case manager, and education staff member assigned to the 
unit), shall meet with an inmate in the control unit. The inmate is 
required to attend the team meeting in order to be eligible for the 
previous month's stay in the control unit to be credited towards the 
projected duration of confinement in that unit. The unit team shall make 
an assessment of the inmate's progress within the unit and may make a 
recommendation as to readiness for release after considering the 
inmate's:
    (1) Unit status;
    (2) Adjustment; and
    (3) Readiness for release from the unit. (See Sec. 541.50(a))
    (b) The Warden shall serve as the review authority at the 
institutional level for unit team actions.
    (c) An inmate may appeal the Warden's decision to the Executive 
Panel within five working days of receipt of that decision. The inmate 
will receive a response to this appeal at the inmate's next appearance 
before the Executive Panel.
    (d) At least once every 60 to 90 days, the Executive Panel shall 
review the status of an inmate in a control unit to determine the 
inmate's readiness for release from the Unit. The Executive Panel shall 
consider those factors specified in Sec. 541.50(a), along with any 
recommendations by the unit team and Warden.

The decision of the Executive Panel is communicated to the inmate. 
Ordinarily, the inmate is interviewed in person at this review. If the 
inmate refuses to appear for this review, or if there is other reason 
for not having an in-person review, this will be documented.
    (e) An inmate may appeal a decision of the Executive Panel, through 
the Administrative Remedy Procedure, directly to the Office of General 
Counsel, Bureau of Prisons within 30 calendar days from the date of the 
Executive Panel's response.

[49 FR 32991, Aug. 17, 1984, as amended at 60 FR 46484, Sept. 6, 1995]



Sec. 541.50  Release from a control unit.

    (a) Only the Executive Panel may release an inmate from a control 
unit. The following factors are considered in

[[Page 557]]

the evaluation of an inmate's readiness for release from a control unit:
    (1) Relationship with other inmates and staff members, which 
demonstrates that the inmate is able to function in a less restrictive 
environment without posing a threat to others or to the orderly 
operation of the institution;
    (2) Involvement in work and recreational activities and assignments;
    (3) Adherence to institution guidelines and Bureau of Prisons rules 
and policy;
    (4) Personal grooming and cleanliness; and
    (5) Quarters sanitation.
    (b) An inmate released from a control unit may be returned:
    (1) To the institution from which the inmate was originally 
transferred;
    (2) To another federal or non-federal institution; or
    (3) Into the general population of the institution which has a 
control unit.

[49 FR 32991, Aug. 17, 1984, as amended at 60 FR 46485, Sept. 6, 1995]



  Subpart E--Procedures for Handling of HIV Positive Inmates Who Pose 
                            Danger to Others

    Source: 54 FR 11323, Mar. 17, 1989, unless otherwise noted.



Sec. 541.60  Purpose and scope.

    In an effort to maintain a safe and orderly environment within its 
institutions, the Bureau of Prisons may place in controlled housing 
status an inmate who tests HIV positive when there is reliable evidence 
that the inmate may engage in conduct posing a health risk to another 
person.



Sec. 541.61  Standard for placement in controlled housing status.

    An inmate may be placed in a controlled housing status when there is 
reliable evidence causing staff to believe that the inmate engages in 
conduct posing a health risk to others. This evidence may be the 
inmate's behavior, or statements of the inmate, or other reliable 
evidence.



Sec. 541.62  Referral for placement.

    (a) The Warden shall consider an inmate for controlled housing 
status when the inmate has been confirmed as testing HIV positive and 
when there is reliable evidence indicating that the inmate may engage in 
conduct posing a health risk to others. This evidence may come from the 
statements of the individual, repeated misconduct (including 
disciplinary actions), or other behavior suggesting that the inmate may 
engage in predatory or promiscuous sexual behavior, assaultive behavior 
where body fluids may be transmitted to another, or the sharing of 
needles.
    (b) The Warden shall submit a recommendation for referral of an 
inmate for placement in a controlled housing status to the Regional 
Director in the region where the inmate is located.
    (c) Based on the perceived health risk to others posed by the 
inmate's threatened or actual actions, the Warden may, with the 
telephonic approval of the Regional Director, temporarily (not to exceed 
20 work days) place an inmate in a special housing status (e.g., 
administrative detention, or a secure health service unit room) pending 
the inmate's appearance before the Hearing Administrator. Reasons for 
this placement, and the approval of the Regional Director, shall be 
documented in the inmate central file. The inmate should be seen daily 
by case management and medical staff while in this temporary status, and 
a psychological or psychiatric assessment report should be prepared 
during this temporary placement period.

[54 FR 11323, Mar. 17, 1989, as amended at 56 FR 31530, July 10, 1991]



Sec. 541.63  Hearing procedure.

    (a) The Regional Director in the region where the inmate is located 
shall review the institution's recommendation for referral of an inmate 
for controlled housing status. If the Regional Director concurs with the 
recommendation, the Regional Director shall designate a person in the 
Regional Office or a person at department head level or above in the 
institution to conduct a hearing on the appropriateness of an inmate's 
placement in controlled housing status. This Hearing Administrator shall 
have correctional experience, no former personal involvement in the 
instant situation,

[[Page 558]]

and a knowledge of the type of behavior that poses a health risk to 
others, and of the options available for dealing with an inmate who 
poses such a health risk to others.
    (b) The Hearing Administrator shall provide a hearing to an inmate 
recommended for controlled housing status. The hearing ordinarily shall 
take place at the institution housing the inmate.
    (c) The hearing shall proceed as follows:
    (1) Staff shall provide an inmate with an advance written notice of 
the hearing and a copy of this rule at least 24 hours prior to the 
hearing. The notice will advise the inmate of the specific act(s) or 
other evidence which forms the basis for a recommendation that the 
inmate be placed in a controlled housing status, unless such evidence 
would likely endanger staff or others. If an inmate is illiterate, staff 
shall explain the notice and this rule to the inmate and document that 
this explanation has occurred.
    (2) The Hearing Administrator shall upon request of the inmate 
provide an inmate the service of a full-time staff member to represent 
the inmate. The Hearing Administrator shall document in the record of 
the hearing an inmate's request for, or refusal of staff representation. 
The inmate may select a staff representative from the local institution. 
If the selected staff member declines for good reason or is unavailable, 
the inmate has the option of selecting another representative or, in the 
case of an absent staff member, of waiting a reasonable period 
(determined by the Hearing Administrator) for the staff member's return, 
or of proceeding without a staff representative. When an inmate is 
illiterate, the Warden shall provide a staff representative. The staff 
representative shall be available to assist the inmate and, if the 
inmate desires, shall contact witnesses and present favorable evidence 
at the hearing. The Hearing Administrator shall afford the staff 
representative adequate time to speak with the inmate and to inteview 
available witnesses.
    (3) The inmate has the right to be present throughout the hearing, 
except where institutional security or good order is jeopardized. The 
Hearing Adminstrator may conduct a hearing in the absence of the inmate 
when the inmate refuses to appear. The Hearing Administrator shall 
document an inmate's refusal to appear, or other reason for 
nonappearance, in the record of the hearing.
    (4) The inmate is entitled to present documentary evidence and to 
have witnesses appear, provided that calling witnesses would not 
jeopardize or threaten institutional security or individual safety, and 
further provided that the witnesses are available at the institution 
where the hearing is being conducted.
    (i) The evidence to be presented must be material and relevant to 
the issue as to whether the inmate can and would pose a health risk to 
others, if allowed to remain in general prison population. This evidence 
may come from the statements of the individual, repeated misconduct 
(including disciplinary actions), or other behavior suggesting that the 
inmate may engage in predatory or promiscuous sexual behavior, 
assaultive behavior where body fluids may be transmitted to others, or 
the sharing of needles.
    (ii) Repetitive witnesses need not be called. Staff who recommend 
placement in a controlled housing status are not required to appear, 
provided their recommendation is fully explained in the record.
    (iii) When a witness is not available within the institution, or not 
permitted to appear, the inmate may submit a written statement by that 
witness. The Hearing Administrator shall, upon the inmate's request, 
postpone any decision following the hearing for a reasonable time to 
permit the obtaining and forwarding of written statements.
    (iv) The Hearing Administrator shall document in the record of the 
hearing the reasons for declining to hear a witness or to receive 
documentary evidence.

[54 FR 11323, Mar. 17, 1989, as amended at 63 FR 5218, Jan. 30, 1998]

[[Page 559]]



Sec. 541.64  Decision of the Hearing Administrator.

    (a) At the conclusion of the hearing and following review of all 
material related to the recommendation for placement of an inmate in a 
controlled housing status, the Hearing Administrator shall prepare a 
written decision as to whether this placement is warranted. The Hearing 
Administrator shall:
    (1) Prepare a summary of the hearing and of all information 
presented upon which the decision is based; and
    (2) Indicate the specific reasons for the decision, to include a 
description of the act, or series of acts, or other reliable evidence on 
which the decision is based, along with evidence of the inmate's HIV 
positive status.
    (b) The Hearing Administrator shall advise the inmate in writing of 
the decision. The inmate shall receive the information described in 
paragraph (a) of this section unless it is determined that the release 
of this information could pose a threat to individual safety, or 
institutional security, in which case that limited information may be 
withheld. The Hearing Administrator shall advise the inmate that the 
decision will be submitted for review of the Regional Director in the 
region where the inmate is located. The Hearing Administrator shall 
advise the inmate that, if the inmate so desires, the inmate may submit 
an appeal of the Hearing Administrator's decision to the Regional 
Director. This appeal, with supporting documentation and reasons, must 
be filed within five working days of the inmate's receipt of the Hearing 
Administrator's decision.
    (c) The Hearing Administrator may order the continuation of the 
inmate in special housing pending review by the Regional Director. The 
Hearing Administrator should state the reasons for this order in the 
record of the Hearing.
    (d) The Hearing Administrator shall send the decision, whether for 
or against placement in a controlled housing status, and supporting 
documentation to the Regional Director. Ordinarily, this is done within 
20 working days after conclusion of the hearing. Any reason for 
extension is to be documented.



Sec. 541.65  Regional Director review and appeal.

    (a) The Regional Director shall review the decision and supporting 
documentation of the Hearing Administrator and, if submitted, the 
information contained in an inmate's appeal. The Regional Director shall 
accept or reject the Hearing Administrator's decision within 30 working 
days of its receipt, unless for good cause there is reason for delay, 
which shall be documented in the record. The authority of the Regional 
Director may not be delegated below the level of acting Regional 
Director.
    (b) The Regional Director shall provide a copy of his decision to 
the Warden at the institution housing the inmate, to the inmate, and to 
the Hearing Administrator.
    (c) An inmate may appeal a decision of the Regional Director, 
through the Administrative Remedy Program, directly to the National 
Inmate Appeals Administrator, Office of General Counsel, within 30 
calendar days of the Regional Director's decision (see 28 CFR 542.15).

[54 FR 11323, Mar. 17, 1989, as amended at 63 FR 5218, Jan. 30, 1998]



Sec. 541.66  Programs and services.

    To the extent consistent with available resources and the security 
needs of the institution, an inmate in controlled housing status is to 
be considered for activities and privileges afforded to the general 
population. This includes, but is not limited to, providing an inmate 
with the opportunity for participation in an education program, library 
services, counseling, and religious guidance, as well as access to case 
management, medical and mental health assistance, and legal services, 
including access to the institution's law libraries. An inmate in 
controlled housing status should be afforded at least five hours weekly 
recreation and exercise out of the cell. The recreation shall be by 
himself or under close supervision. Unless there are compelling reasons 
to the contrary, institutions shall provide commissary privileges and 
reasonable amounts of personal property. The Warden may restrict for 
reasons of security, fire safety, or

[[Page 560]]

housekeeping the amount of personal property that an inmate may retain 
while in controlled housing status. An inmate shall be permitted to have 
a radio, provided it is equipped with ear plugs. Visits shall be 
carefully monitored.



Sec. 541.67  Review of controlled housing status.

    (a) Staff designated by the Warden shall evaluate regularly an 
inmate's adjustment while in controlled housing status. A medical staff 
member shall see the inmate daily, and regularly record medical and 
behavioral impressions. Once every 90 days, staff, comprised of a 
correctional and case management supervisor, and a member of the medical 
staff, shall meet with the inmate. The inmate is required to attend this 
meeting in order to be considered for release to the general population. 
Any refusal by the inmate to attend this meeting will be documented. 
Staff, at this meeting, shall make an assessment of the inmate's 
adjustment while in controlled housing and the likely health threat the 
inmate poses to others by his actions.
    (b) The Warden shall serve as the review authority at the 
institutional level, and shall make a recommendation to the Regional 
Director when he believes the inmate should be considered for release 
from controlled housing.
    (c) An inmate may appeal a Warden's decision not to recommend 
release from controlled housing to the Regional Director within five 
working days of receipt of that decision.
    (d) Upon recommendation of the Warden, or upon appeal from the 
inmate, the Regional Director may decide whether or not to release the 
inmate to general population from controlled housing status.
    (e) An inmate may appeal a decision of the Regional Director, 
through the Administrative Remedy Program, directly to the National 
Inmate Appeals Administrator, Office of General Counsel, within 30 
calendar days of the Regional Director's decision (see 28 CFR 542.15).

[54 FR 11323, Mar. 17, 1989; 54 FR 18198, Apr. 27, 1989, as amended at 
63 FR 5218, Jan. 30, 1998]



Sec. 541.68  Release from controlled housing status.

    (a) Only the Regional Director may release an inmate from controlled 
housing status. The following factors are considered in the evaluation 
of an inmate's readiness for return to the general population:
    (1) Relationship with other inmates and staff members, which 
demonstrate that the inmate is able to function in a less restrictive 
environment without posing a health threat to others or to the orderly 
operation of the institution;
    (2) Involvement in work and recreational activities and assignments 
or other programs; and
    (3) Adherence to institution guidelines and Bureau of Prisons rules 
and policy.
    (b) An inmate released from a controlled housing status may be 
returned to the general population of that institution, or to another 
federal or non-federal institution.



PART 542--ADMINISTRATIVE REMEDY--Table of Contents




Subpart A [Reserved]

                Subpart B--Administrative Remedy Program

Sec.
542.10  Purpose and scope.
542.11  Responsibility.
542.12  [Reserved]
542.13  Informal resolution.
542.14  Initial filing.
542.15  Appeals.
542.16  Assistance.
542.17  Resubmission.
542.18  Response time.
542.19  Access to indexes and responses.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984, as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510.

    Source: 61 FR 88, Jan. 2, 1996, unless otherwise noted.

Subpart A [Reserved]

[[Page 561]]



                Subpart B--Administrative Remedy Program



Sec. 542.10  Purpose and scope.

    (a) Purpose. The purpose of the Administrative Remedy Program is to 
allow an inmate to seek formal review of an issue relating to any aspect 
of his/her own confinement. An inmate may not submit a Request or Appeal 
on behalf of another inmate.
    (b) Scope. This Program applies to all inmates in institutions 
operated by the Bureau of Prisons, to inmates designated to contract 
Community Corrections Centers (CCCs) under Bureau of Prisons 
responsibility, and to former inmates for issues that arose during their 
confinement. This Program does not apply to inmates confined in other 
non-federal facilities.
    (c) Statutorily-mandated procedures. There are statutorily-mandated 
procedures in place for tort claims (28 CFR part 543, subpart C), Inmate 
Accident Compensation claims (28 CFR part 301), and Freedom of 
Information Act or Privacy Act requests (28 CFR part 513, subpart D). If 
an inmate raises an issue in a request or appeal that cannot be resolved 
through the Administrative Remedy Program, the Bureau will refer the 
inmate to the appropriate statutorily-mandated procedures.

[67 FR 50805, Aug. 6, 2002]



Sec. 542.11  Responsibility.

    (a) The Community Corrections Manager (CCM), Warden, Regional 
Director, and General Counsel are responsible for the implementation and 
operation of the Administrative Remedy Program at the Community 
Corrections Center (CCC), institution, regional and Central Office 
levels, respectively, and shall:
    (1) Establish procedures for receiving, recording, reviewing, 
investigating, and responding to Administrative Remedy Requests 
(Requests) or Appeals (Appeals) submitted by an inmate;
    (2) Acknowledge receipt of a Request or Appeal by returning a 
receipt to the inmate;
    (3) Conduct an investigation into each Request or Appeal;
    (4) Respond to and sign all Requests or Appeals filed at their 
levels. At the regional level, signatory authority may be delegated to 
the Deputy Regional Director. At the Central Office level, signatory 
authority may be delegated to the National Inmate Appeals Administrator. 
Signatory authority extends to staff designated as acting in the 
capacities specified in this Sec. 542.11, but may not be further 
delegated without the written approval of the General Counsel.
    (b) Inmates have the responsibility to use this Program in good 
faith and in an honest and straightforward manner.



Sec. 542.12  [Reserved]



Sec. 542.13  Informal resolution.

    (a) Informal resolution. Except as provided in Sec. 542.13(b), an 
inmate shall first present an issue of concern informally to staff, and 
staff shall attempt to informally resolve the issue before an inmate 
submits a Request for Administrative Remedy. Each Warden shall establish 
procedures to allow for the informal resolution of inmate complaints.
    (b) Exceptions. Inmates in CCCs are not required to attempt informal 
resolution. An informal resolution attempt is not required prior to 
submission to the Regional or Central Office as provided for in 
Sec. 542.14(d) of this part. An informal resolution attempt may be 
waived in individual cases at the Warden or institution Administrative 
Remedy Coordinator's discretion when the inmate demonstrates an 
acceptable reason for bypassing informal resolution.



Sec. 542.14  Initial filing.

    (a) Submission. The deadline for completion of informal resolution 
and submission of a formal written Administrative Remedy Request, on the 
appropriate form (BP-9), is 20 calendar days following the date on which 
the basis for the Request occurred.
    (b) Extension. Where the inmate demonstrates a valid reason for 
delay, an extension in filing time may be allowed. In general, valid 
reason for delay means a situation which prevented the inmate from 
submitting the request within the established time frame. Valid reasons 
for delay include the following: an extended period in-

[[Page 562]]

transit during which the inmate was separated from documents needed to 
prepare the Request or Appeal; an extended period of time during which 
the inmate was physically incapable of preparing a Request or Appeal; an 
unusually long period taken for informal resolution attempts; indication 
by an inmate, verified by staff, that a response to the inmate's request 
for copies of dispositions requested under Sec. 542.19 of this part was 
delayed.
    (c) Form. (1) The inmate shall obtain the appropriate form from CCC 
staff or institution staff (ordinarily, the correctional counselor).
    (2) The inmate shall place a single complaint or a reasonable number 
of closely related issues on the form. If the inmate includes on a 
single form multiple unrelated issues, the submission shall be rejected 
and returned without response, and the inmate shall be advised to use a 
separate form for each unrelated issue. For DHO and UDC appeals, each 
separate incident report number must be appealed on a separate form.
    (3) The inmate shall complete the form with all requested 
identifying information and shall state the complaint in the space 
provided on the form. If more space is needed, the inmate may use up to 
one letter-size (8\1/2\'' by 11'') continuation page. The inmate must 
provide an additional copy of any continuation page. The inmate must 
submit one copy of supporting exhibits. Exhibits will not be returned 
with the response. Because copies of exhibits must be filed for any 
appeal (see Sec. 542.15(b)(3)), the inmate is encouraged to retain a 
copy of all exhibits for his or her personal records.
    (4) The inmate shall date and sign the Request and submit it to the 
institution staff member designated to receive such Requests (ordinarily 
a correctional counselor). CCC inmates may mail their Requests to the 
CCM.
    (d) Exceptions to initial filing at institution--(1) Sensitive 
issues. If the inmate reasonably believes the issue is sensitive and the 
inmate's safety or well-being would be placed in danger if the Request 
became known at the institution, the inmate may submit the Request 
directly to the appropriate Regional Director. The inmate shall clearly 
mark ``Sensitive'' upon the Request and explain, in writing, the reason 
for not submitting the Request at the institution. If the Regional 
Administrative Remedy Coordinator agrees that the Request is sensitive, 
the Request shall be accepted. Otherwise, the Request will not be 
accepted, and the inmate shall be advised in writing of that 
determination, without a return of the Request. The inmate may pursue 
the matter by submitting an Administrative Remedy Request locally to the 
Warden. The Warden shall allow a reasonable extension of time for such a 
resubmission.
    (2) DHO appeals. DHO appeals shall be submitted initially to the 
Regional Director for the region where the inmate is currently located.
    (3) Control Unit appeals. Appeals related to Executive Panel Reviews 
of Control Unit placement shall be submitted directly to the General 
Counsel.
    (4) Controlled housing status appeals. Appeals related to the 
Regional Director's review of controlled housing status placement may be 
filed directly with the General Counsel.



Sec. 542.15  Appeals.

    (a) Submission. An inmate who is not satisfied with the Warden's 
response may submit an Appeal on the appropriate form (BP-10) to the 
appropriate Regional Director within 20 calendar days of the date the 
Warden signed the response. An inmate who is not satisfied with the 
Regional Director's response may submit an Appeal on the appropriate 
form (BP-11) to the General Counsel within 30 calendar days of the date 
the Regional Director signed the response. When the inmate demonstrates 
a valid reason for delay, these time limits may be extended. Valid 
reasons for delay include those situations described in Sec. 542.14(b) 
of this part. Appeal to the General Counsel is the final administrative 
appeal.
    (b) Form. (1) Appeals to the Regional Director shall be submitted on 
the form designed for regional Appeals (BP-10) and accompanied by one 
complete copy or duplicate original of the institution Request and 
response. Appeals to the General Counsel shall be submitted on the form 
designed for

[[Page 563]]

Central Office Appeals (BP-11) and accompanied by one complete copy or 
duplicate original of the institution and regional filings and their 
responses. Appeals shall state specifically the reason for appeal.
    (2) An inmate may not raise in an Appeal issues not raised in the 
lower level filings. An inmate may not combine Appeals of separate lower 
level responses (different case numbers) into a single Appeal.
    (3) An inmate shall complete the appropriate form with all requested 
identifying information and shall state the reasons for the Appeal in 
the space provided on the form. If more space is needed, the inmate may 
use up to one letter-size (8\1/2\x11) continuation 
page. The inmate shall provide two additional copies of any continuation 
page and exhibits with the regional Appeal, and three additional copies 
with an Appeal to the Central Office (the inmate is also to provide 
copies of exhibits used at the prior level(s) of appeal). The inmate 
shall date and sign the Appeal and mail it to the appropriate Regional 
Director, if a Regional Appeal, or to the National Inmate Appeals 
Administrator, Office of General Counsel, if a Central Office Appeal 
(see 28 CFR part 503 for addresses of the Central Office and Regional 
Offices).



Sec. 542.16  Assistance.

    (a) An inmate may obtain assistance from another inmate or from 
institution staff in preparing a Request or an Appeal. An inmate may 
also obtain assistance from outside sources, such as family members or 
attorneys. However, no person may submit a Request or Appeal on the 
inmate's behalf, and obtaining assistance will not be considered a valid 
reason for exceeding a time limit for submission unless the delay was 
caused by staff.
    (b) Wardens shall ensure that assistance is available for inmates 
who are illiterate, disabled, or who are not functionally literate in 
English. Such assistance includes provision of reasonable accommodation 
in order for an inmate with a disability to prepare and process a 
Request or an Appeal.



Sec. 542.17  Resubmission.

    (a) Rejections. The Coordinator at any level (CCM, institution, 
region, Central Office) may reject and return to the inmate without 
response a Request or an Appeal that is written by an inmate in a manner 
that is obscene or abusive, or does not meet any other requirement of 
this part.
    (b) Notice. When a submission is rejected, the inmate shall be 
provided a written notice, signed by the Administrative Remedy 
Coordinator, explaining the reason for rejection. If the defect on which 
the rejection is based is correctable, the notice shall inform the 
inmate of a reasonable time extension within which to correct the defect 
and resubmit the Request or Appeal.
    (c) Appeal of rejections. When a Request or Appeal is rejected and 
the inmate is not given an opportunity to correct the defect and 
resubmit, the inmate may appeal the rejection, including a rejection on 
the basis of an exception as described in Sec. 542.14(d), to the next 
appeal level. The Coordinator at that level may affirm the rejection, 
may direct that the submission be accepted at the lower level (either 
upon the inmate's resubmission or direct return to that lower level), or 
may accept the submission for filing. The inmate shall be informed of 
the decision by delivery of either a receipt or rejection notice.



Sec. 542.18  Response time.

    If accepted, a Request or Appeal is considered filed on the date it 
is logged into the Administrative Remedy Index as received. Once filed, 
response shall be made by the Warden or CCM within 20 calendar days; by 
the Regional Director within 30 calendar days; and by the General 
Counsel within 40 calendar days. If the Request is determined to be of 
an emergency nature which threatens the inmate's immediate health or 
welfare, the Warden shall respond not later than the third calendar day 
after filing. If the time period for response to a Request or Appeal is 
insufficient to make an appropriate decision, the time for response may 
be extended once by 20 days at the institution level, 30 days at the 
regional level, or 20 days at the Central Office level. Staff shall 
inform the inmate of this

[[Page 564]]

extension in writing. Staff shall respond in writing to all filed 
Requests or Appeals. If the inmate does not receive a response within 
the time allotted for reply, including extension, the inmate may 
consider the absence of a response to be a denial at that level.



Sec. 542.19  Access to indexes and responses.

    Inmates and members of the public may request access to 
Administrative Remedy indexes and responses, for which inmate names and 
Register Numbers have been removed, as indicated below. Each institution 
shall make available its index, and the indexes of its regional office 
and the Central Office. Each regional office shall make available its 
index, the indexes of all institutions in its region, and the index of 
the Central Office. The Central Office shall make available its index 
and the indexes of all institutions and regional offices. Responses may 
be requested from the location where they are maintained and must be 
identified by Remedy ID number as indicated on an index. Copies of 
indexes or responses may be inspected during regular office hours at the 
locations indicated above, or may be purchased in accordance with the 
regular fees established for copies furnished under the Freedom of 
Information Act (FOIA).



PART 543--LEGAL MATTERS--Table of Contents




Subpart A [Reserved]

                   Subpart B--Inmate Legal Activities

Sec.
543.10  Purpose and scope.
543.11  Legal research and preparation of legal documents.
543.12  Retention of attorneys.
543.13  Visits by attorneys.
543.14  Limitation or denial of attorney visits and correspondence.
543.15  Legal aid program.
543.16  Other paralegals, clerks, and legal assistants.

                   Subpart C--Federal Tort Claims Act

543.30  Purpose and scope.
543.31  Filing a claim.
543.32  Processing the claim.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to Offenses 
committed after that date), 5039; 28 U.S.C. 509, 510, 1346(b), 2671-80; 
28 CFR 0.95-0.99, 0.172, 14.1-11.

Subpart A [Reserved]



                   Subpart B--Inmate Legal Activities

    Source: 44 FR 38263, June 29, 1979, unless otherwise noted.



Sec. 543.10  Purpose and scope.

    The Bureau of Prisons affords an inmate reasonable access to legal 
materials and counsel, and reasonable opportunity to prepare legal 
documents. The Warden shall establish an inmate law library, and 
procedures for access to legal reference materials and to legal counsel, 
and for preparation of legal documents.

[46 FR 59509, Dec. 4, 1981]



Sec. 543.11  Legal research and preparation of legal documents.

    (a) The Warden shall make materials in the inmate law library 
available whenever practical, including evening and weekend hours. The 
Warden shall allow an inmate a reasonable amount of time, ordinarily 
during the inmate's leisure time (that is, when the inmate is not 
participating in a scheduled program or work assignment), to do legal 
research and to prepare legal documents. Where practical, the Warden 
shall allow preparation of documents in living quarters during an 
inmate's leisure time.
    (b) The Warden shall periodically ensure that materials in each 
inmate law library are kept intact and that lost or damaged materials 
are replaced.
    (c) Staff shall advise an inmate of rules and local procedures 
governing use of the inmate law library. Unauthorized possession of 
library materials by an inmate constitutes a prohibited act, generally 
warranting disciplinary action (see part 541 of this chapter).
    (d) An inmate's legal materials include but are not limited to the 
inmate's pleadings and documents (such as a presentence report) that 
have been filed in court or with another judicial or administrative 
body, drafts of pleadings to be submitted by the inmate to

[[Page 565]]

a court or with other judicial or administrative body which contain the 
inmate's name and/or case caption prominently displayed on the first 
page, documents pertaining to an inmate's administrative case, 
photocopies of legal reference materials, and legal reference materials 
which are not available in the institution main law library (or basic 
law library in a satellite camp).
    (1) An inmate may solicit or purchase legal materials from outside 
the institution. The inmate may receive the legal materials in 
accordance with the provisions on incoming publications or 
correspondence (see 28 CFR part 540, subparts B and F) or through an 
authorized attorney visit from a retained attorney. The legal materials 
are subject to inspection and may be read or copied unless they are 
received through an authorized attorney visit from a retained attorney 
or are properly sent as special mail (for example, mail from a court or 
from an attorney), in which case they may be inspected for contraband or 
for the purpose of verifying that the mail qualifies as special mail.
    (2) Staff may allow an inmate to possess those legal materials which 
are necessary for the inmate's own legal actions. Staff may also allow 
an inmate to possess the legal materials of another inmate subject to 
the limitations of paragraph (f)(2) of this section. The Warden may 
limit the amount of legal materials an inmate may accumulate for 
security or housekeeping reasons.
    (e) An inmate is responsible for submitting his documents to court. 
Institution staff who are authorized to administer oaths shall be 
available to provide necessary witnessing of these documents, as 
requested by inmates and at times scheduled by staff.
    (f)(1) Except as provided for in paragraph (f)(4) of this section, 
an inmate may assist another inmate in the same institution during his 
or her leisure time (as defined in paragraph (a) of this section) with 
legal research and the preparation of legal documents for submission to 
a court or other judicial body.
    (2) Except as provided for in paragraph (f)(4) of this section, an 
inmate may possess another inmate's legal materials while assisting the 
other inmate in the institution's main law library and in another 
location if the Warden so designates.
    (i) The assisting inmate may not remove another inmate's legal 
materials, including copies of the legal materials, from the law library 
or other designated location. An assisting inmate is permitted to make 
handwritten notes and to remove those notes from the library or other 
designated location if the notes do not contain a case caption or 
document title or the name(s) of any inmate(s). The assisting inmate may 
also develop and possess handwritten drafts of pleadings, so long as the 
draft pleadings do not contain a case caption or document title or the 
name(s) of any inmate(s). These notes and drafts are not considered to 
be the assisting inmate's legal property, and when the assisting inmate 
has these documents outside the law library or other designated 
location, they are subject to the property limitations in Sec. 553.11(a) 
of this chapter.
    (ii) Although the inmate being assisted need not remain present in 
the law library or other designated location while the assistance is 
being rendered, that inmate is responsible for providing and retrieving 
his or her legal materials from the library or other designated 
location. Ordinarily, the inmate must provide and retrieve his or her 
legal materials during his or her leisure time. An inmate with an 
imminent court deadline may request a brief absence from a scheduled 
program or work assignment in order to provide or retrieve legal 
materials from an assisting inmate.
    (3) The Warden may give special consideration to the legal needs of 
inmates in mental health seclusion status in federal medical centers or 
to inmates in controlled housing.
    (4) The Warden at any institution may impose limitations on an 
inmate's assistance to another inmate in the interest of institution 
security, good order, or discipline.
    (g) The institution staff shall, upon an inmate's request and at 
times scheduled by staff, duplicate legal documents if the inmate 
demonstrates

[[Page 566]]

that more than one copy must be submitted to court and that the 
duplication cannot be accomplished by use of carbon paper. The inmate 
shall bear the cost, and the duplication shall be done so as not to 
interfere with regular institution operations. Staff may waive the cost 
if the inmate is without funds or if the material to be duplicated is 
minimal, and the inmate's requests for duplication are not large or 
excessive.
    (h) Unless clearly impractical, the Warden shall allow an inmate 
preparing legal documents to use a typewriter, or, if the inmate cannot 
type, to have another inmate type his documents. The Warden may allow 
the inmate to hire a public stenographer to type documents outside the 
institution, but the institution may not assume the expense of hiring 
the public stenographer. Staff shall advise the inmate of any delay in 
the typing of which they have received notice from the stenographer.
    (i) The Warden shall give special time allowance for research and 
preparation of documents to an inmate who demonstrates a requirement to 
meet an imminent court deadline. Otherwise, each inmate shall continue 
his regular institutional activities without undue disruption by legal 
activities.
    (j) With consideration of the needs of other inmates and the 
availability of staff and other resources, the Warden shall provide an 
inmate confined in disciplinary segregation or administrative detention 
a means of access to legal materials, along with an opportunity to 
prepare legal documents. The Warden shall allow an inmate in segregation 
or detention a reasonable amount of personal legal materials. In no case 
shall the amount of personal legal materials be such as to pose a fire, 
sanitation, security, or housekeeping hazard.

[44 FR 38263, June 29, 1979, as amended at 62 FR 4893, Jan. 31, 1997]



Sec. 543.12  Retention of attorneys.

    (a) The Warden shall allow an inmate to contact and retain 
attorneys. With the written consent of the inmate, staff may advise an 
attorney of the inmate's available funds. Staff may not interfere with 
selection and retention of attorneys if the inmate has attained majority 
and is mentally competent. If the inmate is a mental incompetent or a 
minor, the Warden shall refer to the inmate's guardian or to the 
appropriate court all matters concerning the retention and payment of 
attorneys.
    (b) The Bureau of Prisons may not act as guarantor or collector of 
fees. As to correspondence with attorneys and telephone calls to 
attorneys, see part 540 of this chapter.



Sec. 543.13  Visits by attorneys.

    (a) The Warden shall, under the conditions of this section, permit 
visits by the retained, appointed, or prospective attorney of an inmate 
or by an attorney who wishes to interview an inmate as a witness.
    (b) The Warden generally may not limit the frequency of attorney 
visits since the number of visits necessary is dependent upon the nature 
and urgency of the legal problems involved. The Warden shall set the 
time and place for visits, which ordinarily take place during regular 
visiting hours. Attorney visits shall take place in a private conference 
room, if available, or in a regular visiting room in an area and at a 
time designed to allow a degree of privacy. The Warden may make 
exceptions according to local conditions or for an emergency situation 
demonstrated by the inmate or visiting attorney.
    (c) The attorney shall make an advance appointment for the visit 
through the Warden prior to each visit; however, the Warden shall make 
every effort to arrange for a visit when prior notification is not 
practical.
    (d) The Warden may require an attorney to indicate where he is 
licensed as an attorney and how that fact may be verified. Prior to each 
appointment or visit, the Warden shall require each attorney to identify 
himself and to confirm that he wishes to visit an inmate who has 
requested his visit or whom he represents or whom he wishes to interview 
as a witness. The Warden may not ask the attorney to state the subject 
matter of the law suit or interview. If there is any question about the 
identity of the visitor or his qualification as an attorney in good 
standing, the Warden shall refer the matter to the Regional Counsel.

[[Page 567]]

    (e) Staff may not subject visits between an attorney and an inmate 
to auditory supervision. The Warden may permit tape recordings to be 
used by an attorney during the course of a visit only if the attorney 
states in writing in advance of the interview that the sole purpose of 
the recording is to facilitate the attorney-client or attorney-witness 
relationship.
    (f) The Warden may, at any time, subject an attorney to a search of 
his person and belongings for the purpose of ascertaining if contraband 
is present, as a condition of visiting an inmate.



Sec. 543.14  Limitation or denial of attorney visits and correspondence.

    (a) An act by an attorney which violates Bureau regulations or 
institution guidelines and which threatens the security, good order, or 
discipline of the institution is grounds for limitation or denial by the 
Warden of the attorney's privileged visitation and correspondence 
rights. Acts by an attorney which may warrant such limitation or denial 
include, for example the following:
    (1) A false statement as to the attorney's identity or 
qualifications;
    (2) A plan, attempt, or act to introduce contraband into the 
institution;
    (3) A conspiracy to commit, an attempt to commit, or the actual 
commission of an act of violence within an institution; and
    (4) Encouraging an inmate to violate the law, Bureau of Prisons 
rules, or local implementing guidelines.
    (b) Unless the breach of regulations is extreme or repeated, 
limitation rather than a denial of visitation or correspondence rights 
is proper, especially where the inmate is represented by the attorney 
and is confronted with a court deadline. For example, the Warden may 
subject an attorney to a search of his person and belongings or may 
permit the attorney only non-privileged correspondence. The Warden shall 
also consider referral of the matter to the state agency regulating the 
attorney's professional conduct.
    (c) An act by an inmate in violation of Bureau regulations or 
institution guidelines warrants a limitation by the Warden of the 
inmate's correspondence or visiting rights with attorneys only if 
necessary to protect institution security, good order, or discipline. 
The Warden may not deny correspondence or visiting rights with attorneys 
generally.
    (d) The attorney may appeal any limitation or denial by the Warden 
of attorney visits or correspondence rights to the Regional Director. 
The inmate affected may appeal through the Administrative Remedy 
Procedures.



Sec. 543.15  Legal aid program.

    (a) A legal aid program which is funded or approved by the Bureau is 
expected to provide a broad range of legal assistance to inmates. Staff 
shall allow these programs generally to operate with the same 
independence as privately retained attorneys. The Warden shall refer a 
request or decision to terminate or restrict a program, or individual 
participants in a program, to the Regional Counsel.
    (b) In order to promote the inmate-program relationship, the Warden 
shall give those students or legal assistants working in legal aid 
programs the same status as attorneys with respect to visiting and 
correspondence except where specific exceptions are made in this section 
and in part 540 of this chapter.
    (c) An attorney or law school professor shall supervise students and 
legal assistants participating in the program. The supervisor shall 
provide the Warden with a signed statement accepting professional 
responsibility for acts of each student or legal assistant affecting the 
institution. The Warden may require each student or legal assistant to 
complete and sign a personal history statement and a pledge to abide by 
Bureau regulations and institution guidelines. If necessary to maintain 
security or good order in the institution, the Warden may prohibit a 
student or legal assistant from visiting or corresponding with an 
inmate.



Sec. 543.16  Other paralegals, clerks, and legal assistants.

    (a) The Bureau of Prisons recognizes the use of assistants by 
attorneys to perform legal tasks and, with proper controls and 
exceptions enumerated in this section and in part 540 of this chapter, 
accords such assistants the

[[Page 568]]

same status as attorneys with respect to visiting and correspondence.
    (b) The attorney who employs an assistant and who wishes the 
assistant to visit or correspond with an inmate on legal matters shall 
provide the Warden with a signed statement including:
    (1) Certification of the assistant's ability to perform in this role 
and awareness of the responsibility of this position;
    (2) A pledge to supervise the assistant's activities; and
    (3) Acceptance of personal and professional responsibility for all 
acts of the assistant which may affect the institution, its inmates, and 
staff. The Warden may require each assistant to fill out and sign a 
personal history statement and a pledge to abide by Bureau regulations 
and institution guidelines. If necessary to maintain security or good 
order in the institution, the Warden may prohibit a legal assistant from 
visiting or corresponding with an inmate.



                   Subpart C--Federal Tort Claims Act

    Source: 65 FR 34364, May 26, 2000, unless otherwise noted.



Sec. 543.30  Purpose and scope.

    Pursuant to the Federal Tort Claims Act, a claim for money damages 
for personal injury or death and/or damage to or loss of property must 
be filed against the United States by the injured party with the 
appropriate Federal agency for administrative action. General provisions 
for processing administrative claims under the Federal Tort Claims Act 
are contained in 28 CFR part 14. The provisions in this subpart describe 
the procedures to follow when filing an administrative tort claim with 
the Bureau of Prisons.



Sec. 543.31  Filing a claim.

    (a) Who may file a claim? You may file a claim if you are the 
injured person or the owner of the damaged or lost property. A person 
acting on your behalf as an agent, executor, administrator, parent, 
guardian, or other representative may file a claim for you if the person 
provides a written statement signed by you giving that person permission 
to act for you. A representative may also file a claim for wrongful 
death. If you hire a lawyer or authorize a representative to act on your 
behalf, the agency will correspond only with that representative, and 
will not continue to correspond with you.
    (b) Where do I obtain a form for filing a claim? You may obtain a 
form from staff in the Central Office, Regional Offices, Bureau 
institutions, or staff training centers.
    (c) Where do I file the claim? You may either mail or deliver the 
claim to the regional office in the region where the claim occurred. If 
the loss or injury occurred in a specific regional office or within the 
geographical boundaries of the region, you may either mail or deliver 
the claim to that regional office. If the loss or injury occurred in the 
Central Office, you may either mail or deliver the claim to the Office 
of General Counsel, Central Office. If the loss or injury occurred in 
one of the training centers, you may either mail or deliver the claim to 
the Associate General Counsel, Federal Law Enforcement Training Center. 
28 CFR part 503 lists Bureau institutions by region and also contains 
the addresses of the Central Office, regional offices and training 
centers.



Sec. 543.32  Processing the claim.

    (a) Will I receive an acknowledgment letter? Yes. If you have 
provided all necessary information to process your claim (such as time, 
date, and place where the incident occurred, and a specific sum of money 
you are requesting as damages), you will receive an acknowledgment 
letter indicating the filing date and a claim number. The filing date is 
the date your claim was first received by either the Department of 
Justice or an office of the Bureau of Prisons. You should refer to your 
claim number in all further correspondences with the agency. 
Additionally, you must inform the agency of any changes in your address. 
If you fail to provide all necessary information, your claim will be 
rejected and returned to you requesting supplemental information.
    (b) Will I be notified if my claim is transferred? Yes. If your 
claim is improperly filed, you will be notified by the responsible 
office that your claim

[[Page 569]]

was transferred to another regional office, the Central Office, a 
training center, or another agency.
    (c) Will an investigation be conducted? Yes. The regional office 
ordinarily refers the claim to the appropriate institution or office for 
investigation. You may also be required to provide additional 
information during the investigation. Your failure to respond within a 
reasonable time may result in the rejection or denial of the claim.
    (d) Who will decide my administrative claim? The Regional Counsel or 
his or her designee reviews the investigation and the supporting 
evidence and renders a decision of all claims properly filed in the 
regional office and within regional settlement authority. The Regional 
Counsel has limited settlement authority (up to an amount established by 
the Director, Bureau of Prisons). After considering the merits of the 
claim, the Regional Counsel may deny or propose a settlement of the 
claim. The General Counsel will investigate and propose settlement for 
all claims properly filed in the Central Office in accordance with 
delegated settlement authority. If the proposed settlement exceeds the 
General Counsel's authority, the General Counsel will seek approval from 
the appropriate Department of Justice officers.
    (e) Will my claim be reviewed by or referred to the Central Office? 
If the Regional Counsel recommends a proposed settlement in excess of 
the settlement authority, the claim will be forwarded, with a 
recommendation, to the Office of General Counsel, Central Office for 
their review.
    (f) Will appreciation or depreciation be considered? Yes. Staff will 
consider appreciation or depreciation of lost or damaged property in 
settling a claim.
    (g) If my claim is denied or I am dissatisfied with a settlement 
offer, what are my options? If your claim is denied or you are 
dissatisfied with a settlement offer, you may request, in writing, that 
the Bureau of Prisons reconsider your claim in the administrative stage. 
You should include additional evidence of injury or loss to support your 
request for reconsideration. If you are dissatisfied with the final 
agency action, you may file suit in an appropriate U.S. District Court 
as no further administrative action is available.
    (h) What if I accept a settlement of my claim? If you accept a 
settlement, you give up your right to bring a lawsuit against the United 
States or against any employee of the government whose action or lack of 
action gave rise to your claim.
    (i) How long will it take to get a response? Generally, you will 
receive a decision regarding your claim within six months of when you 
properly file the claim. If you have not received a letter either 
proposing a settlement or denying your claim within six months after the 
date your claim was filed, you may assume your claim is denied. You may 
proceed to file a lawsuit in the appropriate U.S. District Court.



PART 544--EDUCATION--Table of Contents




Subparts A-B [Reserved]

         Subpart C--Postsecondary Education Programs for Inmates

Sec.
544.20  Purpose and scope.
544.21  Definition.
544.22  Enrollment requirements.
544.23  Procedures.

                  Subpart D--Inmate Recreation Programs

544.30  Purpose and scope.
544.31  Definitions.
544.32  Goals.
544.33  Movies.
544.34  Inmate running events.
544.35  Art and hobbycraft.

     Subpart E--Mandatory English-as-a-Second Language Program (ESL)

544.40  Purpose and scope.
544.41  Applicability: Who must attend the ESL program.
544.42  Procedures.
544.43  Incentives.
544.44  Disciplinary action.

               Subpart F--Occupational Education Programs

544.50  Purpose and scope.
544.51  Types of occupational education programs.
544.52  Vocational training.
544.53  On-the-job-training.
544.54  Apprentice training.
544.55  Procedures for occupational education programs.

[[Page 570]]

544.56  Exploratory training.

Subpart G [Reserved]

                       Subpart H--Literacy Program

544.70  Purpose and scope.
544.71  Exceptions to required literacy program participation.
544.72  Incentives.
544.73  Program participation.
544.74  Work assignment limitations.
544.75  Disciplinary action.

    Subpart I--Education, Training and Leisure-Time Program Standards

544.80  Purpose and scope.
544.81  Program goals.
544.82  General program characteristics.
544.83  Inmate tutors.

Subpart J [Reserved]

                   Subpart K--Inmate Library Services

544.100  Purpose and scope.
544.101  Procedures.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

    Source: 44 FR 38249, June 29, 1979, unless otherwise noted.

Subparts A-B [Reserved]



         Subpart C--Postsecondary Education Programs for Inmates

    Source: 62 FR 25100, May 7, 1997, unless otherwise noted.



Sec. 544.20  Purpose and scope.

    The Bureau of Prisons offers interested inmates the opportunity to 
participate in postsecondary education programs whenever staff 
recommends such enrollment to meet a correctional goal.



Sec. 544.21  Definition.

    The term postsecondary education programs as defined in this subpart 
shall include courses of study, including correspondence courses, 
provided by junior or community colleges, four-year colleges and 
universities, and postsecondary vocational or technical schools.



Sec. 544.22  Enrollment requirements.

    Inmates ordinarily shall be required to have a verified high school 
diploma or General Educational Development (GED) certificate prior to 
enrollment in a college-level (degree) program.



Sec. 544.23  Procedures.

    (a) The Warden or designee shall appoint a postsecondary education 
coordinator (ordinarily an education staff member) who shall have the 
responsibility for coordinating the institution's postsecondary 
education program.
    (b) An inmate who wishes to participate in a postsecondary education 
program must meet with his or her unit team to determine if such 
participation meets an appropriate correctional program goal.
    (c) If unit team staff agree that the inmate's participation meets 
an appropriate correctional goal, the inmate may apply through the 
postsecondary education coordinator.
    (d) The inmate is expected to pay the tuition from personal funds or 
other sources. If resources allow, the institution may pay the tuition 
if all of the following apply:
    (1) The inmate is unable to pay for the tuition from personal funds 
or other sources;
    (2) The course is directly related to preparation for a specific 
occupation/vocation;
    (3) The course is part of a one year certificate or a two year 
Associate Arts degree program.



                  Subpart D--Inmate Recreation Programs

    Source: 58 FR 65850, Dec. 16, 1993, unless otherwise noted.



Sec. 544.30  Purpose and scope.

    The Bureau of Prisons encourages inmates to make constructive use of 
leisure time and offers movies, games, sports, social activities, arts 
and hobbycrafts, wellness and other group and individual activities.



Sec. 544.31  Definitions.

    (a) Leisure activities are a wide range of activities in which 
inmates may participate when not performing assigned

[[Page 571]]

duties. Leisure activities include participation in organized and 
informal games, sports, physical fitness, table games, hobbycrafts, 
music programs, intramural activities, social and cultural 
organizations, movies, and stage shows. Religious activities, 
psychological services, and education classes are not included within 
this definition, except when they are used specifically to encourage 
knowledge, skills, and attitudes related to leisure activity 
involvement.
    (b) Organized activities are those activities accounted for by 
registration or roster of individual participants, and occur at a 
scheduled time and place.
    (c) Art work includes all paintings and sketches rendered in any of 
the usual media (oils, pastels, crayons, pencils, inks, and charcoal).
    (d) Hobbycraft activities include ceramics, leatherwork, models, 
clay, mosaics, crochet, knitting, sculptures, woodworking, lapidary, and 
other forms consistent with institution guidelines.
    (e) Inmate wellness program activities include screening, 
assessments, goal setting, fitness/nutrition prescriptions and 
counseling.



Sec. 544.32  Goals.

    The Warden is to ensure, to the extent possible, that leisure 
activities are provided to meet social, physical, psychological, and 
overall wellness needs of inmates.
    (a) Leisure activities are designed to attract inmate participation 
regardless of ethnic, racial, age, or sex difference, or handicap 
considerations, and to enhance the potential for post-release 
involvement.
    (b) Leisure activities are designed to ensure that an inmate with 
the need has the opportunity to complete one or more activities (see 28 
CFR 544.81).



Sec. 544.33  Movies.

    If there is a program to show movies, the Supervisor of Education 
shall ensure that X-rated movies are not shown.



Sec. 544.34  Inmate running events.

    Running events will ordinarily not exceed 10 kilometers or 6.2 
miles. Appropriate medical staff and fluid supplies (e.g., water) should 
be available for all inmate running events.



Sec. 544.35  Art and hobbycraft.

    (a) An inmate engaged in art or hobbycraft activities may obtain 
materials through:
    (1) The institution art program (if one exists);
    (2) The commissary sales unit;
    (3) Special purchase commissary orders, if the sales unit is unable 
to stock a sufficient amount of the needed materials; or
    (4) Other sources approved by the Warden.
    (b) Each inmate shall identify completed art or hobbycraft products 
by showing the inmate's name and register number on the reverse side of 
the item.
    (c) Completed or abandoned art or hobbycraft articles must be 
disposed of in one of the following ways:
    (1) Upon approval of the Warden, by giving the item to an authorized 
visitor. The quantity of items will be determined by the Warden.
    (2) By mailing the item to a verified relative or approved visitor 
at the inmate's expense.
    (3) By selling, through an institution art and hobbycraft sales 
program, if one exists, after the institution price committee has 
determined the sale price.
    (4) Other methods established by the Warden.
    (d) Restrictions. Art and hobbycraft programs are intended for the 
personal enjoyment of an inmate and as an opportunity to learn a new 
leisure skill. They are not for the mass production of art and 
hobbycraft items by artists or to provide a means of supplementing an 
inmate's income.
    (1) The Warden may restrict, for reasons of security and 
housekeeping, the size and quantity of all products made in the art and 
hobbycraft program. Paintings mailed out of the institution must conform 
to both institution guidelines and postal regulations. If an inmate's 
art work or hobbycraft is on public display, the Warden may restrict the 
content of the work in accordance with community standards of decency.

[[Page 572]]

    (2) The Warden may set limits, in compliance with commissary 
guidelines, on the amount of money an inmate may spend on art or 
hobbycraft items or materials.
    (3) The Warden may restrict for reasons of security, fire safety, 
and housekeeping, the use or possession of art and hobbycraft items or 
materials.
    (4) Appropriate hobbycraft activities shall be encouraged in the 
inmate living areas. However, the Warden may limit hobbycraft projects 
in the cell/living areas to those which can be contained/stored in 
provided personal property containers. Exceptions may be made for such 
items as a painting where the size would prohibit placement in a locker. 
Hobbycraft items must be removed from the living area when completed 
unless they are approved as personal property.
    (5) The Warden shall require the inmate to mail completed hobbycraft 
articles out of the institution at the inmate's expense, or to give them 
to an authorized visitor within 30 days of completion, or to dispose of 
them through approved sales. However, articles offered for sale must be 
sold within 90 days of completion, or must be given to an authorized 
visitor or mailed out of the institution at the inmate's expense.
    (6) Where space and equipment are limited and demand is high, the 
Warden may set limits on the amount of time an inmate may use a 
hobbycraft facility, e.g., the Warden may limit an inmate's use of any 
workshop or classroom to six months to make room for new students. 
Hobbycraft participants may be rotated to allow for maximum utilization 
of the resources.
    (7) Disciplinary action may be taken against inmates found with 
unauthorized hobbycraft materials in their possession. This action may 
include the removal of the inmate from the hobbycraft program.



     Subpart E--Mandatory English-as-a-Second Language Program (ESL)

    Source: 59 FR 14724, Mar. 29, 1994, unless otherwise noted.



Sec. 544.40  Purpose and scope.

    Pursuant to the Crime Control Act of 1990 (18 U.S.C. 3624(f)), 
limited English proficient inmates confined in Federal Bureau of Prisons 
institutions are required to attend an English-as-a-Second Language 
(ESL) program until they function at the equivalence of the eighth grade 
level in competency skills. Waivers to this requirement may be granted 
by the Warden in accordance with Secs. 544.41 and 544.42.



Sec. 544.41  Applicability: Who must attend the ESL program.

    (a) All Federal prisoners who have limited English proficiency 
skills shall attend an ESL program except:
    (1) Pretrial inmates;
    (2) Inmates committed for purpose of study and observation under the 
provisions of 18 U.S.C. 4205(c) or, effective November 1, 1987, 18 
U.S.C. 3552(b);
    (3) Sentenced aliens with a deportation detainer;
    (4) Other inmates whom, for documented good cause, the Warden may 
excuse from attending the ESL program.
    (b) Staff shall document in the inmate's education file the specific 
reasons for not requiring the inmate to participate in the ESL program.



Sec. 544.42  Procedures.

    (a) The Warden at each federal institution shall ensure that inmates 
who at their initial classification are found to be limited English 
proficient are enrolled in the ESL program. Determination of limited 
English proficiency is made by staff on the basis of personal interviews 
and placement testing.
    (b) An inmate who returns to the Federal Bureau of Prisons on a new 
sentence or as a parole violator, and who has not achieved or is unable 
to demonstrate verified achievement of the eighth grade level, must 
provide verification or enroll in the ESL program until that inmate 
achieves such a grade or is granted a waiver for cause.
    (c) The Warden or designee shall assign to an education staff member 
the responsibility to coordinate the institution's ESL program. The ESL 
coordinator or designee shall meet with the inmate for the purpose of 
enrolling the inmate in the ESL program. The ESL

[[Page 573]]

coordinator shall be responsible for the completion of the official ESL 
Program Record, and shall place it in the inmate's education file.
    (d) Ordinarily, there will be no time limit for completion of the 
ESL mandatory program. However, after 240 instructional hours of 
continuous enrollment in an ESL program, excluding sick time, furloughs, 
and other excused absences from scheduled classes, the Warden shall have 
the authority to grant a waiver from further program participation. This 
waiver may be granted when it is determined that the inmate will not 
benefit from further instruction. Each exemption determination shall be 
made on an individual basis and shall be supported by documentation.

[59 FR 14724, Mar. 29, 1994, as amended at 62 FR 39916, July 24, 1997]



Sec. 544.43  Incentives.

    The Warden or designee shall establish a system of incentives to 
encourage an inmate to meet the mandatory ESL program requirements.



Sec. 544.44  Disciplinary action.

    As with any other mandatory programs, such as work assignments, 
staff may take disciplinary action against an inmate when that inmate 
refuses to enroll and participate in, or to meet the minimum 
requirements of the mandatory ESL program.



               Subpart F--Occupational Education Programs

    Source: 53 FR 10204, Mar. 29, 1988, unless otherwise noted.



Sec. 544.50  Purpose and scope.

    Each Bureau of Prisons institution provides occupational education 
programs which allow interested inmates the opportunity to obtain 
marketable skills.



Sec. 544.51  Types of occupational education programs.

    Occupational education programs include the following:
    (a) Pre-industrial training. Entry level skills training for 
employment in prison industries.
    (b) Vocational training. Instruction in specific entry-level or 
advanced skills.
    (c) On-the-job-training. Organized instruction and training under 
actual working conditions, either in the performance of a service 
through institution maintenance or in Federal Prison Industries, Inc. 
(UNICOR).
    (d) Apprentice training. Training through structured apprenticeship 
programs approved at the state and national levels by the Bureau of 
Apprenticeship and Training, U.S. Department of Labor.



Sec. 544.52  Vocational training.

    Vocational training programs will be combined, where opportunities 
exist, with pre-industrial programs of the same general skill area, and 
with ``live work'' provided by UNICOR. Similar cooperative training 
efforts, to include ``live work,'' shall also be developed for 
nonindustrial areas.
    (a) ``Live work'' is to be included within each vocational education 
program. As used in this rule, the term live work refers to a product or 
service produced by the student for actual use by the institution, 
UNICOR, or another agency. It is characterized by a specific end-product 
or service goal, as opposed to repetitive classroom work done for 
training purposes.
    (b) The provisions of this rule apply to all vocational education 
programs, regardless of funding source, except:
    (1) Programs granted an exception by the Regional Director; and
    (2) Vocational assessment programs.
    (c) Vocational training programs shall be combined with pre-
industrial training programs offering similar or related training.



Sec. 544.53  On-the-job-training.

    On-the-job-training (OJT) provides a marketable skill through the 
use of institution resources and facilities with a potential for 
training inmates in various trades and occupations. The programs are 
distinctly separate and apart from formalized vocational training 
programs and approved apprenticeship programs. Completion of OJT does 
not preclude future placement of an inmate in a formal vocational 
training program or approved apprenticeship program. To the extent 
practicable, OJT

[[Page 574]]

content is to parallel the standards required for registered 
apprenticeship programs by the Bureau of Apprenticeship and Training, 
U.S. Department of Labor.



Sec. 544.54  Apprentice training.

    Apprentice training provides an inmate the opportunity to 
participate in training which prepares the inmate for employment in 
various trades. Apprenticeship programs for inmates will be established 
in those areas of the institution which have the potential to meet the 
requirements and standards of the Bureau of Apprenticeship and Training 
(BAT), U.S. Department of Labor.



Sec. 544.55  Procedures for occupational education programs.

    (a) A specified portion of all occupational education programs is to 
consist of ``live work.''
    (b) Duplication of services should be eliminated within the 
institution among training programs, other departments, and UNICOR.



Sec. 544.56  Exploratory training.

    In addition to the occupational education programs listed in this 
rule, each Bureau of Prisons institution shall, where practicable, 
provide Exploratory Training to interested inmates. Exploratory Training 
is a study of occupations and industries for the purpose of providing 
the student with a general knowledge of the world of work, rather than 
specific skill development.

Subpart G [Reserved]



                       Subpart H--Literacy Program

    Source: 62 FR 50793, Sept. 26, 1997, unless otherwise noted.



Sec. 544.70  Purpose and scope.

    Except as provided for in Sec. 544.71, an inmate confined in a 
federal institution who does not have a verified General Educational 
Development (GED) credential or high school diploma is required to 
attend an adult literacy program for a minimum of 240 instructional 
hours or until a GED is achieved, whichever occurs first.



Sec. 544.71  Exceptions to required literacy program participation.

    (a) The following inmates are not required to attend the literacy 
program:
    (1) Pretrial inmates;
    (2) Inmates committed for purpose of study and observation under the 
provisions of 18 U.S.C. 4205(c), 4241(d), or, effective November 1, 
1987, 18 U.S.C. 3552(b);
    (3) Sentenced deportable aliens;
    (4) Inmates determined by staff to be temporarily unable to 
participate in the literacy program due to special circumstances beyond 
their control (e.g., due to a medical condition, transfer on writ, on a 
waiting list for initial placement). Such inmates, however, shall be 
required to participate when the special circumstances are no longer 
applicable.
    (b) Inmates who have been determined (on the basis of formal 
diagnostic assessment) to have a documented emotional, mental, or 
physical individual impediment to learning shall not be required to 
complete the literacy program beyond those achievement levels indicated 
as realistic by the formal diagnostic assessment.
    (c) Staff shall document in the inmate's education file the specific 
reasons for not requiring the inmate to participate in, or to complete, 
the literacy program.



Sec. 544.72  Incentives.

    The Warden shall establish a system of incentives to encourage an 
inmate to obtain a GED credential.



Sec. 544.73  Program participation.

    (a) The Warden or designee shall assign to an education staff member 
the responsibility to coordinate the institution's literacy program. 
Initially, staff shall meet with the inmate for the purpose of enrolling 
the inmate in the literacy program. Subsequently, staff shall formally 
interview each inmate involved in the literacy program when necessary 
for the purpose of determining a progress assignment. Staff shall place 
documentation of these interviews in the inmate's education file.

[[Page 575]]

    (b)(1) For the purposes of 18 U.S.C. 3624, an inmate subject to the 
Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) or the 
Prison Litigation Reform Act of 1995 (PLRA) shall be deemed to be making 
satisfactory progress toward earning a GED credential or high school 
diploma unless and until the inmate receives a progress assignment 
confirming that:
    (i) The inmate refuses to enroll in the literacy program;
    (ii) The inmate has been found to have committed a prohibited act 
that occurred in a literacy program during the last 240 instructional 
hours of the inmate's most recent enrollment in the literacy program; or
    (iii) The inmate has withdrawn from the literacy program.
    (2) When an inmate subject to VCCLEA or PLRA receives a progress 
assignment indicating that the inmate is not making satisfactory 
progress, the assignment shall be changed to indicate satisfactory 
progress only after the inmate is currently and continuously enrolled in 
a literacy program for a minimum of 240 instructional hours. Any further 
withdrawal or finding that the inmate has committed a prohibited act in 
a literacy program during the last 240 instructional hours of the 
inmate's most recent enrollment in the literacy program shall result in 
a progress assignment indicating that the inmate is again not making 
satisfactory progress (see paragraphs (b)(1)(ii) and (iii) of this 
section).
    (c) At the end of 240 instructional hours, excluding sick time, 
furloughs, or other absences from scheduled classes, the unit team 
during scheduled program review sessions shall meet with the inmate to 
encourage continued participation in the literacy program until the 
inmate earns a GED credential or high school diploma. At these meetings, 
the inmate may elect not to continue in the literacy program, and no 
disciplinary action will be taken. The inmate may not discontinue this 
program when participation is mandated by statute.



Sec. 544.74  Work assignment limitations.

    These limitations on work assignment appointment and promotion apply 
to all inmates, including those exempted from required participation in 
the literacy program by Sec. 544.71.
    (a) Appointment. (1) An inmate who does not meet the literacy 
requirement may be assigned to a grade 4 position contingent upon the 
inmate's continued enrollment in the literacy program.
    (2) An inmate ordinarily must show prior attainment of a GED 
credential or high school diploma in order to be considered for a 
commissary work assignment above minimum pay level, an institution work 
assignment above grade 4 compensation, or an industrial work assignment 
above grade four or in a non-graded incentive pay position.
    (3) If labor force needs require, an inmate who does not meet the 
literacy requirement may be assigned to an industrial non-graded 
incentive pay position if the inmate is simultaneously enrolled in a 
literacy or related program. Withdrawal from the literacy program shall 
result in termination of the assignment. Local Federal Prison Industry 
(FPI) management may elect to retain the reassigned inmate in an hourly 
rated grade 4 position.
    (b) Promotion. An inmate ordinarily must show prior attainment of a 
GED credential or high school diploma to be promoted above the minimum 
pay level or grade in a commissary work assignment, an institutional 
work assignment, or an industrial work assignment. An inmate already in 
an assignment above the minimum pay grade who had met prior literacy 
requirements when approved for promotion is eligible for further 
promotion under the prior standard. Such inmate, however, must meet the 
current standard if, due to demotion based upon a poor performance 
appraisal, he or she needs to reapply for a promotion.
    (c) Exceptions. The Warden may, for good cause, exempt inmates on a 
case-by-case basis, from the literacy requirements for work assignment 
appointment and promotion. Staff shall document such exemption in the 
inmate's education file and central file.



Sec. 544.75  Disciplinary action.

    As with other mandatory programs, such as work assignments, staff 
may take disciplinary action against an inmate lacking a GED credential 
or high

[[Page 576]]

school diploma if that inmate refuses to enroll in, and to complete, the 
mandatory 240 instructional hours of the literacy program.



    Subpart I--Education, Training and Leisure-Time Program Standards

    Source: 58 FR 65852, Dec. 16, 1993, unless otherwise noted.



Sec. 544.80  Purpose and scope.

    In consideration of inmate education, occupation, and leisure-time 
needs, the Bureau of Prisons affords inmates the opportunity to improve 
their knowledge and skills through academic, occupation and leisure-time 
activities. All institutions, except satellite camps, detention centers 
and metropolitan correctional centers, shall operate a full range of 
activities as outlined in this rule.



Sec. 544.81  Program goals.

    The Warden shall ensure that an inmate with the need, capacity, and 
sufficient time to serve, has the opportunity to:
    (a) Complete an Adult Literacy program leading to a General 
Educational Development (GED) certificate and/or high school diploma;
    (b) Complete one or more levels of English-as-a-Second Language;
    (c) Acquire or improve marketable skill through one or more programs 
of Occupation Education (OE);
    (d) Complete one or more Postsecondary Education activities;
    (e) Complete one or more Adult Continuing Education activities;
    (f) Participate in one or more leisure, fitness, wellness or sport 
activities;
    (g) Participate in a Release Preparation program; and
    (h) Participate in Career Counseling. Staff shall encourage each 
inmate to accept the responsibility to identify any specific education 
needs, set personal goals, and select activities, programs and/or work 
experiences which will help to reach those goals.

[58 FR 65852, Dec. 16, 1993, as amended at 61 FR 47795, Sept. 10, 1996]



Sec. 544.82  General program characteristics.

    (a) The Supervisor of Education shall assure that the following 
minimum criteria are met for the institution's education program set 
forth in Sec. 544.81.
    (1) There is a written curriculum which establishes measurable 
behavioral objectives and procedures.
    (2) There are clear criteria which establish minimum expectations 
for program completion, as well as provisions for the assessment of 
student progress.
    (3) There are provisions for periodic review of the relevancy and 
effectiveness of the program.
    (4) Unless unusual circumstances (e.g., college credit courses) 
exist, all programs should allow for open entry and exit, at least on a 
monthly basis.
    (5) The Supervisor of Education may establish other requirements 
necessary to assure that the stated goals of the program are achieved.
    (b) Upon an inmate's completion of a program specified in 
Sec. 544.81, staff may issue and/or review and file a certificate when 
it contributes to an inmate's future plans in such a way that it 
validates the inmate's education and training; supports the inmate's 
chances of securing employment; improves the inmate's acceptance for 
advanced education; or enhances the inmate's opportunity for success in 
any other activity the inmate chooses to pursue. The certificate will 
confirm that the inmate has completed the requirements to receive a 
certificate that fits one or a combination of the following categories:
    (1) Accredited certificates--high school diplomas and occupation 
training certificates approved or issued through local school districts, 
state departments of education, or other recognized accrediting 
educational organizations;
    (2) Postsecondary certificates and transcripts--postsecondary 
degrees or course certificates approved or issued through a sponsoring 
accredited educational institution;
    (3) General Educational Development tests--programs sponsored by the 
American Council on Education;

[[Page 577]]

    (4) Private certificates--outside agencies, private business and 
industry, other than those stated in paragraph (b)(1) of this section;
    (5) Institutional certificates--approved general education, 
occupation training, recreation, adult continuing education and social 
education certificates, issued to an inmate who completes a program, and 
when the institution cannot provide a certificate as provided in 
paragraphs (b) (1) and (4) of this section; or
    (6) Transcripts--issued to an inmate who completes general education 
programs, formal occupation training, on-the-job and apprentice training 
and work assignments. With the inmate's consent, transcripts may be sent 
to schools and colleges, business, industries and other agencies.



Sec. 544.83  Inmate tutors.

    Institutions may establish an inmate tutor/aide program. Guidelines 
shall be developed regarding the training and supervision of inmate 
tutors/aides where such programs are available.

Subpart J [Reserved]



                   Subpart K--Inmate Library Services



Sec. 544.100  Purpose and scope.

    The Bureau of Prisons provides inmates within each of its 
institutions with library services necessary for educational, cultural, 
and leisure activity. The Warden shall ensure that the inmate library 
has a wide variety of reading materials. Library services shall 
ordinarily be available to all inmates daily, including evenings and 
weekends, except in detention facilities where service shall be 
scheduled as frequently as possible to ensure reasonable access.

[46 FR 24900, May 1, 1981]



Sec. 544.101  Procedures.

    (a) The Warden shall assign a staff member (ordinarily the 
Supervisor of Education) responsibility for the inmate library.
    (b) The inmate library shall offer an inmate a variety of reading 
materials, including, but not limited to, periodicals, newspapers, 
fiction, non-fiction, and reference books.
    (c) Where the population of an institution includes inmates of 
foreign origin, staff shall attempt to provide reading materials in the 
inmates' language.
    (d) Inmate library services shall be made available to inmates in 
special housing units.
    (e) The Warden or designee may authorize the use of inmates as 
library assistants.

[46 FR 24900, May 1, 1981]



PART 545--WORK AND COMPENSATION--Table of Contents




Subpart A [Reserved]

           Subpart B--Inmate Financial Responsibility Program

Sec.
545.10  Purpose and scope.
545.11  Procedures.

           Subpart C--Inmate Work and Performance Pay Program

545.20  Purpose and scope.
545.21  Definitions.
545.22  Institution work and performance pay committee.
545.23  Inmate work/program assignment.
545.24  Inmate work conditions.
545.25  Eligibility for performance pay.
545.26  Performance pay provisions.
545.27  Inmate vacations.
545.28  Achievement awards.
545.29  Special awards.
545.30  Funds due deceased inmates.
545.31  Training.

Subpart D [Reserved]

    Authority: 5 U.S.C. 301; 18 U.S.C. 3013, 3571, 3572, 3621, 3622, 
3624, 3663, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 4126, 5006-5024 (Repealed 
October 12, 1984 as to offenses committed after that date), 5039; 28 
U.S.C. 509, 510; 28 CFR 0.95-0.99.

Subpart A [Reserved]



           Subpart B--Inmate Financial Responsibility Program

    Source: 56 FR 23477, May 21, 1991, unless otherwise noted.

[[Page 578]]



Sec. 545.10  Purpose and scope.

    The Bureau of Prisons encourages each sentenced inmate to meet his 
or her legitimate financial obligations. As part of the initial 
classification process, staff will assist the inmate in developing a 
financial plan for meeting those obligations, and at subsequent program 
reviews, staff shall consider the inmate's efforts to fulfill those 
obligations as indicative of that individual's acceptance and 
demonstrated level of responsibility. The provisions of this rule apply 
to all inmates in federal facilities, except: Study and observation 
cases, pretrial detainees, and inmates in holdover status pending 
designation.



Sec. 545.11  Procedures.

    When an inmate has a financial obligation, unit staff shall help 
that inmate develop a financial plan and shall monitor the inmate's 
progress in meeting that obligation.
    (a) Developing a financial plan. At initial classification, the unit 
team shall review an inmate's financial obligations, using all available 
documentation, including, but not limited to, the Presentence 
Investigation and the Judgment and Commitment Order(s). The financial 
plan developed shall be documented and will include the following 
obligations, ordinarily to be paid in the priority order as listed:
    (1) Special Assessments imposed under 18 U.S.C. 3013;
    (2) Court-ordered restitution;
    (3) Fines and court costs;
    (4) State or local court obligations; and
    (5) Other federal government obligations.
    (b) Payment. The inmate is responsible for making satisfactory 
progress in meeting his/her financial responsibility plan and for 
providing documentation of these payments to unit staff. Payments may be 
made from institution resources or non-institution (community) 
resources. In developing an inmate's financial plan, the unit team shall 
first subtract from the trust fund account the inmate's minimum payment 
schedule for UNICOR or non-UNICOR work assignments, set forth in 
paragraphs (b)(1) and (b)(2) of this section. The unit team shall then 
exclude from its assessment $75.00 a month deposited into the inmate's 
trust fund account. This $75.00 is excluded to allow the inmate the 
opportunity to better maintain telephone communication under the Inmate 
Telephone System (ITS).
    (1) Ordinarily, the minimum payment for non-UNICOR and UNICOR grade 
5 inmates will be $25.00 per quarter. This minimum payment may exceed 
$25.00, taking into consideration the inmate's specific obligations, 
institution resources, and community resources.
    (2) Inmates assigned grades 1 through 4 in UNICOR ordinarily will be 
expected to allot not less than 50% of their monthly pay to the payment 
process. Any allotment which is less than the 50% minimum must be 
approved by the Unit Manager. Allotments may also exceed the 50% minimum 
after considering the individual's specific obligations and resources.
    (c) Monitoring. Participation and/or progress in the Inmate 
Financial Responsibility Program will be reviewed each time staff assess 
an inmate's demonstrated level of responsible behavior.
    (d) Effects of non-participation. Refusal by an inmate to 
participate in the financial responsibility program or to comply with 
the provisions of his financial plan ordinarily shall result in the 
following:
    (1) Where applicable, the Parole Commission will be notified of the 
inmate's failure to participate;
    (2) The inmate will not receive any furlough (other than possibly an 
emergency or medical furlough);
    (3) The inmate will not receive performance pay above the 
maintenance pay level, or bonus pay, or vacation pay;
    (4) The inmate will not be assigned to any work detail outside the 
secure perimeter of the facility;
    (5) The inmate will not be placed in UNICOR. Any inmate assigned to 
UNICOR who fails to make adequate progress on his/her financial plan 
will be removed from UNICOR, and once removed, may not be placed on a 
UNICOR waiting list for six months. Any exceptions to this require 
approval of the Warden;

[[Page 579]]

    (6) The inmate shall be subject to a monthly commissary spending 
limitation more stringent than the monthly commissary spending 
limitation set for all inmates. This more stringent commissary spending 
limitation for IFRP refusees shall be at least $25 per month, excluding 
purchases of stamps, telephone credits, and, if the inmate is a common 
fare participant, Kosher/Halal certified shelf-stable entrees to the 
extent that such purchases are allowable under pertinent Bureau 
regulations;
    (7) The inmate will be quartered in the lowest housing status 
(dormitory, double bunking, etc.);
    (8) The inmate will not be placed in a community-based program;
    (9) The inmate will not receive a release gratuity unless approved 
by the Warden;
    (10) [Reserved]
    (11) The inmate will not receive an incentive for participation in 
residential drug treatment programs.

[56 FR 23477, May 21, 1991, as amended at 59 FR 15825, Apr. 4, 1994; 59 
FR 16406, Apr. 6, 1994; 59 FR 53345, Oct. 21, 1994; 60 FR 240, Jan. 3, 
1995; 61 FR 91, Jan. 2, 1996; 64 FR 72799, Dec. 28, 1999]



           Subpart C--Inmate Work and Performance Pay Program

    Source: 49 FR 38915, Oct. 1, 1984, unless otherwise noted.



Sec. 545.20  Purpose and scope.

    (a) The Bureau of Prisons operates an inmate work program within its 
institutions. To the extent practicable, the work program:
    (1) Reduces inmate idleness, while allowing the inmate to improve 
and/or develop useful job skills, work habits, and experiences that will 
assist in post-release employment; and
    (2) Ensures that activities necessary to maintain the day-to-day 
operation of the institution are completed. Sentenced inmates who are 
physically and mentally able to work are required to participate in the 
work program. When approved by the Warden or designee, drug treatment 
programming, education, or vocational training may be substituted for 
all or part of the work program.
    (b) The Warden may recognize an inmate's work performance or 
productive participation in specified correctional programs by granting 
performance pay.

[49 FR 38915, Oct. 1, 1984, as amended at 61 FR 379, Jan. 4, 1996]



Sec. 545.21  Definitions.

    (a) Physically and mentally able. For purposes of this rule, this 
shall include inmates with disabilities who, with or without reasonable 
accommodation, can perform the essential function of the work 
assignment.
    (b) Institution work assignment. A work assignment which contributes 
to the day-to-day operation of the institution (e.g., carpentry, 
plumbing, food service).
    (c) Industry assignment. A Federal Prison Industries (FPI) work 
assignment.
    (d) Commissary assignment. A Trust Fund work assignment.
    (e) Full-time work assignment. A work assignment to which an inmate 
is assigned for the entire scheduled work day.
    (f) Part-time work assignment. A work assignment to which an inmate 
is assigned for only a portion of the scheduled work day. Part-time work 
assignments are ordinarily made in conjunction with drug treatment 
programming, education, and/or vocational training programs.
    (g) Medically unassigned. An inmate who, because of medical 
restrictions, is unable to be assigned to any work program.
    (h) Light duty work assignment. A work assignment in which an inmate 
may, because of physical limitations, temporary or otherwise, only 
perform limited work functions, e.g., sedentary work, no prolonged 
standing, no lifting over 25 lbs., etc.

[49 FR 38915, Oct. 1, 1984, as amended at 61 FR 379, Jan. 4, 1996]



Sec. 545.22  Institution work and performance pay committee.

    (a) The Warden at each Bureau of Prisons institution is to establish 
an Institution Inmate Work and Performance Pay Committee to administer 
the institution's work and performance pay program. The Committee is to 
be

[[Page 580]]

comprised of an Associate Warden, the Inmate Performance Pay 
Coordinator, and any other member(s) the Warden considers appropriate.
    (b) The Committee is responsible for approving the following aspects 
of the institution's inmate work and performance pay program:
    (1) Number of inmates on each work detail;
    (2) Number of pay grades in each detail;
    (3) Job descriptions;
    (4) Performance standards;
    (5) Budgeting for special act awards; and
    (6) Bonus pay/special bonus pay procedures.



Sec. 545.23  Inmate work/program assignment.

    (a) Each sentenced inmate who is physically and mentally able is to 
be assigned to an institutional, industrial, or commissary work program. 
Exception shall be made to allow for inmate participation in an 
education, vocational, or drug abuse treatment program, on either a full 
or part-time basis, where this involvement is mandated by Bureau policy 
or statute (for example, the Literacy Program). Where such participation 
is not required by either policy or statute, exception may be made to 
allow an inmate to participate in an education, vocational, or drug 
abuse treatment program rather than work full-time upon the request of 
the inmate and approval of the Warden or designee.
    (b) A pretrial inmate may not be required to work in any assignment 
or area other than housekeeping tasks in the inmate's own cell and in 
the community living area, unless the pretrial inmate has signed a 
waiver of his or her right not to work (see 28 CFR part 551, subpart J).
    (c) Medically unassigned inmates may be required, to the extent 
medically possible, to perform housekeeping tasks in the inmate's own 
cell and in the community living area.
    (d) In making the work and/or program assignment(s), staff shall 
consider the inmate's capacity to learn, interests, requests, needs, and 
eligibility, and the availability of the assignment(s). An inmate's 
assignment shall be made with consideration of the institution's 
security and operational needs, and should be consistent with the 
safekeeping of the inmate and protection of the public.

[49 FR 38915, Oct. 1, 1984, as amended at 61 FR 379, Jan. 4, 1996]



Sec. 545.24  Inmate work conditions.

    (a) The scheduled work day for an inmate in a federal institution 
ordinarily consists of a minimum of seven hours.
    (b) An inmate is expected to report to the place of assignment at 
the required time. An inmate may not leave an assignment without 
permission.
    (c) An inmate, regardless of assignment, is expected to perform all 
assigned tasks diligently and conscientiously. Disciplinary action may 
be taken against an inmate who refuses to work, who otherwise evades 
attendance and performance standards in assigned activities, or who 
encourages others to do so.
    (d) Work, vocational, and education programs are to meet the 
appropriate minimum standards for health and safety. Safety equipment is 
to be available where needed.
    (e) An inmate is expected to perform the work assignment in a safe 
manner, using safety equipment as instructed by the work supervisor. In 
the event of any work related injury, the inmate shall notify the work 
supervisor so that appropriate action (for example, medical attention, 
and submission of necessary reports) may be taken.

[49 FR 38915, Oct. 1, 1984, as amended at 56 FR 23478, May 21, 1991; 56 
FR 31531, July 10, 1991; 61 FR 379, Jan. 4, 1996]



Sec. 545.25  Eligibility for performance pay.

    (a) An inmate may receive performance pay for accomplishments in one 
or more of the following areas:
    (1) Institution work assignment;
    (2) Literacy program (GED) participation;
    (3) Apprenticeship training; and
    (4) Vocational training courses (approved by the Bureau of Prisons 
as certified vocational training instruction).
    (b) An inmate is eligible for performance pay from the date of work 
or program assignment. An inmate is eligible to receive performance pay 
for each

[[Page 581]]

month that the inmate's performance justifies such payment.
    (c) An inmate who refuses to participate in the financial 
responsibility program shall not ordinarily receive performance pay 
above the maintenance pay level, or bonus pay, or vacation pay in 
accordance with 28 CFR part 545, subpart B.
    (d) An inmate who refuses participation, withdraws, is expelled, or 
otherwise fails attendance or examination requirements of the drug abuse 
education course shall be held at the lowest pay grade (Grade 4).

[49 FR 38915, Oct. 1, 1984. Redesignated and amended at 56 FR 23478, May 
21, 1991; 61 FR 379, Jan. 4, 1996]



Sec. 545.26  Performance pay provisions.

    (a) The Warden shall ensure that all institution work assignments 
have standardized work descriptions. Each inmate work position is 
assigned one of four pay grade levels. Factors to consider in assigning 
a grade level to the specific work position include the position's 
educational and vocational requirements, physical demands, working 
conditions (exposed to dusts, odors, etc.), and the degree of 
responsibility held by the inmate worker. The inmate assigned to a 
specific work position shall sign, and, if requested, receive a copy of, 
that position description.
    (b) In recognition of budgetary constraints and for the effective 
management of the overall performance pay program, the percentage of 
inmates assigned to each grade level is approximately as follows (Grade 
1 is highest pay):

    Grade 1--5% of the institution's allotted inmate work assignments;
    Grade 2--15% of the institution's allotted inmate work assignments;
    Grade 3--25% of the institution's allotted inmate work assignments;
    Grade 4--55% of the institution's allotted inmate work assignments.

    (c) An inmate may receive performance pay only for that portion of 
the month that the inmate was working. Performance pay may not be 
awarded retroactively.
    (d) An inmate is eligible to receive performance pay only for those 
hours during which the inmate is actually performing satisfactory work 
or actively participating in an education or vocational training 
program. Absences from an inmate's scheduled assignment for such reasons 
as call-outs, visits, sick call, interviews, or making telephone calls 
shall be deducted from the monthly number of hours worked and will 
accordingly reduce the amount of pay received by the inmate. Any 
exception to such reduction in pay must be approved by the Assistant 
Director, Correctional Programs Division, Central Office.
    (e) Work evaluation. (1) At the end of each month the work detail/
program supervisor shall compute the hours worked by the inmate and the 
pay to be awarded for that month.
    (2) An inmate shall receive performance pay only for those hours 
during which the inmate is actively participating in a work assignment 
or an education/vocational program.
    (3) The work detail/program supervisor shall rate the inmate's 
performance in each of several categories on a monthly basis when the 
inmate's work performance is average or below average or on a quarterly 
basis when the inmate's work performance is above average. For example, 
an inmate may be rated in such categories as quality of work, quantity 
of work, initiative, ability to learn, dependability, response to 
supervision and instruction, safety and care of equipment, ability to 
work with others, and overall job proficiency. Any exception to the work 
performance evaluation procedures cited in this paragraph requires 
approval of the Assistant Director, Correctional Programs Division, 
Central Office. The work detail/program supervisor shall review the 
evaluation with the inmate. The supervisor shall request that the inmate 
sign the evaluation form. If the inmate refuses to sign the form, the 
supervisor shall note this refusal on the evaluation and, if known, the 
reasons for refusal.
    (f) Bonus pay. When the supervisor of an inmate worker or program 
participant believes the inmate has made exceptional accomplishments or 
appreciably contributed to the work assignment, the supervisor may 
recommend that the inmate receive a bonus. For example, an inmate who 
works in excess of the scheduled work day can

[[Page 582]]

qualify for bonus pay. Written justification for the bonus request must 
be forwarded to the Department Head for approval.
    (g) Special bonus pay. An inmate may receive special bonus pay based 
on the inmate's exceptional work in a temporary job assignment, provided 
this assignment has been previously identified by the Warden, and 
approved by the Regional Director, as critical to the institution. When 
the supervisor of an inmate worker assigned to this temporary job 
assignment believes the inmate has performed exceptionally well, the 
supervisor may recommend that the inmate received a special bonus. 
Written justification for the special bonus request must be forwarded to 
the Department Head for approval.
    (h) An inmate's performance pay, once earned, becomes vested.
    (i) Each inmate in performance pay status shall be notified of 
monthly earnings.

[49 FR 38915, Oct. 1, 1984. Redesignated and amended at 56 FR 23478, 
23479, May 21, 1991; 61 FR 379, Jan. 4, 1996; 63 FR 67560, Dec. 7, 1998]



Sec. 545.27  Inmate vacations.

    (a) An inmate who has worked full-time for 12 consecutive months on 
an institution work assignment is eligible to take a five-day paid 
vacation at the inmate's prevailing hourly rate. A recommendation for an 
inmate to receive vacation credit is made by the inmate's work 
supervisor, through the Department Head, to the Unit Team, who shall 
approve the request if the inmate's work performance qualifies for 
vacation credit.
    (b) Staff shall schedule an inmate's vacation so it is compatable 
with shop production and administrative support requirements.
    (c) The Warden or designee may authorize an inmate to accumulate 
vacation credit when:
    (1) The inmate is transferred to another institution for the benefit 
of the government or because of the inmate's favorable adjustment 
(custody reduction); or
    (2) The inmate is placed in a new work assignment in the institution 
for the benefit of the government or institution, rather than solely at 
the inmate's request or because of the inmate's poor performance or 
adverse behavior.

[49 FR 38915, Oct. 1, 1984. Redesignated and amended at 56 FR 23478, 
23479, May 21, 1991]



Sec. 545.28  Achievement awards.

    (a) With prior approval of the Education Department, each inmate who 
completes the Literacy program, Vocational Training, or related trades 
classroom work that is part of a certified apprenticeship program may be 
granted an achievement award from performance pay funds.
    (b) With prior approval of the Psychology Services Department, each 
inmate who is making satisfactory progress or completes a residential 
drug treatment program may also be granted an achievement award from 
performance pay funds.

[61 FR 379, Jan. 4, 1996]



Sec. 545.29  Special awards.

    (a) Inmates who perform exceptional services not ordinarily a part 
of the inmate's regular assignment may be granted a special award 
regardless of the inmate's work or program status. Examples of actions 
which may result in the inmate being considered for a special award are 
the following:
    (1) An act of heroism.
    (2) Voluntary acceptance and satisfactory performance of an 
unusually hazardous assignment.
    (3) An act which protects the lives of employees or inmates, or the 
property of the United States. (This does not apply to informants.)
    (4) Suggestions which result in substantial improvements or cost-
savings in institutional programs or operations.
    (5) Other exceptionally meritorious or outstanding services 
consistent with the general character of the preceding cases.
    (b) The special award may be given in the form of a monetary payment 
in addition to any other award (e.g., extra good time) given.
    (c) The Warden of each institution is empowered to approve special 
awards not exceeding $150. Awards in excess of

[[Page 583]]

this amount may not be made unless approved by the Regional Director.

[49 FR 38915, Oct. 1, 1984. Redesignated and amended at 56 FR 23478, 
23479, May 21, 1991]



Sec. 545.30  Funds due deceased inmates.

    Funds due a deceased inmate for work performed and not yet paid 
shall be made to a legal representative of the inmate's estate or in 
accordance with the laws of descent and distribution of the state of the 
inmate's domicile.

[49 FR 38915, Oct. 1, 1984. Redesignated and amended at 56 FR 23478, 
23479, May 21, 1991]



Sec. 545.31  Training.

    The Warden shall ensure that staff receive training on their roles 
in, and on the operation of, the work and performance pay program. The 
Warden shall also ensure that the inmate population is informed of the 
work and performance pay program, and of the hourly rates paid to inmate 
workers.

[49 FR 38915, Oct. 1, 1984. Redesignated at 56 FR 23479, May 21, 1991]

Subpart D [Reserved]



PART 547--FOOD SERVICE--Table of Contents




    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984, as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

Subparts A-B [Reserved]



                    Subpart C--Special Food or Meals

    Authority: 5 U.S.C. 301; 18 U.S.C. 4001, 4042, 4081, 5015, 5039; 28 
U.S.C. 509, 510; 28 CFR 0.95-0.99.



Sec. 547.20  Policy.

    The Bureau of Prisons is responsible for procuring and preparing any 
food or food ingredients to be served to the institution's inmate 
population. Except as allowed for in paragraphs (a) through (c) of this 
section, the Bureau requires that special food or meals prepared for 
and/or served to any group(s) of inmates also be served to the 
institution's entire inmate population. Special food or meals, as 
identified in paragraphs (a) through (c) of this section, may be 
prepared and/or served to a specific group of inmates rather than to the 
entire inmate population of the institution.
    (a) Food items sold in the institution's commissary.
    (b) Religious dietary practices as authorized in accordance with 28 
CFR 548.20.
    (c) Medical diet foods.

[61 FR 16374, Apr. 12, 1996]



PART 548--RELIGIOUS PROGRAMS--Table of Contents




Subpart A [Reserved]

    Subpart B--Religious Beliefs and Practices of Committed Offenders

Sec.
548.10  Purpose and scope.
548.11  Definition.
548.12  Chaplains.
548.13  Schedules and facilities.
548.14  Community involvement (volunteers, contractors).
548.15  Equity.
548.16  Inmate religious property.
548.17  Work assignments.
548.18  Observance of religious holy days.
548.19  Pastoral visits.
548.20  Dietary practices.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510; 42 U.S.C. 1996; 28 
CFR 0.95-0.99.

    Source: 44 FR 38251, June 29, 1979, unless otherwise noted.

Subpart A [Reserved]



    Subpart B--Religious Beliefs and Practices of Committed Offenders

    Authority: 5 U.S.C. 301; 18 U.S.C. 4001, 4042, 4081, 4082, 5006-
5024, 5039; 28 U.S.C. 509, 510; 42 U.S.C. 1996; 28 CFR 0.95-0.99.

    Source: 60 FR 46486, Sept. 6, 1995, unless otherwise noted.



Sec. 548.10  Purpose and scope.

    (a) The Bureau of Prisons provides inmates of all faith groups with 
reasonable and equitable opportunities to

[[Page 584]]

pursue religious beliefs and practices, within the constraints of 
budgetary limitations and consistent with the security and orderly 
running of the institution and the Bureau of Prisons.
    (b) When considered necessary for the security or good order of the 
institution, the Warden may limit attendance at or discontinue a 
religious activity. Opportunities for religious activities are open to 
the entire inmate population, without regard to race, color, 
nationality, or ordinarily, creed. The Warden, after consulting with the 
institution chaplain, may limit participation in a particular religious 
activity or practice to the members of that religious group. Ordinarily, 
when the nature of the activity or practice (e.g., religious fasts, 
wearing of headwear, work proscription, ceremonial meals) indicates a 
need for such a limitation, only those inmates whose files reflect the 
pertinent religious preference will be included.
    (c) The Bureau of Prisons does not require an inmate to profess a 
religious belief. An inmate may designate any or no religious preference 
at his/her initial team screening. By notifying the chaplain in writing, 
an inmate may request to change this designation at any time, and the 
change will be effected in a timely fashion.



Sec. 548.11  Definition.

    For purposes of this subpart, the term ``religious activity'' 
includes religious diets, services, ceremonies, and meetings.



Sec. 548.12  Chaplains.

    Institution chaplains are responsible for managing religious 
activities within the institution. Institution chaplains are available 
upon request to provide pastoral care and counseling to inmates through 
group programs and individual services. Pastoral care and counseling 
from representatives in the community are available in accordance with 
the provisions of Secs. 548.14 and 548.19. The chaplain may ask the 
requesting inmate to provide information regarding specific requested 
religious activities for the purpose of making an informed decision 
regarding the request.

[62 FR 44836, Aug. 22, 1997]



Sec. 548.13  Schedules and facilities.

    (a) Under the general supervision of the Warden, chaplains shall 
schedule and direct the institution's religious activities.
    (b) The Warden may relieve an inmate from an institution program or 
assignment if a religious activity is also scheduled at that time.
    (c) Institutions shall have space designated for the conduct of 
religious activities.



Sec. 548.14  Community involvement (volunteers, contractors).

    (a) The institution's chaplain may contract with representatives of 
faith groups in the community to provide specific religious services 
which the chaplain cannot personally deliver due to, ordinarily, 
religious prescriptions or ecclesiastical constraints to which the 
chaplain adheres.
    (b) The institution's chaplain may secure the services of volunteers 
to assist inmates in observing their religious beliefs.
    (c) The Warden or the Warden's designee (ordinarily the chaplain) 
may require a recognized representative of the faith group to verify a 
volunteer's or contractor's religious credentials prior to approving his 
or her entry into the institution.



Sec. 548.15  Equity.

    No one may disparage the religious beliefs of an inmate, nor coerce 
or harass an inmate to change religious affiliation. Attendance at all 
religious activities is voluntary and, unless otherwise specifically 
determined by the Warden, open to all.



Sec. 548.16  Inmate religious property.

    (a) Inmate religious property includes but is not limited to 
rosaries and prayer beads, oils, prayer rugs, phylacteries, medicine 
pouches, and religious medallions. Such items, which become part of an 
inmate's personal property, are subject to normal considerations of 
safety and security. If necessary, their religious significance shall be 
verified by the chaplain prior to the Warden's approval.
    (b) An inmate ordinarily shall be allowed to wear or use personal 
religious

[[Page 585]]

items during religious services, ceremonies, and meetings in the chapel, 
unless the Warden determines that the wearing or use of such items would 
threaten institution security, safety, or good order. Upon request of 
the inmate, the Warden may allow the wearing or use of certain religious 
items throughout the institution, consistent with considerations of 
security, safety, or good order. The Warden may request the chaplain to 
obtain direction from representatives of the inmate's faith group or 
other appropriate sources concerning the religious significance of the 
items.
    (c) An inmate who wishes to have religious books, magazines or 
periodicals must comply with the general rules of the institution 
regarding ordering, purchasing, retaining, and accumulating personal 
property. Religious literature is permitted in accordance with the 
procedures governing incoming publications. Distribution to inmates of 
religious literature purchased by or donated to the Bureau of Prisons is 
contingent upon the chaplain's granting his or her approval.

[60 FR 46486, Sept. 6, 1995, as amended at 62 FR 44836, Aug. 22, 1997]



Sec. 548.17  Work assignments.

    When the religious tenets of an inmate's faith are violated or 
jeopardized by a particular work assignment, a different work assignment 
ordinarily shall be made after it is requested in writing by the inmate, 
and the specific religious tenets have been verified by the chaplain. 
Maintaining security, safety, and good order in the institution are 
grounds for denial of such request for a different work assignment.



Sec. 548.18  Observance of religious holy days.

    Consistent with maintaining security, safety, and good order in the 
institution, the Warden shall endeavor to facilitate the observance of 
important religious holy days which involve special fasts, dietary 
regulations, worship, or work proscription. The inmate must submit a 
written request to the chaplain for time off from work to observe a 
religious holy day. The Warden may request the chaplain to consult with 
community representatives of the inmate's faith group and/or other 
appropriate sources to verify the religious significance of the 
requested observance. The chaplain will work with requesting inmates to 
accommodate a proper observance of the holy day. The Warden will 
ordinarily allow an inmate to take earned vacation days, or to make up 
for missed work, or to change work assignments in order to facilitate 
the observance of the religious holy day.



Sec. 548.19  Pastoral visits.

    If requested by an inmate, the chaplain shall facilitate 
arrangements for pastoral visits by a clergyperson or representative of 
the inmate's faith.
    (a) The chaplain may request an NCIC check and documentation of such 
clergyperson's or faith group representative's credentials.
    (b) Pastoral visits may not be counted as social visits. They will 
ordinarily take place in the visiting room during regular visiting 
hours.



Sec. 548.20  Dietary practices.

    (a) The Bureau provides inmates requesting a religious diet 
reasonable and equitable opportunity to observe their religious dietary 
practice within the constraints of budget limitations and the security 
and orderly running of the institution and the Bureau through a common 
fare menu. The inmate will provide a written statement articulating the 
religious motivation for participation in the common fare program.
    (b) An inmate who has been approved for a common fare menu must 
notify the chaplain in writing if the inmate wishes to withdraw from the 
religious diet. Approval for an inmate's religious diet may be withdrawn 
by the chaplain if the inmate is documented as being in violation of the 
terms of the religious diet program to which the inmate has agreed in 
writing. In order to preserve the integrity and orderly operation of the 
religious diet program and to prevent fraud, inmates who withdraw (or 
are removed) may not be immediately reestablished back into the program. 
The process of reapproving a religious diet for an inmate who 
voluntarily withdraws or who is removed ordinarily may extend up to 
thirty days.

[[Page 586]]

Repeated withdrawals (voluntary or otherwise), however, may result in 
inmates being subjected to a waiting period of up to one year.
    (c) The chaplain may arrange for inmate religious groups to have one 
appropriate ceremonial or commemorative meal each year for their members 
as identified by the religious preference reflected in the inmate's 
file. An inmate may attend one religious ceremonial meal in a calendar 
year.

[60 FR 46486, Sept. 6, 1995, as amended at 62 FR 44836, Aug. 22, 1997]



PART 549--MEDICAL SERVICES--Table of Contents




                     Subpart A--Infectious Diseases

Sec.
549.10  Purpose and scope.
549.11  Program responsibility.
549.12  Reporting.
549.13  Medical testing.
549.14  Training.
549.15  Medical isolation and quarantining.
549.16  Duty and housing restrictions.
549.17  Confidentiality of information.
549.18  Human immunodeficiency virus (HIV) and hepatitis B virus (HBV).

Subpart B [Reserved]

   Subpart C--Administrative Safeguards for Psychiatric Treatment and 
                               Medication

549.40  Use of psychotropic medications.
549.41  Voluntary admission and psychotropic medication.
549.42  Involuntary admission.
549.43  Involuntary psychiatric treatment and medication.

                       Subpart D--Plastic Surgery

549.50  Purpose and scope.
549.51  Approval procedures.
549.52  Informed consent.

                    Subpart E--Hunger Strikes, Inmate

549.60  Purpose and scope.
549.61  Definition.
549.62  Initial referral.
549.63  Initial medical evaluation and management.
549.64  Food/liquid intake/output.
549.65  Refusal to accept treatment.
549.66  Release from treatment.

Subpart F [Reserved]

                Subpart G--Authority To Conduct Autopsies

549.80  Authority to conduct autopsies.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4005, 
4042, 4045, 4081, 4082, (Repealed in part as to offenses committed on or 
after November 1, 1987), 4241-4247, 5006-5024 (Repealed October 12, 
1984, as to offenses committed after that date), 5039; 28 U.S.C. 509, 
510; 28 CFR 0.95-0.99.



                     Subpart A--Infectious Diseases

    Source: 60 FR 52279, Oct. 5, 1995, unless otherwise noted.



Sec. 549.10  Purpose and scope.

    This policy is designed to provide instruction and guidance in the 
management of infectious diseases in the confined environment of a 
correctional setting.



Sec. 549.11  Program responsibility.

    (a) The Health Services Administrator (HSA) and Clinical Director 
(CD) of each institution shall be responsible for the development and 
implementation of this program.
    (b) Each HSA shall designate a member of the clinical health care 
staff, for example, a physician, dentist, physician assistant, nurse 
practitioner, or nurse, as the Coordinator of Infectious Diseases (CID).



Sec. 549.12  Reporting.

    The HSA shall ensure that each institution's respective state health 
department is informed of all cases of reportable infectious diseases. 
See Sec. 549.17 for reporting requirements of chronic infectious 
diseases and for Freedom of Information Act requests.



Sec. 549.13  Medical testing.

    (a) Bloodborne pathogens. Following an incident in which a staff 
member or an inmate may have been exposed to bloodborne pathogens, 
written, informed consent shall be obtained prior to acquiring or 
processing the source individual's blood or other biological specimen 
for the purpose of determining an actual exposure to a bloodborne 
pathogen. In the context of exposure incidents, no inmate shall be 
tested forcibly or involuntarily, unless

[[Page 587]]

such testing is ordered by a court with proper jurisdiction. Inmates may 
be subjected to disciplinary action for assaultive behavior related to 
an exposure incident.
    (b) HIV testing. HIV testing programs are mandatory and include a 
yearly random sample, yearly new commitment sample, new commitment re-
test sample, pre-release testing, and clinically indicated testing. 
Inmates must participate in all mandatory testing programs. Staff shall 
initiate an incident report for failure to follow an order for any 
inmate refusing one of the mandatory HIV testing programs.
    (c) Diagnostics. (1) An inmate who refuses clinically indicated 
diagnostic procedures and evaluations for infectious and communicable 
diseases shall be subject to an incident report for failure to follow an 
order; involuntary testing subsequently may be performed in accordance 
with paragraph (c)(3) of this section.
    (2) Any inmate who refuses clinically indicated diagnostic 
procedures and evaluations for infectious and communicable diseases 
shall be subject to isolation or quarantine from the general population 
until such time as he/she is assessed to be non-communicable or the 
attending physician determines the inmate poses no health threat if 
returned to the general population.
    (3) If isolation is not practicable, an inmate who refuses to comply 
with or adhere to the diagnostic process or evaluation shall be 
involuntarily evaluated or tested.



Sec. 549.14  Training.

    The HSA shall ensure that a qualified health care professional 
provides training, incorporating a question-and-answer session, about 
infectious diseases to all newly committed inmates, during Admission and 
Orientation (A&O). Additional training shall be provided at least 
yearly.



Sec. 549.15  Medical isolation and quarantining.

    (a) The CD, in consultation with the HSA, shall ensure that inmates 
with infectious diseases which are transmitted through casual contact 
(e.g., tuberculosis, chicken pox, measles) are isolated from the general 
inmate population until such time as they are assessed or evaluated by a 
health care provider.
    (b) Inmates shall remain in medical isolation unless their 
activities, housing, and/or duty assignments can be limited or 
environmental/engineering controls or personal protective equipment is 
available to eliminate the risk of transmitting the disease.



Sec. 549.16  Duty and housing restrictions.

    (a) The CD shall assess any inmate with an infectious disease for 
appropriateness for duties and housing. Inmates demonstrating infectious 
diseases, which are transmitted through casual contact, shall be 
prohibited from employment in any area, until fully evaluated by a 
health care provider.
    (b) Inmates may be limited in duty and housing assignments only if 
their disease could be transmitted despite the use of environmental/
engineering controls or personal protective equipment, or when 
precautionary measures cannot be implemented or are not available to 
prevent the transmission of the specific disease. The Warden, in 
consultation with the CD, may exclude inmates, on a case-by-case basis, 
from work assignments based upon the classification of the institution 
and the safety and good order of the institution.
    (c) With the exception of the Bureau of Prisons rule set forth in 
subpart E of 28 CFR part 541, there shall be no special housing 
established for HIV-positive inmates.



Sec. 549.17  Confidentiality of information.

    (a) Medical information relevant to chronic infectious diseases 
shall be limited to members of the institutional medical staff, 
institutional psychologist, and the Warden and case manager, as needed, 
to address issues regarding pre- and post-release management. Prior to 
an inmate's release, medical information may be shared with the United 
States Probation Officer in the respective area of intended release for 
the inmate and, if applicable, with the Community Corrections Manager 
and the Director of the Community Correctional Center (CCC) for purposes 
of post-release management and access to

[[Page 588]]

care. Any other release of information shall be in accordance with the 
Privacy Act of 1974.
    (b) All parties, with whom confidential medical information 
regarding another individual is communicated, shall be advised not to 
share this information, by any means, with any other person. Medical 
information may be communicated among medical staff directly concerned 
with a patient's case in the course of their professional duties.



Sec. 549.18  Human immunodeficiency virus (HIV) and hepatitis B virus (HBV).

    (a) During routine intake screening, all new commitments shall be 
interviewed to identify those who may be HIV- or HBV-infected. Medical 
personnel may request any inmates identified in this manner to submit to 
an HIV or HBV test. Failure to comply shall result in an incident report 
for failure to follow an order.
    (b) A seropositive test result alone may not constitute grounds for 
disciplinary action. Disciplinary action may be considered when coupled 
with a secondary action that could lead to transmission of the virus, 
e.g. sharing razor blades.
    (c) A sample of all newly incarcerated inmates committed to the 
Bureau of Prisons ordinarily shall be tested annually.
    (d) Additionally, a random sample for HIV of all inmates in the 
Bureau of Prisons shall be conducted once yearly. Inmates tested in this 
random sample are not scheduled for follow-up routine retesting.
    (e) After consultation with a Bureau of Prisons' health care 
provider, an inmate may request an HIV/HBV antibody test. Ordinarily, an 
inmate will not be allowed to test, as a volunteer, more frequently than 
once yearly.
    (f) A physician may order an HIV/HBV antibody test if an inmate has 
chronic illnesses or symptoms suggestive of an HIV or HBV infection. 
Inmates who are pregnant, inmates receiving live vaccines or inmates 
being admitted to community hospitals, if required by the hospital, 
shall be tested. Inmates demonstrating sexual behavior which is 
promiscuous, assaultive, or predatory shall also be tested.
    (g)(1) An inmate being considered for full-term release, parole, 
good conduct time release, furlough, or placement in a community-based 
program such as a Community Corrections Center (CCC) shall be tested for 
the HIV antibody. An inmate who has been tested within one year of this 
consideration ordinarily will not be required to submit to a repeat test 
prior to the lapse of a one-year period. An inmate who refuses to be 
tested shall be subject to an incident report for refusing an order and 
will ordinarily be denied participation in a community activity.
    (2) A seropositive test result is not sole grounds for denying 
participation in a community activity. Test results ordinarily must be 
available prior to releasing an inmate for a furlough or placement in a 
community-based program. When an inmate requests an emergency furlough, 
and current (within one year) HIV and HBV antibody test results are not 
available, the Warden may consider authorizing an escorted trip for the 
inmate, at government expense.
    (h)(1) No later than thirty days prior to release on parole or 
placement in a community-based program, the Warden shall send a letter 
to the Chief United States Probation Officer (USPO) in the district 
where the inmate is being released, advising the USPO of the inmate's 
positive HIV status. A copy of this letter shall also be forwarded to 
the Community Corrections Manager. The Community Corrections Manager, in 
turn, shall notify the Director of the CCC (if applicable). In all 
instances of notification, precautions shall be taken to ensure that 
only authorized persons with a legitimate need to know are allowed 
access to the information.
    (2) Prior to an HIV-positive inmate's participation in a community 
activity (including furloughs), notification of the inmate's infectious 
status shall be made:
    (i) By the Warden to the USPO in the district to be visited, and
    (ii) By the Health Service Administrator to the state health 
department in the state to be visited, when that state requires such 
notification.

[[Page 589]]


Notification is not necessary for an escorted trip.
    (3) Prior to release on parole, completion of sentence, placement in 
a community-based program, or participation in an unescorted community 
activity, an HIV-positive inmate shall be strongly encouraged to notify 
his/her spouse (legal or common-law) or any identified significant 
others with whom it could be assumed the inmate might have contact 
resulting in possible transmission of the virus.
    (4) When an inmate is confirmed positive for HIV or HBV, the HSA 
shall be responsible for notifying the state health departments in the 
state in which the institution is located and the state in which the 
inmate is expected to be released, when either state requires such 
notification. The HSA shall ensure medical staff perform the 
notification at the time of confirmed positive HIV or HBV antibody 
tests.
    (5) The HSA shall notify the Immigration and Naturalization Service 
(INS) of any inmate testing positive who is to be released to an INS 
detainer.
    (i) Inmates receiving the HIV or HBV antibody test shall receive 
pre- and post-test counseling, regardless of the test results.
    (j) Health service staff shall clinically evaluate and review each 
HIV-positive inmate at least once quarterly.
    (k) Pharmaceuticals approved by the Food and Drug Administration for 
use in the treatment of AIDS, HIV-infected, and HBV-infected inmates 
shall be offered, when indicated, at the institution.

Subpart B [Reserved]



   Subpart C--Administrative Safeguards for Psychiatric Treatment and 
                               Medication

    Source: 57 FR 53820, Nov. 12, 1992, unless otherwise noted.



Sec. 549.40  Use of psychotropic medications.

    Psychotropic medication is to be used only for a diagnosable 
psychiatric disorder or symptomatic behavior for which such medication 
is accepted treatment.



Sec. 549.41  Voluntary admission and psychotropic medication.

    (a) A sentenced inmate may be voluntarily admitted for psychiatric 
treatment and medication when, in the professional judgment of qualified 
health personnel, such inmate would benefit from such treatment and 
demonstrates the ability to give informed consent to such admission. The 
assessment of the inmate's ability to give informed consent will be 
documented in the individual's medical record by qualified health 
personnel.
    (b) If an inmate is to receive psychotropic medications voluntarily, 
his or her informed consent must be obtained, and his or her ability to 
give such consent must be documented in the medical record by qualified 
health personnel.

[57 FR 53820, Nov. 12, 1992, as amended at 60 FR 49444, Sept. 25, 1995]



Sec. 549.42  Involuntary admission.

    A court determination is necessary for involuntary hospitalization 
for psychiatric treatment. A sentenced inmate, not currently committed 
for psychiatric treatment, who is not able or willing to voluntarily 
consent either to psychiatric admission or to medication, is subject to 
judicial involuntary commitment procedures. Even after an inmate is 
involuntarily committed, staff shall follow the administrative due 
process procedures specified in Sec. 549.43 of this subpart.



Sec. 549.43  Involuntary psychiatric treatment and medication.

    Title 18 U.S.C. 4241-4247 and federal court decisions require that 
certain procedures be followed prior to the involuntary administration 
of psychiatric treatment and medication to persons in the custody of the 
Attorney General. Court commitment for hospitalization provides the 
judicial due process hearing, and no further judicial authorization is 
needed for the admission decision. However, in order to administer 
treatment or psychotropic medication on an involuntary basis, further 
administrative due process procedures, as specified in this section,

[[Page 590]]

must be provided to the inmate. Except as provided for in paragraph (b) 
of this section, the procedures outlined herein must be followed after a 
person is committed for hospitalization and prior to administering 
involuntary treatment, including medication.
    (a) Procedures. When an inmate will not or cannot provide voluntary 
written informed consent for psychotropic medication, the inmate will be 
scheduled for an administrative hearing. Absent an emergency situation, 
the inmate will not be medicated prior to the hearing. In regard to the 
hearing, the inmate will be given the following procedural safeguards:
    (1) Staff shall provide 24-hour advance written notice of the date, 
time, place, and purpose of the hearing, including the reasons for the 
medication proposal.
    (2) Staff shall inform the inmate of the right to appear at the 
hearing, to present evidence, to have a staff representative, to request 
witnesses, and to request that witnesses be questioned by the staff 
representative or by the person conducting the hearing. If the inmate 
does not request a staff representative, or requests a staff 
representative with insufficient experience or education, the 
institution mental health division administrator shall appoint a staff 
representative. Witnesses should be called if they have information 
relevant to the inmate's mental condition and/or need for medication, 
and if they are reasonably available. Witnesses who only have repetitive 
information need not be called.
    (3) The hearing is to be conducted by a psychiatrist who is not 
currently involved in the diagnosis or treatment of the inmate.
    (4) The treating/evaluating psychiatrist/clinician must be present 
at the hearing and must present clinical data and background information 
relative to the need for medication. Members of the treating/evaluating 
team may also attend the hearing.
    (5) The psychiatrist conducting the hearing shall determine whether 
treatment or psychotropic medication is necessary in order to attempt to 
make the inmate competent for trial or is necessary because the inmate 
is dangerous to self or others, is gravely disabled, or is unable to 
function in the open population of a mental health referral center or a 
regular prison. The psychiatrist shall prepare a written report 
regarding the decision.
    (6) The inmate shall be given a copy of the report and shall be 
advised that he or she may submit an appeal to the institution mental 
health division administrator regarding the decision within 24 hours of 
the decision and that the administrator shall review the decision within 
24 hours of the inmate's appeal. The administrator shall ensure that the 
inmate received all necessary procedural protections and that the 
justification for involuntary treatment or medication is appropriate. 
Upon request of the inmate, the staff representative shall assist the 
inmate in preparing and submitting the appeal.
    (7) If the inmate appeals, absent a psychiatric emergency, 
medication will not be administered before the administrator's decision. 
The inmate's appeal, which may be handwritten, must be filed within 24 
hours of the inmate's receipt of the decision.
    (8) A psychiatrist, other than the attending psychiatrist, shall 
provide follow-up monitoring of the patient's treatment or medication at 
least once every 30 days after the hearing. The follow-up shall be 
documented in the medical record.
    (b) Emergencies. For purpose of this subpart, a psychiatric 
emergency is defined as one in which a person is suffering from a mental 
illness which creates an immediate threat of bodily harm to self or 
others, serious destruction of property, or extreme deterioration of 
functioning secondary to psychiatric illness. During a psychiatric 
emergency, psychotropic medication may be administered when the 
medication constitutes an appropriate treatment for the mental illness 
and less restrictive alternatives (e.g., seclusion or physical 
restraint) are not available or indicated, or would not be effective.
    (c) Exceptions. Title 18 United States Code, sections 4241 through 
4247 do not apply to military prisoners, unsentenced Immigration and 
Naturalization Service (INS) detainees, unsentenced prisoners in Bureau 
custody as a result of a court order (e.g. a

[[Page 591]]

civil contemnor), state or territorial prisoners, and District of 
Columbia Code offenders. For those persons not covered by sections 4241-
4247, the decision to involuntarily admit the person to the hospital 
must be made at an administrative hearing meeting the requirements of 
Vitek v. Jones. The decision to provide involuntary treatment, including 
medication, shall nonetheless be made at an administrative hearing in 
compliance with Sec. 549.43.

[57 FR 53820, Nov. 12, 1992, as amended at 60 FR 49444, Sept. 25, 1995]



                       Subpart D--Plastic Surgery

    Source: 61 FR 13322, Mar. 26, 1996, unless otherwise noted.



Sec. 549.50  Purpose and scope.

    The Bureau of Prisons does not ordinarily perform plastic surgery on 
inmates to correct preexisting disfigurements (including tattoos) on any 
part of the body. In circumstances where plastic surgery is a component 
of a presently medically necessary standard of treatment (for example, 
part of the treatment for facial lacerations or for mastectomies due to 
cancer) or it is necessary for the good order and security of the 
institution, the necessary surgery may be performed.



Sec. 549.51  Approval procedures.

    The Clinical Director shall consider individually any request from 
an inmate or a BOP medical consultant.
    (a) In circumstances where plastic surgery is a component of the 
presently medically necessary standard of treatment, the Clinical 
Director shall forward the surgery request to the Office of Medical 
Designations and Transportation for approval.
    (b) If the Clinical Director recommends plastic surgery for the good 
order and security of the institution, the request for plastic surgery 
authorization will be forwarded to the Warden for initial approval. The 
Warden will forward the request through the Regional Director to the 
Medical Director. The Medical Director shall have the final authority to 
approve or deny this type of plastic surgery request.
    (c) If the Clinical Director is unable to determine whether the 
plastic surgery qualifies as a component of presently medically 
necessary standard of treatment, the Clinical Director may forward the 
request to the Medical Director for a final determination in accordance 
with the provisions of paragraph (b) of this section.



Sec. 549.52  Informed consent.

    Approved plastic surgery procedures may not be performed without the 
informed consent of the inmate involved.



                    Subpart E--Hunger Strikes, Inmate

    Source: 45 FR 23365, Apr. 4, 1980, unless otherwise noted.



Sec. 549.60  Purpose and scope.

    The Bureau of Prisons provides guidelines for the medical and 
administrative management of inmates who engage in hunger strikes. It is 
the responsibility of the Bureau of Prisons to monitor the health and 
welfare of individual inmates, and to ensure that procedures are pursued 
to preserve life.

[45 FR 23365, Apr. 4, 1980, as amended at 59 FR 31883, June 20, 1994]



Sec. 549.61  Definition.

    As defined in this rule, an inmate is on a hunger strike:
    (a) When he or she communicates that fact to staff and is observed 
by staff to be refraining from eating for a period of time, ordinarily 
in excess of 72 hours; or
    (b) When staff observe the inmate to be refraining from eating for a 
period in excess of 72 hours. When staff consider it prudent to do so, a 
referral for medical evaluation may be made without waiting 72 hours.



Sec. 549.62  Initial referral.

    (a) Staff shall refer an inmate who is observed to be on a hunger 
strike to medical or mental health staff for evaluation and, when 
appropriate, for treatment.
    (b) Medical staff ordinarily shall place the inmate in a medically 
appropriate locked room for close monitoring.

[59 FR 31883, June 20, 1994]

[[Page 592]]



Sec. 549.63  Initial medical evaluation and management.

    (a) Medical staff shall ordinarily perform the following procedures 
upon initial referral of an inmate on a hunger strike:
    (1) Measure and record height and weight;
    (2) Take and record vital signs;
    (3) Urinalysis;
    (4) Psychological and/or psychiatric evaluation;
    (5) General medical evaluation;
    (6) Radiographs as clinically indicated;
    (7) Laboratory studies as clinically indicated.
    (b) Medical staff shall take and record weight and vital signs at 
least once every 24 hours while the inmate is on a hunger strike. Other 
procedures identified in paragraph (a) of this section shall be repeated 
as medically indicated.
    (c) When valid medical reasons exist, the physician may modify, 
discontinue, or expand any of the medical procedures described in 
paragraphs (a) and (b) of this section.
    (d) When medical staff consider it medically mandatory, an inmate on 
a hunger strike will be transferred to a Medical Referral Center or to 
another Bureau institution considered medically appropriate, or to a 
community hospital.

[45 FR 23365, Apr. 4, 1980, as amended at 59 FR 31883, June 20, 1994]



Sec. 549.64  Food/liquid intake/output.

    (a) Staff shall prepare and deliver to the inmate's room three meals 
per day or as otherwise authorized by the physician.
    (b) Staff shall provide the inmate an adequate supply of drinking 
water. Other beverages shall also be offered.
    (c) Staff shall remove any commissary food items and private food 
supplies of the inmate while the inmate is on a hunger strike. An inmate 
may not make commissary food purchases while under hunger strike 
management.

[45 FR 23365, Apr. 4, 1980, as amended at 59 FR 31883, June 20, 1994]



Sec. 549.65  Refusal to accept treatment.

    (a) When, as a result of inadequate intake or abnormal output, a 
physician determines that the inmate's life or health will be threatened 
if treatment is not initiated immediately, the physician shall give 
consideration to forced medical treatment of the inmate.
    (b) Prior to medical treatment being administered against the 
inmate's will, staff shall make reasonable efforts to convince the 
inmate to voluntarily accept treatment. Medical risks faced by the 
inmate if treatment is not accepted shall also be explained to the 
inmate. Staff shall document their treatment efforts in the medical 
record of the inmate.
    (c) When, after reasonable efforts, or in an emergency preventing 
such efforts, a medical necessity for immediate treatment of a life or 
health threatening situation exists, the physician may order that 
treatment be administered without the consent of the inmate. Staff shall 
document their treatment efforts in the medical record of the inmate.
    (d) Staff shall continue clinical and laboratory monitoring as 
necessary until the inmate's life or permanent health is no longer 
threatened.
    (e) Staff shall continue medical, psychiatric and/or psychological 
follow-up as long as necessary.

[45 FR 23365, Apr. 4, 1980, as amended at 59 FR 31883, June 20, 1994]



Sec. 549.66  Release from treatment.

    Only the physician may order that an inmate be released from hunger 
strike evaluation and treatment. This order shall be documented in the 
medical record of the inmate.

[59 FR 31883, June 20, 1994]

Subpart F [Reserved]



                Subpart G--Authority To Conduct Autopsies



Sec. 549.80  Authority to conduct autopsies.

    (a) The Warden may order an autopsy and related scientific or 
medical tests

[[Page 593]]

to be performed on the body of a deceased inmate of the facility in the 
event of homicide, suicide, fatal illness or accident, or unexplained 
death. The autopsy or tests may be ordered in one of these situations 
only when the Warden determines that the autopsy or test is necessary to 
detect a crime, maintain discipline, protect the health or safety of 
other inmates, remedy official misconduct, or defend the United States 
or its employees from civil liability arising from the administration of 
the facility.
    (1) The authority of the Warden under this section may not be 
delegated below the level of Acting Warden.
    (2) Where the Warden has the authority to order an autopsy under 
this provision, no non-Bureau of Prisons authorization (e.g., from 
either the coroner or from the inmate's next-of-kin) is required. A 
decision on whether to order an autopsy is ordinarily made after 
consultation with the attending physician, and a determination by the 
Warden that the autopsy is in accordance with the statutory provision. 
Once it is determined that an autopsy is appropriate, the Warden shall 
prepare a written statement authorizing this procedure. The written 
statement is to include the basis for approval.
    (b) In any situation other than as described in paragraph (a) of 
this section, the Warden may order an autopsy or post-mortem operation, 
including removal of tissue for transplanting, to be performed on the 
body of a deceased inmate of the facility with the written consent of a 
person (e.g., coroner, or next-of-kin, or the decedent's consent in the 
case of tissue removed for transplanting) authorized to permit the 
autopsy or post-mortem operation under the law of the State in which the 
facility is located.
    (1) The authority of the Warden under this section may not be 
delegated below the level of Acting Warden.
    (2) When the conducting of an autopsy requires permission of the 
family or next-of-kin, the following message is to be included in the 
telegram notifying the family or next-of-kin of the death: ``Permission 
is requested to perform a complete autopsy''. Also inform the family or 
next-of-kin that they may telegraph the institution collect with their 
response. Where permission is not received from the person (e.g., 
coroner or next-of-kin) authorized to permit the autopsy or post-mortem 
operation, an autopsy or post-mortem operation may not be performed 
under the conditions of this paragraph (b).
    (c) In addition to the provisions of paragraphs (a) and (b) of this 
section, each institution also is expected to abide by the following 
procedures.
    (1) Staff shall ensure that the state laws regarding the reporting 
of deaths are followed.
    (2) Time is a critical factor in arranging for an autopsy, as this 
ordinarily must be performed within 48 hours. While a decision on an 
autopsy is pending, no action should be taken that will affect the 
validity of the autopsy results. Therefore, while the body may be 
released to a funeral home, this should be done only with the written 
understanding from the funeral home that no preparation for burial, 
including embalming, should be performed until a final decision is made 
on the need for an autopsy.
    (3) Medical staff shall arrange for the approved autopsy to be 
performed.
    (4) To the extent consistent with the needs of the autopsy or of 
specific scientific or medical tests, provisions of state and local laws 
protecting religious beliefs with respect to such autopsies are to be 
observed.

[52 FR 48068, Dec. 17, 1987]



PART 550--DRUG PROGRAMS--Table of Contents




Subpart A [Reserved]

                       Subpart B--Alcohol Testing

Sec.
550.10  Purpose and scope.

Subpart C [Reserved]

                      Subpart D--Urine Surveillance

550.30  Purpose and scope.
550.31  Procedures.

    Subpart E--Drug Services (Urine Surveillance and Counseling for 
                   Sentenced Inmates in Contract CTCs)

550.40  Purpose and scope.

[[Page 594]]

550.41  Urine surveillance.
550.42  Procedures for urine surveillance.
550.43  Drug counseling.
550.44  Procedures for arranging drug counseling.

                Subpart F--Drug Abuse Treatment Programs

550.50  Purpose and scope.
550.51  Institutional organization/staff roles and responsibilities.
550.52  Admission and Orientation program.
550.53  Screening and referral.
550.54  Requirements for drug abuse education course.
550.55  Non-residential drug abuse treatment program.
550.56  Institution residential drug abuse treatment program.
550.57  Incentives for residential drug abuse treatment program 
          participation.
550.58  Consideration for early release.
550.59  Transitional drug treatment services.
550.60  Inmate appeals.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 4251-4255, 5006-5024 (repealed October 12, 1984 as to 
conduct occurring after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 
0.95-0.99.

Subpart A [Reserved]



                       Subpart B--Alcohol Testing



Sec. 550.10  Purpose and scope.

    The Bureau of Prisons maintains a surveillance program in order to 
deter and to detect the illegal introduction or use of alcohol in its 
institutions. In an effort to reduce the introduction or use of alcohol, 
the Warden shall establish procedures for monitoring and testing 
individual inmates or groups of inmates who are known or suspected to be 
users of alcohol, or who are considered high risks based on behavior 
observed or on information received by staff.
    (a) Staff may prepare a disciplinary report on an inmate who shows a 
positive substantiated test result for alcohol.
    (b) Staff may initiate disciplinary action against an inmate who 
refuses to submit to an alcohol test.

[45 FR 33940, May 20, 1980]

Subpart C [Reserved]



                      Subpart D--Urine Surveillance

    Source: 62 FR 45292, Aug. 26, 1997, unless otherwise noted.



Sec. 550.30  Purpose and scope.

    The Warden shall establish programs of urine testing for drug use, 
to monitor specific groups or individual inmates who are considered as 
high risk for drug use, such as those involved in community activities, 
those with a history of drug use, and those inmates specifically 
suspected of drug use. Testing shall be performed with frequency 
determined by the Warden on at least 50 percent of those inmates who are 
involved in community activities. In addition, staff shall randomly 
sample each institution's inmate population during each month to test 
for drug use.



Sec. 550.31  Procedures.

    (a) Staff of the same sex as the inmate tested shall directly 
supervise the giving of the urine sample. If an inmate is unwilling to 
provide a urine sample within two hours of a request for it, staff 
ordinarily shall file an incident report. No waiting period or extra 
time need be allowed for an inmate who directly and specifically refuses 
to provide a urine sample. To eliminate the possibility of diluted or 
adulterated samples, staff shall keep the inmate under direct visual 
supervision during this two-hour period, or until a complete sample is 
furnished. To assist the inmate in giving the sample, staff shall offer 
the inmate eight ounces of water at the beginning of the two-hour time 
period. An inmate is presumed to be unwilling if the inmate fails to 
provide a urine sample within the allotted time period. An inmate may 
rebut this presumption during the disciplinary process.
    (b) Institution staff shall determine whether a justifiable reason 
exists, (e.g., use of prescribed medication) for any positive urine test 
result. If the inmate's urine test shows a positive test result for the 
presence of drugs which cannot be justified, staff shall file an 
incident report.

[[Page 595]]



    Subpart E--Drug Services (Urine Surveillance and Counseling for 
                   Sentenced Inmates in Contract CTCs)

    Source: 48 FR 24624, June 1, 1983, unless otherwise noted.



Sec. 550.40  Purpose and scope.

    The Bureau of Prisons requires that an inmate who is serving a 
sentence in a contract community treatment center (CTC) participate in a 
program of urine testing for drug use. An inmate who is serving a 
sentence in a contract CTC, and who has drug aftercare as a condition of 
release also shall receive drug counseling during the inmate's stay at 
the contract CTC.



Sec. 550.41  Urine surveillance.

    A program of urine testing for drug use shall be established in 
contract CTCs.
    (a) Urine surveillance shall be conducted on all inmates serving 
their sentence in a contract CTC:
    (1) Who have drug aftercare as a condition of release;
    (2) Who have a known history of drug abuse; or
    (3) Who are suspected of using drugs.

Center staff shall collect a minimum of six samples per month from an 
inmate who meets one or more of the criteria listed in paragraphs (a) 
(1) through (3) of this section.
    (b) The Center Director shall establish a schedule for random 
collection for all other sentenced inmates not identified in paragraph 
(a) of this section.



Sec. 550.42  Procedures for urine surveillance.

    (a) Contractor authorized personnel of the same sex as the inmate 
must witness collection of the inmate's urine sample. Inmates may not be 
involved in the collection, recording, mailing, or processing of the 
test results.
    (b) If an inmate fails to provide a urine sample within two hours of 
a request for it, center staff may file a disciplinary report. To 
eliminate the possibility of diluted or adulterated samples, center 
staff shall keep the inmate under direct supervision during this two-
hour period.
    (c) Center staff shall have each positive urine test validated to 
substantiate the positive result. Center staff shall file a disciplinary 
report if the inmate's urine test shows a positive result for the 
presence of drugs which the inmate cannot satisfactorily justify to 
center staff.
    (d) The results of disciplinary hearings and a copy of positive 
urine testing results which the inmate cannot satisfactorily justify to 
center staff shall be sent to the appropriate Regional U.S. Parole 
Commission Office, the Community Programs Manager (CPM), and the U.S. 
Probation Office.



Sec. 550.43  Drug counseling.

    (a) Drug counseling shall be provided to sentenced inmates in 
contract community treatment centers who have drug aftercare as a 
condition of release.
    (b) Counseling shall include a minimum of a 30-minute session each 
week, provided by qualified staff.
    (c) Center staff shall document in the inmate's file the date and 
time of each counseling session. The counselor must prepare a monthly 
summary of each inmate's progress. This report shall be placed in the 
inmate's file.



Sec. 550.44  Procedures for arranging drug counseling.

    The contract center staff shall hold a program planning conference 
with a sentenced inmate who has drug aftercare as a condition of 
release. At this meeting, held within one week of the inmate's arrival 
at the center, plans are made for the inmate to receive drug counseling. 
The meeting is attended by center staff, the inmate, and the Chief U.S. 
Probation Officer or designee.



                Subpart F--Drug Abuse Treatment Programs

    Source: 59 FR 53343, Oct. 21, 1994, unless otherwise noted.



Sec. 550.50  Purpose and scope.

    The Bureau of Prisons provides, subject to the availability of 
appropriated

[[Page 596]]

funds, drug abuse treatment programs to inmates.

[60 FR 27693, May 25, 1995]



Sec. 550.51  Institutional organization/staff roles and responsibilities.

    (a) Drug abuse treatment coordinator. The Warden shall designate a 
drug abuse treatment coordinator for his/her institution.
    (b) Drug abuse treatment specialist. All institutions shall employ a 
drug abuse treatment specialist. The drug abuse treatment specialist is 
responsible for providing drug abuse education and non-residential drug 
abuse treatment services to the inmate population, under the supervision 
of the drug abuse treatment coordinator. In institutions with 
residential drug abuse treatment programs, additional drug abuse 
treatment specialist staff are employed to provide treatment services on 
the residential drug abuse treatment unit.



Sec. 550.52  Admission and Orientation program.

    Drug abuse treatment coordinators at all institutions shall ensure 
that inmates are informed during the Admission and Orientation program 
about local and Bureau-wide drug abuse programming and treatment 
opportunities.

[60 FR 27693, May 25, 1995]



Sec. 550.53  Screening and referral.

    A psychologist or drug abuse treatment specialist shall interview 
all new institution admissions for drug abuse problems. A record review 
will be performed by a case manager in the normal course of his/her 
duties. Based on these reviews and interviews, drug abuse treatment 
staff shall make an appropriate drug education/treatment referral.



Sec. 550.54  Requirements for drug abuse education course.

    (a)(1) Mandatory participation. An inmate is required to participate 
in the drug abuse education course if he/she has been sentenced or 
returned to custody as a violator after September 30, 1991 and it is 
determined by unit and/or drug abuse treatment staff through a 
combination of interview and file review that:
    (i) There is evidence in the Presentence Investigation that alcohol 
or other drug use contributed to the commission of the instant offense;
    (ii) Alcohol or other drug use was a reason for violation either of 
supervised release, including parole, or BOP community status (CCC 
placement) for which the inmate is now incarcerated; or
    (iii) The inmate was recommended for drug programming during 
incarceration by the sentencing judge.
    (2) Voluntary participation. Inmates who are not required by 
paragraph (a)(1) of this section to participate in the drug abuse 
education course may request to participate voluntarily in the drug 
abuse education course when participant space is available. Volunteers 
must have the approval of the drug abuse treatment coordinator. Priority 
consideration shall be given to those inmates whose participation has 
been recommended by unit or treatment staff.
    (b) Sanctions. An inmate who is required by paragraph (a)(1) of this 
section to participate in the drug abuse education course and who 
refuses participation, withdraws, is expelled, or otherwise fails to 
meet the attendance and examination requirements shall be held at the 
lowest pay grade (Grade 4) within the institution and shall be 
ineligible for community programs. Inmates may be permitted to receive 
work promotions during their participation or while on a ``waiting 
list'' for the drug abuse education course. The Warden may make 
exceptions to the provisions of this paragraph for good cause with 
reasons for such exceptions documented in writing.
    (c) Exemptions. An inmate may be exempted from the required drug 
abuse education course due to cognitive impairment or other learning 
disabilities only after evaluation and recommendation by a psychologist. 
An inmate may also be exempted from the drug abuse education course if 
that inmate does not have enough time remaining to serve to complete the 
drug abuse education course, or if that inmate volunteers for, enters 
and completes a residential drug abuse treatment program,

[[Page 597]]

or if he/she completes a structured drug abuse treatment program at one 
of the Bureau of Prisons' Intensive Confinement Centers (ICC).
    (d) Written consent. All inmates who enter the drug abuse education 
course (whether as mandatory or as voluntary participants) are required 
to sign an agreement to participate prior to admission to the course.
    (e) Completion. Completion of the drug abuse education course 
requires attendance and participation during course sessions and a 
passing grade on an examination given at the end of the course. Inmates 
required to participate in this course ordinarily are provided at least 
three chances to pass the final examination before privileges are lost 
or sanctions (see paragraph (b) of this section) are invoked. A 
certificate of achievement will be awarded to all who successfully 
complete the program. A copy of this certificate will be forwarded to 
the unit team for placement in the inmate's central file.

[59 FR 53343, Oct. 21, 1994, as amended at 60 FR 27694, May 25, 1995]



Sec. 550.55  Non-residential drug abuse treatment program.

    Non-residential drug abuse treatment is provided at all institutions 
and ordinarily consists of individual and/or group counseling and self-
help programming provided through the institution's Psychology Services 
department.
    (a) Eligibility. An inmate must meet all of the following criteria 
to be eligible for the non-residential drug abuse treatment program.
    (1) The inmate must have a verifiable documented drug abuse problem.
    (2) The inmate must have no serious mental impairment which would 
substantially interfere with or preclude full participation in the 
program.
    (3) The inmate must sign an agreement acknowledging his/her program 
responsibility.
    (b) Application/Referral/Placement. Participation in the non-
residential drug abuse treatment program is voluntary. An inmate may be 
referred for treatment by unit and/or drug treatment staff or may apply 
for these programs by submitting a request to a staff member 
(ordinarily, a member of the inmate's unit team or the drug abuse 
treatment coordinator). The decision on placement is made by the drug 
abuse treatment coordinator.
    (c) Withdrawal/expulsion. An inmate may withdraw voluntarily from 
the program. The drug abuse treatment coordinator may remove an inmate 
from the program based upon disruptive or negative behavior.

[59 FR 53343, Oct. 21, 1994. Redesignated and amended at 60 FR 27694, 
May 25, 1995]



Sec. 550.56  Institution residential drug abuse treatment program.

    Residential drug abuse treatment is available at selected Bureau of 
Prisons institutions. It is a course of individual and group activities 
provided by a team of drug abuse treatment specialists and the drug 
abuse treatment coordinator in a treatment unit set apart from the 
general prison population, lasting a minimum of 500 hours over a six to 
twelve-month period. Inmates enrolled in a residential drug abuse 
treatment program shall be required to complete subsequent transitional 
services programming in a community-based program and/or in a Bureau 
institution.
    (a) Eligibility. An inmate must meet all of the following criteria 
to be eligible for the residential drug abuse treatment program.
    (1) The inmate must have a verifiable documented drug abuse problem.
    (2) The inmate must have no serious mental impairment which would 
substantially interfere with or preclude full participation in the 
program.
    (3) The inmate must sign an agreement acknowledging his/her program 
responsibility.
    (4) Ordinarily, the inmate must be within thirty-six months of 
release.
    (5) The security level of the residential program institution must 
be appropriate for the inmate.
    (b) Application/Referral/Placement. Participation in the residential 
drug abuse treatment program is voluntary. An inmate may be referred for 
treatment by unit or drug treatment staff or apply for the program by 
submitting a request to a staff member (ordinarily, a member of the 
inmate's unit team or the drug abuse treatment coordinator).

[[Page 598]]

The decision on placement is made by the drug abuse treatment 
coordinator.
    (c) Completion. Completion of the residential drug abuse treatment 
program requires attendance and participation in scheduled individual 
and group activities and a passing grade on examinations covering each 
separate subject module of the program. An inmate who fails an 
examination on any subject module ordinarily shall be allowed to retest 
one time. A certificate of achievement will be awarded to all who 
successfully complete the program. A copy of this certificate will be 
forwarded to the unit team for placement in the inmate's central file.
    (d) Withdrawal/expulsion. (1) An inmate may withdraw voluntarily 
from the program.
    (2) The drug abuse treatment coordinator may remove an inmate from 
the program based upon disruptive behavior related to the program. 
Ordinarily, staff shall provide the inmate with at least one warning 
prior to removal. An inmate may not ordinarily be removed immediately 
without warning unless the inmate, pursuant to an incident report, is 
found by the DHO to have:
    (i) Used or possessed alcohol or drugs;
    (ii) Been violent or threatened violence against staff or another 
inmate; or
    (iii) Committed a 100 level prohibited act.
    (3) Withdrawal or removal from the residential program may result in 
the inmate's being returned to his/her prior institution (when the 
inmate had been specifically transferred for the purpose of program 
participation).

[60 FR 27694, May 25, 1995]



Sec. 550.57  Incentives for residential drug abuse treatment program participation.

    (a) An inmate may receive incentives for his or her satisfactory 
involvement in the residential program. These incentives may include, 
but are not limited to, the following.
    (1) Limited financial awards, based upon the inmate's achievement/
completion of program phases.
    (2) Consideration for the maximum period of time (currently 180 
days) in a Community Corrections Center placement, provided the inmate 
is otherwise eligible for this designation.
    (3) Local institution incentives such as preferred living quarters 
or special recognition privileges.
    (4) If eligible under Sec. 550.58, consideration for early release.
    (b) An inmate must meet his/her financial program responsibility 
obligations (see 28 CFR part 545) prior to being able to receive an 
incentive for his/her residential program participation.
    (c) Withdrawal or removal from the residential program may result in 
the loss of incentives previously achieved.

[60 FR 27694, May 25, 1995]



Sec. 550.58  Consideration for early release.

    An inmate who was sentenced to a term of imprisonment pursuant to 
the provisions of 18 U.S.C. Chapter 227, Subchapter D for a nonviolent 
offense, and who is determined to have a substance abuse problem, and 
successfully completes a residential drug abuse treatment program during 
his or her current commitment may be eligible, in accordance with 
paragraph (a) of this section, for early release by a period not to 
exceed 12 months.
    (a) Additional early release criteria. (1) As an exercise of the 
discretion vested in the Director of the Federal Bureau of Prisons, the 
following categories of inmates are not eligible for early release:
    (i) INS detainees;
    (ii) Pretrial inmates;
    (iii) Contractual boarders (for example, D.C., State, or military 
inmates);
    (iv) Inmates who have a prior felony or misdemeanor conviction for 
homicide, forcible rape, robbery, or aggravated assault, or child sexual 
abuse offenses;
    (v) Inmates who are not eligible for participation in a community-
based program as determined by the Warden on the basis of his or her 
professional discretion;
    (vi) Inmates whose current offense is a felony:
    (A) That has as an element, the actual, attempted, or threatened use 
of physical force against the person or property of another, or

[[Page 599]]

    (B) That involved the carrying, possession, or use of a firearm or 
other dangerous weapon or explosives (including any explosive material 
or explosive device), or
    (C) That by its nature or conduct, presents a serious potential risk 
of physical force against the person or property of another, or
    (D) That by its nature or conduct involves sexual abuse offenses 
committed upon children.
    (2) An inmate who had successfully completed a Bureau of Prisons 
residential drug abuse treatment program before October 1, 1989 is 
otherwise eligible if:
    (i) Staff confirm that the completed program matches the treatment 
required by statute;
    (ii) The inmate signs an agreement acknowledging his/her program 
responsibility;
    (iii) The inmate completes a refresher treatment program and all 
applicable transitional services programs in a community-based program 
(i.e., in a Community Corrections Center or on home confinement); and
    (iv) Since completion of the program, the inmate has not been found 
to have committed a 100 level prohibited act and has not been found to 
have committed a prohibited act involving alcohol or drugs.
    (3) An inmate who has successfully completed a Bureau of Prisons 
residential drug abuse treatment program on or after October 1, 1989 is 
otherwise eligible if:
    (i) The inmate completes all applicable transitional services 
programs in a community-based program (i.e., in a Community Corrections 
Center or on home confinement); and
    (ii) Since completion of the program, the inmate has not been found 
to have committed a 100 level prohibited act and has not been found to 
have committed a prohibited act involving alcohol or drugs.
    (b) Application--(1) Inmates currently enrolled. Eligible inmates 
currently enrolled in a residential drug abuse treatment program shall 
automatically be considered for early release.
    (2) Inmates who had previously completed program requirements. 
Eligible inmates who have previously completed a residential drug abuse 
treatment program (or which matches the treatment required by statute) 
must notify the institution's drug abuse program coordinator via a 
Request to Staff in order to be considered for early release.
    (c) Length of reduction. (1) Except as specified in paragraphs 
(c)(2) and (3) of this section, an inmate who is approved for early 
release may receive a reduction of up to 12 months.
    (2) If the inmate has less than 12 months to serve after completion 
of all required transitional services, the amount of reduction may not 
exceed the amount of time left on service of sentence.
    (3) If the inmate cannot fulfill his or her community-based 
treatment obligations by the presumptive release date, the Community 
Corrections Regional Administrator may adjust the presumptive release 
date by the minimum amount of time necessary to allow for fulfillment of 
the treatment obligations.

[60 FR 27695, May 25, 1995, as amended at 61 FR 25122, May 17, 1996; 62 
FR 53691, Oct. 15, 1997]



Sec. 550.59  Transitional drug treatment services.

    Transitional treatment programming is required for all inmates 
completing an institution's residential treatment program. Transitional 
treatment includes treatment provided to inmates who, upon completing 
the residential program, return to the general population of that or 
another institution or who are transferred to a community-based program. 
An inmate's refusal to participate in this program is considered a 
program failure and disqualifies the inmate for any additional 
incentives consideration, and may result in the inmate's redesignation.
    (a) An inmate who successfully completes a residential drug abuse 
program and who participates in transitional treatment programming at an 
institution is required to participate in such programming for a minimum 
of one hour per month.
    (b) An inmate who successfully completes a residential drug abuse 
program and who, based on eligibility, is transferred to a Community 
Corrections Center (CCC), is required to participate

[[Page 600]]

in a community-based treatment program, in addition to the required 
employment and other program activities of the CCC. The inmate's failure 
to meet the requirements of treatment may result in the inmate's being 
returned to the institution for refusing a program assignment.
    (c) An inmate with a documented drug abuse problem but who did not 
choose to volunteer for the residential drug abuse program may be 
required to participate in transitional services as a condition of 
participation in a community-based program with the approval of the 
transitional services manager.

[60 FR 27694, May 25, 1995]



Sec. 550.60  Inmate appeals.

    (a) Administrative remedy procedures for the formal review of a 
complaint relating to any aspect of an inmate's confinement (including 
the operation of the drug abuse treatment programs) are contained in 28 
CFR part 542, subpart B.
    (b) In order to expedite staff response, an inmate who has 
previously been found to be eligible for early release must, when filing 
an administrative remedy request pursuant to 28 part CFR 542, subpart B 
on an action which would result in the inmate's loss of early release 
eligibility, indicate in the first sentence of the request that the 
request affects the inmate's early release.

[60 FR 27695, May 25, 1995]



PART 551--MISCELLANEOUS--Table of Contents




                           Subpart A--Grooming

Sec.
551.1  Policy.
551.2  Mustaches and beards.
551.3  Hairpieces.
551.4  Hair length.
551.5  Restrictions and exceptions.
551.6  Personal hygiene.
551.7  Bathing and clothing.

                     Subpart B--Marriages of Inmates

551.10  Purpose and scope.
551.11  Authority to approve a marriage.
551.12  Eligibility to marry.
551.13  Application to marry.
551.14  Special circumstances.
551.15  Furloughs.
551.16  Marriage ceremony in the institution.

   Subpart C--Birth Control, Pregnancy, Child Placement, and Abortion

551.20  Purpose and scope.
551.21  Birth control.
551.22  Pregnancy.
551.23  Abortion.
551.24  Child placement.

                     Subpart D--Inmate Organizations

551.30  Purpose and scope.
551.31  Approval of an organization.
551.32  Staff supervision.
551.33  Dues.
551.34  Organization activities.
551.35  Withdrawal of approval of an organization.
551.36  Funding.

                     Subpart E--Inmate Contributions

551.50  Policy.

             Subpart F--Volunteer Community Service Projects

551.60  Volunteer community service projects.

               Subpart G--Administering of Polygraph Test

551.70  Purpose and scope.
551.71  Procedures.

                      Subpart H--Inmate Manuscripts

551.80  Definition.
551.81  Manuscript preparation.
551.82  Mailing inmate manuscripts.
551.83  Limitations on an inmate's accumulation of manuscript material.

              Subpart I--Non-Discrimination Toward Inmates

551.90  Policy.

                       Subpart J--Pretrial Inmates

551.100  Purpose and scope.
551.101  Definitions.
551.102  Commitment prior to arraignment.
551.103  Procedure for admission.
551.104  Housing.
551.105  Custody.
551.106  Institutional employment.
551.107  Pretrial inmate reviews.
551.108  Performance pay.
551.109  Community activities.
551.110  Religious programs.
551.111  Marriage.
551.112  Education.
551.113  Counseling.

[[Page 601]]

551.114  Medical, psychiatric and psychological.
551.115  Recreation.
551.116  Discipline.
551.117  Access to legal resources.
551.118  Property.
551.119  Release of funds and property of pretrial inmates.
551.120  Visiting.

Subparts K-L [Reserved]

              Subpart M--Victim and/or Witness Notification

551.150  Purpose and scope.
551.151  Definitions.
551.152  Procedures.
551.153  Cancelling the notification request.

                   Subpart N--Smoking/No Smoking Areas

551.160  Purpose and scope.
551.161  Definitions.
551.162  Designated no smoking areas.
551.163  Designated smoking areas.
551.164  Notice of smoking areas.

    Authority: 5 U.S.C. 301; 18 U.S.C. 1512, 3621, 3622, 3624, 4001, 
4005, 4042, 4081, 4082 (Repealed in part as to offenses committed on or 
after November 1, 1987), 4161-4166 (Repealed as to offenses committed on 
or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to 
offenses committed after that date), 5039; 28 U.S.C. 509, 510; Pub. L. 
99-500 (sec. 209); 28 CFR 0.95-0.99; Attorney General's May 1, 1995 
Guidelines for Victim and Witness Assistance.

    Source: 44 FR 38252, June 29, 1979, unless otherwise noted.



                           Subpart A--Grooming



Sec. 551.1  Policy.

    The Bureau of Prisons permits an inmate to select the hair style of 
personal choice, and expects personal cleanliness and dress in keeping 
with standards of good grooming and the security, good order, and 
discipline of the institution.



Sec. 551.2  Mustaches and beards.

    An inmate may wear a mustache or beard or both. The Warden shall 
require an inmate with a beard to wear a beard covering when working in 
food service or where a beard could result in increased likelihood of 
work injury.

[46 FR 59509, Dec. 4, 1981]



Sec. 551.3  Hairpieces.

    Inmates may not wear wigs or artificial hairpieces, unless medical 
authorization to do so is approved by the Warden.

[55 FR 40354, Oct. 2, 1990]



Sec. 551.4  Hair length.

    (a) The Warden may not restrict hair length if the inmate keeps it 
neat and clean.
    (b) The Warden shall require an inmate with long hair to wear a cap 
or hair net when working in food service or where long hair could result 
in increased likelihood of work injury.
    (c) The Warden shall make available to an inmate hair care services 
which comply with applicable health and sanitation requirements.

[44 FR 38252, June 29, 1979, as amended at 46 FR 59509, Dec. 4, 1981]



Sec. 551.5  Restrictions and exceptions.

    The Warden may impose restrictions or exceptions for documented 
medical reasons.



Sec. 551.6  Personal hygiene.

    The Warden shall make available to an inmate those articles 
necessary for maintaining personal hygiene.

[46 FR 59509, Dec. 4, 1981]



Sec. 551.7  Bathing and clothing.

    Each inmate must observe the standards concerning bathing and 
clothing that exist in the institution as required by standards of 
Sec. 551.1.

[46 FR 59509, Dec. 4, 1981]



                     Subpart B--Marriages of Inmates

    Source: 49 FR 18385, Apr. 30, 1984, unless otherwise noted.



Sec. 551.10  Purpose and scope.

    The Warden shall approve an inmate's request to marry except where a 
legal restriction to the marriage exists, or where the proposed marriage 
presents a threat to the security or good order of the institution, or 
to the protection of the public. The Warden may approve the use of 
institution facilities for an inmate's marriage ceremony. If

[[Page 602]]

a marriage ceremony poses a threat to the security or good order of the 
institution, the Warden may disapprove a marriage ceremony in the 
institution.

[49 FR 18385, Apr. 30, 1984, as amended at 63 FR 5218, Jan. 30, 1998]



Sec. 551.11  Authority to approve a marriage.

    (a) The Warden may approve the marriage of a federal inmate confined 
in a federal institution. This authority may not be delegated below the 
level of Acting Warden.
    (b) The appropriate Community Corrections Manager may approve the 
request to marry of a federal inmate who is not confined in a federal 
institution (for example, a federal inmate who is in a community 
corrections center, in home confinement, in state custody, or in a local 
detention facility).

[49 FR 18385, Apr. 30, 1984, as amended at 58 FR 58248, Oct. 29, 1993]



Sec. 551.12  Eligibility to marry.

    An inmate's request to marry shall be approved provided:
    (a) The inmate is legally eligible to marry;
    (b) The inmate is mentally competent;
    (c) The intended spouse has verified, ordinarily in writing, an 
intention to marry the inmate; and
    (d) The marriage poses no threat to institution security or good 
order, or to the protection of the public.



Sec. 551.13  Application to marry.

    (a) A federal inmate confined in a Bureau institution who wants to 
get married shall submit a request to marry to the inmate's unit team. 
The unit team shall evaluate the request based on the criteria 
identified in Sec. 551.12. A written report of the unit team's findings, 
and its recommendation, shall be forwarded to the Warden for a final 
decision.
    (b) The Warden shall notify the inmate in writing whether the 
inmate's request to marry is approved or disapproved. A copy of this 
notification shall be placed in the inmate's central file. When the 
Warden's decision is to disapprove the inmate's request, the 
notification to the inmate shall include a statement of reason(s) for 
that action. The Warden shall advise the inmate that the decision may be 
appealed through the Administrative Remedy Procedure.
    (c) All expenses of the marriage (for example, a marriage license) 
shall be paid by the inmate, the inmate's intended spouse, the inmate's 
family, or other appropriate source approved by the Warden. The Warden 
may not permit appropriated funds to be used for an inmate marriage.



Sec. 551.14  Special circumstances.

    (a) Detainers and pending charges. Staff review of a marriage 
request from an inmate who has a detainer(s) and/or a pending charge(s) 
shall include an assessment of the legal effects of the marriage on 
these actions. For example, an inmate could request to marry a potential 
witness in litigation pending against that inmate. Approving this 
marriage could affect the status of this litigation.
    (b) Pretrial inmates. A pretrial inmate may request permission to 
marry in accordance with the provisions of this rule. Staff shall 
contact the court, U.S. Attorney, and in the case of an alien, the 
Immigration and Naturalization Service, to advise of the marriage 
request of the pretrial inmate and to request their comments.
    (c) Federal inmates not in Federal institutions. A federal inmate 
who is not confined in a federal institution who wants to get married 
shall submit a request to the appropriate Community Corrections Manager. 
Prior to making a decision on the inmate's request, the Community 
Corrections Manager shall advise the confining authority of the inmate's 
request and ask that information on the criteria identified in 
Sec. 551.12 be furnished.

[49 FR 18385, Apr. 30, 1984, as amended at 58 FR 58248, Oct. 29, 1993]



Sec. 551.15  Furloughs.

    An inmate whose request to marry is approved, and who also meets the 
Bureau's criteria for furlough (see part 570, subpart C), may be 
considered for a furlough for the purpose of getting married.

[[Page 603]]



Sec. 551.16  Marriage ceremony in the institution.

    (a) The Warden may approve the use of institution facilities for an 
inmate's marriage ceremony. If a marriage ceremony poses a threat to the 
security or good order of the institution, the Warden may disapprove a 
marriage ceremony in the institution. The Warden may not delegate the 
authority to approve or to disapprove a marriage ceremony in the 
institution below the level of Acting Warden.
    (b) Expenses for a marriage ceremony in the institution shall be 
paid by the inmate, the inmate's intended spouse, the inmate's family, 
or other appropriate source approved by the Warden. The Warden may not 
permit appropriated funds to be used for the marriage ceremony, except 
for those inherent in providing the place and supervision for the event. 
Upon request of the inmate, Bureau of Prisons or community clergy, or a 
justice of the peace may be authorized to assist in a marriage ceremony 
at the institution.
    (1) The marriage ceremony may be performed by Bureau of Prisons or 
community clergy, or by a justice of the peace.
    (2) Because of ecclesiastical constraints, Bureau of Prisons 
chaplains may decline to perform the marriage ceremony. Upon request of 
the inmate, a Bureau chaplain will assist that inmate in preparing for 
an approved marriage; for example, by providing, or arranging for an 
inmate to receive, pre-nuptial marriage counseling.
    (c) The Warden shall requre that a marriage ceremony at the 
institution be a private ceremony conducted without media publicity.



   Subpart C--Birth Control, Pregnancy, Child Placement, and Abortion



Sec. 551.20  Purpose and scope.

    The Bureau of Prisons provides an inmate with medical and social 
services related to birth control, pregnancy, child placement, and 
abortion. The Warden shall ensure compliance with the applicable law 
regarding these matters.



Sec. 551.21  Birth control.

    Medical staff shall provide an inmate with advice and consultation 
about methods for birth control and, where medically appropriate, 
prescribe and provide methods for birth control.



Sec. 551.22  Pregnancy.

    (a) The Warden shall ensure that each pregnant inmate is provided 
medical, case managment, and counseling services.
    (b) In order to ensure proper medical and social services, the 
inmate shall inform the institution medical staff as soon as she 
suspects she is pregnant.
    (c) Medical staff shall arrange for the childbirth to take place at 
a hospital outside the institution.

[44 FR 38252, June 29, 1979, as amended at 59 FR 62968, Dec. 6, 1994]



Sec. 551.23  Abortion.

    (a) The inmate has the responsibility to decide either to have an 
abortion or to bear the child.
    (b) The Warden shall offer to provide each pregnant inmate with 
medical, religious, and social counseling to aid her in making the 
decision whether to carry the pregnancy to full term or to have an 
elective abortion. If an inmate chooses to have an abortion, she shall 
sign a statement to that effect. The inmate shall sign a written 
statement acknowledging that she has been provided the opportunity for 
the counseling and information called for in this policy.
    (c) Upon receipt of the inmate's written statements required by 
paragraph (b) of this section, ordinarily submitted through the unit 
manager, the Clinical Director shall arrange for an abortion to take 
place.

[51 FR 47178, Dec. 30, 1986, as amended at 59 FR 62968, Dec. 6, 1994]



Sec. 551.24  Child placement.

    (a) The Warden may not permit the inmate's new born child to return 
to the institution except in accordance with the Bureau of Prisons 
policy governing visiting.
    (b) Child placement is the inmate's responsibility. The Warden shall 
provide opportunities for counseling by institution staff and community 
social

[[Page 604]]

agencies to aid the inmate with placement.
    (c) The institution staff shall work closely with community agencies 
and persons to ensure the child is appropriately placed. The staff shall 
give notice to the responsible community agency of the inmate's plan for 
her child. Child welfare workers may come to the institution in 
appropriate cases to interview and counsel an inmate.

[44 FR 38252, June 29, 1979, as amended at 51 FR 47179, Dec. 30, 1986; 
59 FR 62968, Dec. 6, 1994]



                     Subpart D--Inmate Organizations

    Source: 61 FR 11275, Mar. 19, 1996, unless otherwise noted.



Sec. 551.30  Purpose and scope.

    The Bureau of Prisons permits inmates and persons in the community 
to participate in approved inmate organizations for recreational, 
social, civic, and benevolent purposes.



Sec. 551.31  Approval of an organization.

    (a) An inmate must submit a request for recognition of a proposed 
inmate organization to the Warden. The organization may not become 
active without the Warden's approval.
    (b) The Warden may approve an inmate organization upon determining 
that:
    (1) The organization has a constitution and bylaws duly approved by 
its members; the constitution and bylaws must include the organization's 
purpose and objectives, the duties and responsibilities of its 
officer(s), and the requirements for activities reporting and 
operational review; and
    (2) The organization does not operate in opposition to the security, 
good order, or discipline of the institution.



Sec. 551.32  Staff supervision.

    (a) The Warden shall appoint a staff member as the institution's 
Inmate Organization Manager (IOM). The IOM shall be responsible for 
monitoring the activities of the institution's inmate organizations and 
staff sponsors.
    (b) The Warden or designee shall assign to a staff sponsor 
responsibility for supervising the activities of an individual inmate 
organization. The staff sponsor's duties are performed while in official 
duty status.



Sec. 551.33  Dues.

    Dues may be collected if they are required by the national 
organization, are collected by that same national organization, and the 
rate and method of institution collection have been approved by the 
Warden. No portion of the dues may be kept by the inmate organization 
for use at the institution. The organization may not make payment of 
dues a requirement of membership for an inmate who lacks funds.



Sec. 551.34  Organization activities.

    (a) An officer of the inmate organization must submit a written 
request for approval of an activity to the Warden or designee. 
Activities include, but are not limited to, meetings, guest speakers, 
sports competitions, banquets, or community programs. Activities may not 
include fund-raising projects. The request must specifically include:
    (1) Name of the organization;
    (2) Nature or purpose of the activity;
    (3) Date, time, and estimated duration of the activity;
    (4) Estimated cost;
    (5) Information concerning guest participation; and
    (6) Other pertinent information requested by the Warden.
    (b) The Warden may approve the request if the activity:
    (1) Does not conflict with scheduled inmate work or program 
activities;
    (2) Has confirmation of staff supervision;
    (3) Can be appropriately funded when applicable (see Sec. 551.36); 
and
    (4) Does not conflict with the security, good order, or discipline 
of the institution.
    (c) When an activity requires the expenditure of government funds, 
the Warden ordinarily shall require reimbursement from non-inmate 
participants (guests or members).
    (d) Each inmate organization shall be responsible for maintaining 
accurate records of its activities.
    (e) The activities of an inmate organization may be suspended 
temporarily

[[Page 605]]

due to noncompliance with Bureau policy. The IOM is responsible for 
recommending the specific suspension sanction for the Warden's approval. 
The inmate organization is to receive written notice of the proposed 
suspension sanction and shall have the opportunity to respond to the 
Warden. Continued noncompliance with Bureau policy shall result in an 
increase in the severity of the suspension sanction, and may include 
withdrawal of approval of the organization.



Sec. 551.35  Withdrawal of approval of an organization.

    The Warden may withdraw approval of an inmate organization for 
reasons of the security, good order, and discipline of the institution, 
or in accordance with Sec. 551.34(e).



Sec. 551.36  Funding.

    The Bureau of Prisons may fund approved activities of inmate 
organizations or organization requests for purchase of equipment or 
services for all inmates subject to the availability of designated 
funds.



                     Subpart E--Inmate Contributions



Sec. 551.50  Policy.

    (a) An inmate may contribute to a candidate for election to a 
federal, state or local office, in a primary, general, or special 
election.
    (b) An inmate may contribute to any international, national or local 
organization, including political parties, so long as the contribution 
does not violate any law or regulation.



             Subpart F--Volunteer Community Service Projects



Sec. 551.60  Volunteer community service projects.

    (a) A volunteer community service project is a project sponsored and 
developed by local government or by a nonprofit charitable organization, 
submitted to the institution, and recommended by the Warden for approval 
of the Regional Director. Volunteer community service projects are 
designed to provide for the public good in keeping with the overall 
goals of the community, such as community-wide beautification or public 
safety. The sponsoring organization is responsible for certifying to the 
Bureau that the community service project does not displace regular 
employees, supplant employment opportunities ordinarily available within 
the sponsoring organization, or impair contracts for services. These 
projects are not work assignments. Any inmate who chooses to participate 
does so voluntarily, and may not receive performance pay or any other 
salaried compensation for participation in the project, nor be eligible 
to submit a claim under the provisions of the Inmate Accident 
Compensation Program.
    (b) An inmate may volunteer to participate in a community service 
project by submitting a written request for the Warden's approval. The 
inmate must have custody classification appropriate for the project and 
be otherwise eligible for the conditions of the project. The decision of 
the Warden to approve or disapprove an inmate's request shall be 
documented in writing.
    (c) An inmate may appeal the Warden's decision through the 
Administrative Remedy Procedure (see 28 CFR part 542).

[58 FR 5210, Jan. 19, 1993]



               Subpart G--Administering of Polygraph Test



Sec. 551.70  Purpose and scope.

    The Bureau of Prisons cooperates with law enforcement officials and 
other authorized individuals in the performance of their duties by 
permitting them to administer polygraph tests to an inmate if the inmate 
consents to the testing.



Sec. 551.71  Procedures.

    (a) The Warden may permit polygraph tests in connection with a State 
or Federal criminal felony investigation.
    (b) The Warden may permit polygraph tests in connection with 
misdemeanor offenses, civil proceedings, or any other matters. This type 
of request, however, is generally disapproved, absent a federal court 
order for the test.

[[Page 606]]

    (c) The Warden may permit a polygraph test at the request of a 
defense counsel or other representative of the inmate. These requests 
are subject to the same standards and procedures applicable to testing 
by law enforcement officials.
    (d) The Warden may deny any request for testing which may disrupt 
the security or good order of the institution.
    (e) Upon written request to conduct a polygraph examination of an 
inmate, the Warden may approve the request if:
    (1) The validity of the request and of the examining agency can be 
confirmed;
    (2) The request complies with this section; and
    (3) The inmate gives written consent to the testing.
    (f) If the request is approved, the Warden shall notify the 
requestor that he is responsible for meeting all state and local 
requirements in administering the test.
    (g) The Bureau of Prisons maintains a record in the inmate's central 
file of the polygraph test indicating the inmate's consent and the time 
and place of and the personnel involved in the testing.



                      Subpart H--Inmate Manuscripts



Sec. 551.80  Definition.

    As used in this rule, manuscript means fiction, nonfiction, poetry, 
music and lyrics, drawings and cartoons, and other writings of a similar 
nature.



Sec. 551.81  Manuscript preparation.

    An inmate may prepare a manuscript for private use or for 
publication while in custody without staff approval. The inmate may use 
only non-work time to prepare a manuscript.



Sec. 551.82  Mailing inmate manuscripts.

    An inmate may mail a manuscript as general correspondence, in 
accordance with part 540, subpart B of this chapter. An inmate may not 
circulate his manuscript within the institution.



Sec. 551.83  Limitations on an inmate's accumulation of manuscript material.

    The Warden may limit, for housekeeping, fire-prevention, or security 
reasons, the amount of accumulated inmate manuscript material.



              Subpart I--Non-Discrimination Toward Inmates



Sec. 551.90  Policy.

    Bureau staff shall not discriminate against inmates on the basis of 
race, religion, national origin, sex, disability, or political belief. 
This includes the making of administrative decisions and providing 
access to work, housing and programs.

[63 FR 55774, Oct. 16, 1998]



                       Subpart J--Pretrial Inmates

    Source: 59 FR 60285, Nov. 22, 1994, unless otherwise noted.



Sec. 551.100  Purpose and scope.

    In addition to convicted inmates, the Bureau of Prisons houses 
persons who have not been convicted. Procedures and practices required 
for the care, custody, and control of such inmates may differ from those 
established for convicted inmates. Pretrial inmates will be separated, 
to the extent practicable, from convicted inmates. Except as specified 
by this rule, policies and standards applicable to persons committed to 
the custody of the Attorney General or the Bureau of Prisons apply also 
to pretrial inmates as defined in Sec. 551.101.



Sec. 551.101  Definitions.

    (a) Pretrial inmate. For purpose of this rule, ``pretrial inmate'' 
means a person who is legally detained but for whom the Bureau of 
Prisons has not received notification of conviction. Thus, ``pretrial 
inmate'' ordinarily includes a person awaiting trial, being tried, or 
awaiting a verdict.
    (1) Civil contempt, deportable aliens, or material witnesses. For 
purpose of this rule, an inmate committed for civil contempt, or as a 
deportable alien, or as a material witness is considered a pretrial 
inmate.

[[Page 607]]

    (2) Mental evaluation or treatment. An inmate committed under Title 
18 U.S.C. Sections 4241 (b) and (d), 4242(a), or 4243(b) is considered 
to be a pretrial inmate, whereas commitments under Sections 4243(e), 
4244, 4245 or 4246 are treated as convicted inmates.
    (3) Concurrent federal and state sentences. For purpose of this 
rule, an inmate in a status described in paragraph (a) introductory 
text, (a)(1), or (a)(2) of this section and who is at the same time 
serving a state or federal sentence is not considered a pretrial inmate.
    (b) Convicted inmate. For purposes of this rule, an individual a 
court has found guilty of an offense punishable by law.



Sec. 551.102  Commitment prior to arraignment.

    On receipt of a U.S. Marshal remand, the Bureau of Prisons shall 
accept an individual who has not been arraigned for commitment as a 
pretrial inmate, provided that the institution has appropriate detention 
facilities available for that individual.



Sec. 551.103  Procedure for admission.

    Staff in administrative institutions or institutions with 
administrative components housing U.S. Marshals' prisoners shall 
establish procedures for admitting a pretrial inmate which include, but 
are not limited to:
    (a) Verification of commitment papers;
    (b) Search of the inmate;
    (c) Photographing and fingerprinting;
    (d) Disposition of clothing and personal possessions;
    (e) Intake screening (including Notice of Separation);
    (f) Providing institution guidelines governing telephone calls 
(including procedures for making unmonitored calls to an attorney);
    (g) Provisions for personal hygiene, to include:
    (1) Issue of personal hygiene items;
    (2) Issue of clean clothing; and
    (3) Opportunity for shower and hair care;
    (h) Orientation;
    (i) Opportunity for waiver of right not to work;
    (j) Assignment to an appropriate housing unit.



Sec. 551.104  Housing.

    To the extent practicable, pretrial inmates will be housed 
separately from convicted inmates.



Sec. 551.105  Custody.

    (a) Staff ordinarily will supervise a pretrial inmate as if 
classified ``In'' custody.
    (b) Where circumstances warrant, staff may supervise a pretrial 
inmate according to procedures for other custody levels.



Sec. 551.106  Institutional employment.

    Unless a pretrial inmate signs a waiver of his or her right not to 
work, the Warden may not require the inmate to work in any assignment 
other than housekeeping tasks in the inmate's own cell and in the 
community living area.



Sec. 551.107  Pretrial inmate reviews.

    Staff shall conduct regular reviews of a pretrial inmate's status.
    (a) Each pretrial inmate shall be scheduled for an initial review by 
the unit team within 21 calendar days of the inmate's first arrival at 
the institution, and subsequent reviews shall be conducted at least 
every 90 days.
    (b) The inmate shall be notified at least 48 hours prior to the 
inmate's scheduled review.
    (c) A pretrial inmate is expected to attend these reviews. If the 
inmate refuses to appear, staff shall document in the record of the 
meeting the inmate's refusal and, if known, the reason for refusal.
    (d) Inmate reviews are to be documented on the Pretrial Inmate 
Review Report.



Sec. 551.108  Performance pay.

    The Warden may approve a pretrial inmate for performance pay and 
special awards.



Sec. 551.109  Community activities.

    (a) The Warden may not grant a furlough to a pretrial inmate (18 
U.S.C. Sec. 3622).
    (b) In an emergency, staff shall facilitate contact with the 
pretrial inmate's attorney of record, who may seek from

[[Page 608]]

the court a decision concerning release from custody or an escorted 
trip.
    (c) Except by order of the court, a pretrial inmate may not be 
considered for participation in community programs.



Sec. 551.110  Religious programs.

    (a) When consistent with institution security and good order, 
pretrial inmates may be allowed the opportunity to participate in 
religious programs with convicted inmates.
    (b) Staff shall ensure that pretrial inmates who do not participate 
in religious programs with convicted inmates have access to other 
religious programs.



Sec. 551.111  Marriage.

    A pretrial inmate may request permission to marry in accordance with 
current Bureau of Prisons policy for convicted inmates. Staff shall 
contact the court, U.S. Attorney, U.S. Marshals Service, and in the case 
of an alien, the Immigration and Naturalization Service, to advise of 
the marriage request of the pretrial inmate and to request their 
comments.



Sec. 551.112  Education.

    (a) A pretrial inmate may participate in correspondence and self-
study educational courses. Institutional staff may also arrange for 
educational assistance to the pretrial inmate through the use of 
contract personnel or community volunteers.
    (b) When consistent with institution security and good order, 
pretrial inmates may be allowed the opportunity to have access to the 
institution's educational program.



Sec. 551.113  Counseling.

    (a) When consistent with institution security and good order, 
pretrial inmates may be allowed the opportunity to receive counseling 
services with convicted inmates.
    (b) Staff shall ensure that pretrial inmates who do not receive 
counseling services with convicted inmates have access to other 
counseling services.



Sec. 551.114  Medical, psychiatric and psychological.

    (a) Staff shall provide the pretrial inmate with the same level of 
basic medical (including dental), psychiatric, and psychological care 
provided to convicted inmates.
    (b) Staff shall advise the court, through the U.S. Marshal, of 
medication the pretrial inmate receives which may alter the inmate's 
courtroom behavior.
    (c) In event of serious illness or death of a pretrial inmate, staff 
shall notify the committing court, U.S. Marshal, U.S. Attorney's Office, 
the inmate's attorney of record, and the designated family member or 
next of kin.



Sec. 551.115  Recreation.

    (a) When consistent with institution security and good order, 
pretrial inmates may be allowed the opportunity to participate with 
convicted inmates in recreational activities. Staff shall ensure that 
inmates who do not participate in recreational activities with convicted 
inmates have access to other recreational activities.
    (b) At a minimum, and except as noted in paragraph (d) of this 
section, staff shall provide the pretrial inmate with the following 
recreational opportunities:
    (1) One hour daily of outside recreation, weather permitting; or
    (2) Two hours daily of indoor recreation.
    (c) Staff shall make recreation equipment available to the pretrial 
inmate including, but not limited to, physical exercise equipment, 
books, table games, and television.
    (d) Staff shall provide the pretrial inmate housed in Administrative 
Detention or Disciplinary Segregation with exercise as provided by the 
Bureau of Prisons rules on Inmate Discipline. (See 28 CFR part 541, 
subpart B.)
    (e) Provisions of paragraphs (b) and (c) of this section must be 
carried out unless compelling security or safety reasons dictate 
otherwise. Institution staff shall document these reasons.



Sec. 551.116  Discipline.

    (a) Staff shall require the pretrial inmate to abide by Bureau of 
Prisons rules on Inmate Discipline (see 28 CFR

[[Page 609]]

part 541, subpart B), subject to the limitations of Sec. 551.106 of this 
part.
    (b) Staff shall advise the court, through the U.S. Marshal, of 
repeated or serious disruptive behavior by a pretrial inmate.



Sec. 551.117  Access to legal resources.

    (a) The Warden shall provide the opportunity for pretrial inmate-
attorney visits on a seven-days-a-week basis.
    (b) Staff shall provide pretrial inmates with access to legal 
materials in the institution.
    (c) Staff shall allow the pretrial inmate, upon the inmate's 
request, to telephone the inmate's attorney as often as resources of the 
institution allow.



Sec. 551.118  Property.

    (a) A pretrial inmate may retain personal property as authorized for 
convicted inmates housed in administrative detention units. (See 28 CFR 
part 541, subpart B.)
    (b) Staff may store the pretrial inmate's unauthorized personal 
property until the individual is released, transferred to another 
facility, or sentenced and committed to a federal institution.
    (c) Staff may supply the pretrial inmate with clothing for court 
appearances, or the inmate may supply his or her own.



Sec. 551.119  Release of funds and property of pretrial inmates.

    (a) Staff shall establish procedures which allow for the release of 
funds and personal property to pretrial inmates released during other 
than normal business hours.
    (b) Staff shall ensure that pretrial inmates are informed of 
existing policy relative to the commissary account and the deposit/
release of funds.



Sec. 551.120  Visiting.

    Staff shall allow pretrial inmates to receive visits in accordance 
with the Bureau's rule and local institution guidelines on visiting. 
Staff may allow a pretrial inmate special visits to protect the inmate's 
business interests or to help prepare for trial.

Subparts K-L [Reserved]



              Subpart M--Victim and/or Witness Notification

    Source: 49 FR 18386, Apr. 30, 1984, unless otherwise noted.



Sec. 551.150  Purpose and scope.

    The Bureau of Prisons provides a requesting victim and/or witness of 
a serious crime with information on the release from a Bureau 
institution of the inmate convicted of that serious crime.

[64 FR 68265, Dec. 6, 1999]



Sec. 551.151  Definitions.

    (a) For purpose of this rule, victim is generally defined as someone 
who suffers direct or threatened physical, emotional, or financial harm 
as the result of the commission of a crime. The term ``victim'' also 
includes the immediate family of a minor or a homicide victim.
    (b) For purpose of this rule, witness is defined as someone who has 
information or evidence concerning a crime, and provides information 
regarding this knowledge to a law enforcement agency. Where the witness 
is a minor, the term ``witness'' includes an appropriate family member. 
The term ``witness'' does not include defense witnesses or those 
individuals involved in the crime as a perpetrator or accomplice.
    (c) For purpose of this rule, serious crime is defined as a criminal 
offense that involves personal violence, attempted or threatened 
personal violence or significant property loss.
    (d) For purpose of this rule, the phrase release from a Bureau 
institution refers to an inmate's furlough, parole (including appearance 
before the Parole Commission), transfer to a State or local detention 
facility, transfer to a community corrections center, mandatory release, 
expiration of sentence, escape (including apprehension), death, and 
other such release-related information.

[49 FR 18386, Apr. 30, 1984, as amended at 55 FR 6178, Feb. 21, 1990; 64 
FR 68265, Dec. 6, 1999]



Sec. 551.152  Procedures.

    (a) A victim and/or witness of a serious crime who wants to be 
notified of a specific inmate's release must make

[[Page 610]]

this request to the United States Attorney in the district where the 
prosecution occurred. Requests for notification received by the Bureau 
of Prisons directly from a victim and/or witness will be referred to the 
U.S. Attorney in the district of prosecution for approval.
    (b) Institution staff shall promptly notify the victim and/or 
witness when his or her request for notification has been received. 
Staff shall advise each approved victim and/or witness of that person's 
responsibility for notifying the Bureau of Prisons of any address and/or 
telephone number changes.

[49 FR 18386, Apr. 30, 1984, as amended at 55 FR 6178, Feb. 21, 1990]



Sec. 551.153  Cancelling the notification request.

    (a) A victim and/or witness may request cancellation of the 
notification by contacting either the Bureau of Prisons or the U.S. 
Attorney from the prosecuting district. The Bureau of Prisons shall 
notify the victim and/or witness that his or her request for 
notification has been cancelled.
    (b) Bureau of Prisons staff may cancel a notification request when 
the victim and/or witness has not responded within 60 calendar days to a 
Bureau of Prisons inquiry concerning whether the victim and/or witness 
wishes to continue receiving notification of the inmate's release(s).
    (c) A notification request by a victim and/or witness ordinarily 
terminates when the inmate has completed service of the sentence for the 
serious crime which resulted in the request for notification.



                   Subpart N--Smoking/No Smoking Areas

    Source: 59 FR 34742, July 6, 1994, unless otherwise noted.



Sec. 551.160  Purpose and scope.

    To advance towards becoming a clean air environment and to protect 
the health and safety of staff and inmates, the Bureau of Prisons will 
restrict areas and circumstances where smoking is permitted within its 
institutions and offices.



Sec. 551.161  Definitions.

    For purpose of this subpart, smoking is defined as carrying or 
inhaling a lighted cigar, cigarette, pipe or other lighted tobacco 
products.



Sec. 551.162  Designated no smoking areas.

    All areas of Bureau of Prisons facilities and vehicles are no 
smoking areas unless specifically designated as a smoking area by the 
Warden as set forth in Sec. 551.163.



Sec. 551.163  Designated smoking areas.

    (a) At all medical referral centers, including housing units, and at 
minimum security institutions, including satellite camps and intensive 
confinement centers, the Warden shall identify ``smoking areas'', 
ordinarily outside of all buildings and away from all entrances so as 
not to expose others to second-hand smoke.
    (b) At all low, medium, high, and administrative institutions other 
than medical referral centers, the Warden shall identify outdoor smoking 
areas and may, but is not required to, designate a limited number of 
indoor smoking areas where the needs of effective operations so require, 
especially for those who may be employed in, or restricted to, a 
nonsmoking area for an extended period of time.
    (c) To the maximum extent practicable nonsmoking inmates shall be 
housed in nonsmoking living quarters.



Sec. 551.164  Notice of smoking areas.

    The Warden shall ensure that smoking areas are clearly identified by 
the appropriate placement of signs. The absence of a sign shall be 
interpreted as indicating a no smoking area. Appropriate disciplinary 
action shall be taken for failure to observe smoking restrictions.



PART 552--CUSTODY--Table of Contents




Subpart A [Reserved]

  Subpart B--Searches of Housing Units, Inmates, and Inmate Work Areas

Sec.
552.10  Purpose and scope.
552.11  Body searches of inmates.

[[Page 611]]

552.12  Close observation.
552.13  X-ray, major instrument, fluoroscope, or surgical intrusion.
552.14  Search of inmate housing and work areas.

    Subpart C--Use of Force and Application of Restraints on Inmates

552.20  Purpose and scope.
552.21  Types of force.
552.22  Principles governing the use of force and application of 
          restraints.
552.23  Confrontation avoidance procedures.
552.24  Use of four-point restraints.
552.25  Use of chemical agents or non-lethal weapons.
552.26  Medical attention in use of force and application of restraints 
          incidents.
552.27  Documentation of use of force and application of restraints 
          incidents.

                 Subpart D--Hostage Situation Management

552.30  Purpose and scope.
552.31  Negotiations.
552.32  Hostages.
552.33  Media.

                  Subpart E--Suicide Prevention Program

552.40  Purpose and scope.
552.41  Policy.
552.42  Program Coordinator.
552.43  Procedures.
552.44  Housing suicidal inmates.
552.45  Authority and responsibility.
552.46  Suicide watches.
552.47  Custodial issues.
552.48  Transfer of inmates to other institutions.
552.49  Analysis of suicides.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 5006-5024 (Repealed October 12, 1984, as to offenses 
committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

    Source: 45 FR 33941, May 20, 1980, unless otherwise noted.

Subpart A [Reserved]



  Subpart B--Searches of Housing Units, Inmates, and Inmate Work Areas

    Source: 45 FR 75134, Nov. 13, 1980, unless otherwise noted.



Sec. 552.10  Purpose and scope.

    In order to further the safe, secure, and orderly running of its 
institutions, the Bureau of Prisons conducts searches of inmates and of 
inmate housing and work areas to locate contraband and to deter its 
introduction and movement. Staff shall employ the least intrusive method 
of search practicable, as indicated by the type of contraband and the 
method of suspected introduction.



Sec. 552.11  Body searches of inmates.

    (a) Pat search-- an inspection of an inmate, using the hands, that 
does not require the inmate to remove clothing. The inspection includes 
a search of the inmate's clothing and personal effects. A metal detector 
search may be done under the same circumstances. Staff may conduct a pat 
search of an inmate on a routine or random basis to control contraband.
    (b) Visual search-- a visual inspection of all body surfaces and 
body cavities.
    (1) Staff may conduct a visual search where there is reasonable 
belief that contraband may be concealed on the person, or a good 
opportunity for concealment has occured. For example, placement in a 
special housing unit (see 28 CFR part 541, subpart B), leaving the 
institution, or re-entry into an institution after contact with the 
public (after a community trip, court transfer, or after a ``contact'' 
visit in a visiting room) is sufficient to justify a visual search. The 
visual search shall be made in a manner designed to assure as much 
privacy to the inmate as practicable.
    (2) Staff of the same sex as the inmate shall make the search, 
except where circumstances are such that delay would mean the likely 
loss of contraband. Where staff of the opposite sex makes a visual 
search, staff shall document the reasons for the opposite sex search in 
the inmate's central file.
    (c) Digital or simple instrument search--inspection for contraband 
or any other foreign item in a body cavity of an inmate by use of 
fingers or simple instruments, such as an otoscope, tongue blade, short 
nasal speculum, and simple forceps. A digital or simple instrument 
search may be conducted only by designated qualified health personnel 
(for example, physicians, physician assistants, and nurses) upon

[[Page 612]]

approval of the Warden or Acting Warden and only if the Warden or Acting 
Warden has reasonable belief that an inmate is concealing contraband in 
or on his person. If located, the contraband or foreign item may be 
removed immediately by medical staff if such removal can easily be 
effected by use of fingers or the simple instruments referred to above. 
Staff shall document all digital and simple instrument searches and the 
reasons for the searches in the inmate's central file.
    (1) Staff shall solicit the inmate's written consent prior to 
conducting a digital or simple instrument search. However, the inmate's 
consent is not required.
    (2) Staff may not conduct a digital or simple instrument search if 
it is likely to result in physical injury to the inmate.

[45 FR 75134, Nov. 13, 1980, as amended at 48 FR 48970, Oct. 21, 1983; 
56 FR 21036, May 6, 1991]



Sec. 552.12  Close observation.

    When there is reasonable belief that an inmate has ingested 
contraband or concealed contraband in a body cavity and the methods of 
search specified in Sec. 552.11 are inappropriate or likely to result in 
physical injury to the inmate, the Warden or designee may authorize the 
placement of an inmate in a room or cell for the purpose of staff's 
closely observing that inmate until the inmate has voided the contraband 
or until sufficient time has elapsed to preclude the possibility that 
the inmate is concealing contraband.
    (a) The length of close observation status will be determined on an 
individual basis. Ordinarily, the Captain, in consultation with 
qualified health personnel, shall determine when termination is 
appropriate. The status of an inmate under close observation for as long 
as three days must be reviewed by the Segregation Review Official 
according to the provisions in Sec. 541.22(c) of this chapter, and the 
initial SRO review conducted within three work days shall be a formal 
hearing. Maintaining an inmate under close observation beyond seven days 
requires approval of the Warden, who makes this decision in consultation 
with the Captain and qualified health personnel.
    (b) The supervising staff member shall be the same sex as the inmate 
and shall maintain complete and constant visual supervision of the 
inmate.
    (c) The supervisor responsible for initiating the close observation 
watch shall advise the inmate of the conditions and of what is expected.
    (1) The inmate shall be required to provide a urine sample within 
two hours of placement under close observation in accordance with the 
provisions of Sec. 550.30 of this chapter on urine surveillance. A 
second urine sample is required prior to releasing the inmate from close 
observation.
    (2) The light will be kept on at all times.
    (3) No inmate under close observation status may be allowed to come 
into contact with another inmate.
    (4) The inmate ordinarily may not be allowed personal property while 
under close observation status, except legal and personal mail and a 
reasonable amount of legal materials when requested. Personal hygiene 
items will be controlled by staff.
    (5) When the inmate is lying on a bed, the inmate shall be required 
to lie on top of the mattress in full view, weather and room temperature 
permitting. When necessary for the inmate to use cover, hands must 
remain visible at all times so that staff can observe any attempt to 
move contraband.
    (6) Due to security concerns, the inmate ordinarily may not be 
permitted recreation outside of the cell.
    (7) The inmate is to be served the same meals as those served to the 
general population, unless medically contraindicated.
    (8) No medications may be given to the inmate except for those 
prescribed and given by hospital personnel. No laxatives may be given 
except natural laxatives, i.e., coffee, prune juice, etc.
    (9) When the inmate needs to urinate and/or defecate, the inmate 
will be furnished an empty hospital bed pan.
    (10) When the inmate requests to shave, to brush teeth, or other 
such request, a wash pan and container of water is to be provided for 
use in the cell.

[[Page 613]]

    (11) Institution staff shall be available to the inmate upon 
request, within reason and within the bounds of security concerns.

[56 FR 21036, May 6, 1991]



Sec. 552.13  X-ray, major instrument, fluoroscope, or surgical intrusion.

    (a) The institution physician may authorize use of a fluoroscope, 
major instrument (including anoscope or vaginal speculum), or surgical 
intrusion for medical reasons only, with the inmate's consent.
    (b) The institution physician may authorize use of an X-ray for 
medical reasons and only with the consent of the inmate. When there 
exists no reasonable alternative, and an X-ray examination is determined 
necessary for the security, good order, or discipline of the 
institution, the Warden, upon approval of the Regional Director, may 
authorize the institution physician to order a non-repetitive X-ray 
examination for the purpose of determining if contraband is concealed in 
or on the inmate (for example: in a cast or body cavity). The X-ray 
examination may not be performed if it is determined by the institution 
physician that it is likely to result in serious or lasting medical 
injury or harm to the inmate. Staff shall place documentation of the 
examination and the reasons for the examination in the inmate's central 
file and medical file.
    (1) The Warden and Regional Director or persons officially acting in 
that capacity may not redelegate the authority to approve an X-ray 
examination for the purpose of determining if contrabrand is present. An 
Acting Warden or Acting Regional Director may, however, perform this 
function.
    (2) Staff shall solicit the inmate's consent prior to the X-ray 
examination. However, the inmate's consent is not required.
    (c) The Warden may direct X-rays of inanimate objects where the 
inmate is not exposed.

[45 FR 75134, Nov. 13, 1980, as amended at 48 FR 48970, Oct. 21, 1983. 
Redesignated and amended at 56 FR 20136, 20137, May 6, 1991]



Sec. 552.14  Search of inmate housing and work areas.

    (a) Staff may search an inmate's housing and work area, and personal 
items contained within those areas, without notice to or prior approval 
from the inmate and without the inmate's presence.
    (b) Staff conducting the search shall leave the housing or work area 
as nearly as practicable in its original order.

[45 FR 75134, Nov. 13, 1980. Redesignated at 56 FR 21036, May 6, 1991]



    Subpart C--Use of Force and Application of Restraints on Inmates

    Source: 54 FR 21394, May 17, 1989, unless otherwise noted.



Sec. 552.20  Purpose and scope.

    The Bureau of Prisons authorizes staff to use force only as a last 
alternative after all other reasonable efforts to resolve a situation 
have failed. When authorized, staff must use only that amount of force 
necessary to gain control of the inmate, to protect and ensure the 
safety of inmates, staff, and others, to prevent serious property damage 
and to ensure institution security and good order. Staff are authorized 
to apply physical restraints necessary to gain control of an inmate who 
appears to be dangerous because the inmate:
    (a) Assaults another individual;
    (b) Destroys government property;
    (c) Attempts suicide;
    (d) Inflicts injury upon self; or
    (e) Becomes violent or displays signs of imminent violence.

This rule on application of restraints does not restrict the use of 
restraints in situations requiring precautionary restraints, 
particularly in the movement or transfer of inmates (e.g., the use of 
handcuffs in moving inmates to and from a cell in detention, escorting 
an inmate to a Special Housing Unit pending investigation, etc.).

[59 FR 30469, June 13, 1994, as amended at 61 FR 39800, July 30, 1996]

[[Page 614]]



Sec. 552.21  Types of force.

    (a) Immediate use of force. Staff may immediately use force and/or 
apply restraints when the behavior described in Sec. 552.20 constitutes 
an immediate, serious threat to the inmate, staff, others, property, or 
to institution security and good order.
    (b) Calculated use of force and/or application of restraints. This 
occurs in situations where an inmate is in an area that can be isolated 
(e.g., a locked cell, a range) and where there is no immediate, direct 
threat to the inmate or others. When there is time for the calculated 
use of force or application of restraints, staff must first determine if 
the situation can be resolved without resorting to force (see 
Sec. 552.23).
    (c) Use of Force Team Technique. If use of force is determined to be 
necessary, and other means of gaining control of an inmate are deemed 
inappropriate or ineffective, then the Use of Force Team Technique shall 
be used to control the inmate and to apply soft restraints, to include 
ambulatory leg restraints. The Use of Force Team Technique ordinarily 
involves trained staff, clothed in protective gear, who enter the 
inmate's area in tandem, each with a coordinated responsibility for 
helping achieve immediate control of the inmate.
    (d) Exceptions. Any exception to this rule is prohibited, except 
where the facts and circumstances known to the staff member would 
warrant a person using sound correctional judgment to reasonably believe 
other action is necessary (as a last resort) to prevent serious physical 
injury, or serious property damage which would immediately endanger the 
safety of staff, inmates, or others.

[59 FR 30469, June 13, 1994, as amended at 61 FR 39800, July 30, 1996]



Sec. 552.22  Principles governing the use of force and application of restraints.

    (a) Staff ordinarily shall first attempt to gain the inmate's 
voluntary cooperation before using force.
    (b) Force may not be used to punish an inmate.
    (c) Staff shall use only that amount of force necessary to gain 
control of the inmate. Situations when an appropriate amount of force 
may be warranted include, but are not limited to:
    (1) Defense or protection of self or others;
    (2) Enforcement of institutional regulations; and
    (3) The prevention of a crime or apprehension of one who has 
committed a crime.
    (d) Where immediate use of restraints is indicated, staff may 
temporarily apply such restraints to an inmate to prevent that inmate 
from hurting self, staff, or others, and/or to prevent serious property 
damage. When the temporary application of restraints is determined 
necessary, and after staff have gained control of the inmate, the Warden 
or designee is to be notified immediately for a decision on whether the 
use of restraints should continue.
    (e) Staff may apply restraints (for example, handcuffs) to the 
inmate who continues to resist after staff achieve physical control of 
that inmate, and may apply restraints to any inmate who is placed under 
control by the Use of Force Team Technique. If an inmate in a forcible 
restraint situation refuses to move to another area on his own, staff 
may physically move that inmate by lifting and carrying the inmate to 
the appropriate destination.
    (f) Restraints should remain on the inmate until self-control is 
regained.
    (g) Except when the immediate use of restraints is required for 
control of the inmate, staff may apply restraints to, or continue the 
use of progressive restraints on, an inmate while in a cell in 
administrative detention or disciplinary segregation only with approval 
of the Warden or designee.
    (h) Restraint equipment or devices (e.g., handcuffs) may not be used 
in any of the following ways:
    (1) As a method of punishing an inmate.
    (2) About an inmate's neck or face, or in any manner which restricts 
blood circulation or obstructs the inmate's airways.
    (3) In a manner that causes unnecessary physical pain or extreme 
discomfort.
    (4) To secure an inmate to a fixed object, such as a cell door or 
cell grill, except as provided in Sec. 552.24.

[[Page 615]]

    (i) Medication may not be used as a restraint solely for security 
purposes.
    (j) All incidents involving the use of force and the application of 
restraints (as specified in Sec. 552.27) must be carefully documented.

[54 FR 21394, May 17, 1989. Redesignated and amended at 59 FR 30469, 
30470, June 13, 1994; 61 FR 39800, July 30, 1996]



Sec. 552.23  Confrontation avoidance procedures.

    Prior to any calculated use of force, the ranking custodial official 
(ordinarily the Captain or shift Lieutenant), a designated mental health 
professional, and others shall confer and gather pertinent information 
about the inmate and the immediate situation. Based on their assessment 
of that information, they shall identify a staff member(s) to attempt to 
obtain the inmate's voluntary cooperation and, using the knowledge they 
have gained about the inmate and the incident, determine if use of force 
is necessary.

[59 FR 30470, June 13, 1994]



Sec. 552.24  Use of four-point restraints.

    When the Warden determines that four-point restraints are the only 
means available to obtain and maintain control over an inmate, the 
following procedures must be followed:
    (a) Soft restraints (e.g., vinyl) must be used to restrain an 
inmate, unless:
    (1) Such restraints previously have proven ineffective with respect 
to that inmate, or
    (2) Such restraints are proven ineffective during the initial 
application procedure.
    (b) Inmates will be dressed in clothing appropriate to the 
temperature.
    (c) Beds will be covered with a mattress, and a blanket/sheet will 
be provided to the inmate.
    (d) Staff shall check the inmate at least every 15 minutes, both to 
ensure that the restraints are not hampering circulation and for the 
general welfare of the inmate. When an inmate is restrained to a bed, 
staff shall periodically rotate the inmate's position to avoid soreness 
or stiffness.
    (e) A review of the inmate's placement in four-point restraints 
shall be made by a Lieutenant every two hours to determine if the use of 
restraints has had the required calming effect and so that the inmate 
may be released from these restraints (completely or to lesser 
restraints) as soon as possible. At every two-hour review, the inmate 
will be afforded the opportunity to use the toilet, unless the inmate is 
continuing to actively resist or becomes violent while being released 
from the restraints for this purpose.
    (f) When the inmate is placed in four-point restraints, qualified 
health personnel shall initially assess the inmate to ensure appropriate 
breathing and response (physical or verbal). Staff shall also ensure 
that the restraints have not restricted or impaired the inmate's 
circulation. When inmates are so restrained, qualified health personnel 
ordinarily are to visit the inmate at least twice during each eight hour 
shift. Use of four-point restraints beyond eight hours requires the 
supervision of qualified health personnel. Mental health and qualified 
health personnel may be asked for advice regarding the appropriate time 
for removal of the restraints.
    (g) When it is necessary to restrain an inmate for longer than eight 
hours, the Warden (or designee) or institution administrative duty 
officer shall notify the Regional Director or Regional Duty Officer by 
telephone.

[54 FR 21394, May 17, 1989. Redesignated and amended at 59 FR 30469, 
30470, June 13, 1994; 61 FR 39800, July 30, 1996]



Sec. 552.25  Use of chemical agents or non-lethal weapons.

    The Warden may authorize the use of chemical agents or non-lethal 
weapons only when the situation is such that the inmate:
    (a) Is armed and/or barricaded; or
    (b) Cannot be approached without danger to self or others; and
    (c) It is determined that a delay in bringing the situation under 
control would constitute a serious hazard to the inmate or others, or 
would result in a major disturbance or serious property damage.

[54 FR 21394, May 17, 1989. Redesignated and amended at 59 FR 30469, 
30470, June 13, 1994]

[[Page 616]]



Sec. 552.26  Medical attention in use of force and application of restraints incidents.

    (a) In immediate use of force situations, staff shall seek the 
assistance of mental health or qualified health personnel upon gaining 
physical control of the inmate. When possible, staff shall seek such 
assistance at the onset of the violent behavior. In calculated use of 
force situations, the use of force team leader shall seek the guidance 
of qualified health personnel (based upon a review of the inmate's 
medical record) to identify physical or mental problems. When mental 
health staff or qualified health personnel determine that an inmate 
requires continuing care, and particularly when the inmate to be 
restrained is pregnant, the deciding staff shall assume responsibility 
for the inmate's care, to include possible admission to the institution 
hospital, or, in the case of a pregnant inmate, restraining her in other 
than face down four-point restraints.
    (b) After any use of force or forcible application of restraints, 
the inmate shall be examined by qualified health personnel, and any 
injuries noted, immediately treated.

[61 FR 39801, July 30, 1996]



Sec. 552.27  Documentation of use of force and application of restraints incidents.

    Staff shall appropriately document all incidents involving the use 
of force, chemical agents, or non-lethal weapons. Staff shall also 
document, in writing, the use of restraints on an inmate who becomes 
violent or displays signs of imminent violence. A copy of the report 
shall be placed in the inmate's central file.

[59 FR 30470, June 13, 1994]



                 Subpart D--Hostage Situation Management

    Source: 61 FR 38042, July 22, 1996, unless otherwise noted.



Sec. 552.30  Purpose and scope.

    The Bureau of Prisons primary objectives in all hostage situations 
are to safely free the hostage(s) and to regain control of the 
institution.



Sec. 552.31  Negotiations.

    The Warden is not ordinarily involved directly in the negotiation 
process. Instead, this responsibility is ordinarily assigned to a team 
of individuals specifically trained in hostage negotiation techniques.
    (a) Negotiators have no decision-making authority in hostage 
situations, but rather serve as intermediaries between hostage takers 
and command center staff.
    (b) During the negotiation process, the following items are non-
negotiable: release of captors from custody, providing of weapons, 
exchange of hostages, and immunity from prosecution.



Sec. 552.32  Hostages.

    Captive staff have no authority and their directives shall be 
disregarded.



Sec. 552.33  Media.

    The Warden shall assign staff to handle all news releases and news 
media inquiries in accordance with the rule on Contact with News Media 
(see 28 CFR 540.65).



                  Subpart E--Suicide Prevention Program

    Source: 55 FR 17355, Apr. 24, 1990, unless otherwise noted.



Sec. 552.40  Purpose and scope.

    The Bureau of Prisons provides guidelines for the management of 
potentially suicidal inmates. While suicides cannot be totally 
eliminated, the Bureau of Prisons is responsible for monitoring the 
health and welfare of individual inmates and for ensuring that 
procedures are pursued to help preserve life.



Sec. 552.41  Policy.

    Each Bureau of Prisons institution, other than medical centers, will 
implement a suicide prevention program which conforms to the procedures 
outlined in this rule. Each Bureau of Prisons medical center is to 
develop specific written procedures, consistent with the specialized 
nature of the institution and the intent of this rule.

[[Page 617]]



Sec. 552.42  Program Coordinator.

    Each Warden shall designate in writing a full-time staff member to 
serve as Program Coordinator for an institution Suicide Prevention 
Program. The Program Coordinator shall be responsible for managing the 
treatment of suicidal inmates and for ensuring that the institution's 
suicide prevention program conforms to the guidelines for training, 
identification, referral, and assessment/intervention outlined in this 
rule.



Sec. 552.43  Procedures.

    (a) Training. The Program Coordinator will ensure that all staff 
will be trained (ordinarily by psychology services personnel) to 
recognize signs indicative of a potential suicide, the appropriate 
referral process, and suicide prevention techniques.
    (b) Identification. All newly admitted inmates will be screened by a 
physician's assistant (PA) ordinarily within twenty-four hours of 
admission to the institution for both obvious and subtle signs of 
potential for suicide. Except for inmates confined at Metropolitan 
Correctional Centers, Federal Detention Centers or in Federal Detention 
Units, psychology staff will conduct a second, more comprehensive 
appraisal, ordinarily within 14 days of the inmate's admission to the 
institution.
    (c) Referral. During regular working hours staff shall immediately 
advise the Program Coordinator of any inmate who exhibits behavior 
indicative of suicide potential. In emergency situations or during non-
routine working hours, the potentially suicidal individual will be 
placed on formal suicide watch pending evaluation by the Program 
Coordinator or delegatee at his or her earliest opportunity.
    (d) Assessment/Intervention. There are varying degrees of potential 
for suicidal and other deliberate self-injurious behavior which may 
necessitate a variety of clinical interventions other than placing an 
inmate on suicide watch. These recommendations might include heightened 
staff or inmate interaction, a room/cell change, greater observation, or 
referral for psychotropic medication.
    (1) Non-suicidal inmates. If the Program Coordinator determines that 
the inmate does not appear imminently suicidal, he/she shall document in 
writing the basis for this conclusion and any treatment recommendations 
made. This documentation is placed in the inmate's medical, psychology, 
and central file.
    (2) Suicidal inmates. If the Program Coordinator determines the 
individual to have an imminent potential for suicide, the inmate will be 
placed on suicide watch in the institution's designated suicide 
prevention room. The actions and findings of the Program Coordinator 
will be documented, with copies going to the central file, medical 
record, psychology file, and the Warden. The inmate on watch will 
ordinarily be seen by the Program Coordinator on at least a daily basis. 
Unit staff will have frequent contact with the inmate while he/she is on 
watch. Only the Program Coordinator will have the authority to remove an 
inmate from suicide watch. Termination of the watch will be documented 
with copies to the central file, medical record, psychology file, and 
the Warden. There should be a clear description of the resolution of the 
crisis and guidelines for follow-up care.



Sec. 552.44  Housing suicidal inmates.

    Inmates on watch will be placed in the institution's designated 
suicide prevention room, a non-administrative detention/segregation cell 
ordinarily located in the health services area. Despite the cell's 
location, the inmate will not be admitted as an in-patient unless there 
are medical indications that would necessitate immediate 
hospitalization.



Sec. 552.45  Authority and responsibility.

    The Program Coordinator will have responsibility for determining the 
specific conditions of the watch.



Sec. 552.46  Suicide watches.

    (a) Requirements for watches. Individuals assigned to suicide watch 
will have verbal communication with, and CONSTANT observation of, the 
suicidal inmate at all times.
    (b) Inmate companions. Any institution, at the Warden's discretion, 
may utilize inmates as companions to help monitor suicidal inmates. If 
the Warden authorizes a companion program,

[[Page 618]]

the Program Coordinator will be responsible for the selection, training, 
assignment, and removal of individual companions. These companions will 
receive at least semi-annual training in program procedures and purpose. 
Inmates selected as companions shall receive performance pay for time 
spent monitoring a potentially suicidal inmate. The authorization for 
the use of inmate companions is to be made in writing by the Warden on a 
case-by-case basis.



Sec. 552.47  Custodial issues.

    The Program Coordinator will arrange for a potentially suicidal 
inmate to be removed from Special Housing Unit status prior to 
completion of his/her administrative detention or sanction and placed on 
suicide watch. Once the suicide crisis is over, the inmate will be 
expected to satisfy the administrative detention or Disciplinary 
Segregation sanction unless the Segregation Review Official finds the 
completion of the administrative detention or sanction no longer 
necessary and/or advisable.



Sec. 552.48  Transfer of inmates to other institutions.

    The Program Coordinator will be responsible for making emergency 
referrals of suicidal inmates to the appropriate medical center. No 
inmate who is determined to be imminently suicidal will be transferred 
to another institution, except to a medical center on an emergency 
basis.



Sec. 552.49  Analysis of suicides.

    If an inmate suicide does occur, the Program Coordinator will 
immediately notify the Regional Administrator, Psychology Services, who 
will arrange for a psychological reconstruction of the suicide to be 
completed by a psychologist from another institution.



PART 553--INMATE PROPERTY--Table of Contents




Subpart A [Reserved]

                   Subpart B--Inmate Personal Property

Sec.
553.10  Purpose and scope.
553.11  Limitations on inmate personal property.
553.12  Contraband.
553.13  Procedures for handling contraband.
553.14  Inmate transfer between institutions and inmate release.
553.15  Limitations on personal property--medical transfers.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 
4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 4126, 5006-5024 (Repealed October 12, 1984 as to 
offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 
0.95-0.99.

    Source: 48 FR 19573, Apr. 29, 1983, unless otherwise noted.

Subpart A [Reserved]



                   Subpart B--Inmate Personal Property



Sec. 553.10  Purpose and scope.

    It is the policy of the Bureau of Prisons that an inmate may possess 
ordinarily only that property which the inmate is authorized to retain 
upon admission to the institution, which is issued while the inmate is 
in custody, which the inmate purchases in the institution commissary, or 
which is approved by staff to be mailed to, or otherwise received by an 
inmate. These rules contribute to the management of inmate personal 
property in the institution, and contribute to a safe environment for 
staff and inmates by reducing fire hazards, security risks, and 
sanitation problems which relate to inmate personal property. Consistent 
with the mission of the institution, each Warden shall identify in 
writing that personal property which may be retained by an inmate in 
addition to that personal property which has been approved by the 
Director for retention at all institutions.

[48 FR 19573, Apr. 29, 1983, as amended by 64 FR 36753, July 7, 1999]



Sec. 553.11  Limitations on inmate personal property.

    (a) Numerical limitations. Authorized personal property may be 
subject to numerical limitations. The institution's Admission and 
Orientation program shall include notification to the inmate of any 
numerical limitations in effect at the institution and a current list of 
any numerical limitations shall

[[Page 619]]

be posted on inmate unit bulletin boards.
    (b) Storage space. Staff shall set aside space within each housing 
area for use by an inmate. The designated area shall include a locker or 
other securable area in which the inmate is to store authorized personal 
property. The inmate shall be allowed to purchase an approved locking 
device for personal property storage in regular living units. Staff may 
not allow an inmate to accumulate materials to the point where the 
materials become a fire, sanitation, security, or housekeeping hazard.
    (c) Clothing. Civilian clothing (i.e., clothing not issued to the 
inmate by the Bureau or purchased by the inmate from the commissary) 
ordinarily is not authorized for retention by the inmate. Civilian 
clothing which previously had been approved for retention may not be 
retained after August 6, 1999. Prerelease civilian clothing for an 
inmate may be retained by staff in the Receiving and Discharge area 
during the last 30 days of the inmate's confinement.
    (d) Legal materials. Staff may allow an inmate to possess legal 
materials in accordance with the provisions on inmate legal activities 
(see Sec. 543.11 of this chapter).
    (e) Hobbycraft materials. Staff shall limit an inmate's hobby shop 
projects within the cell or living area to those projects which the 
inmate may store in designated personal property containers. Staff may 
make an exception for an item (for example, a painting) where size would 
prohibit placing the item in a locker. This exception is made with the 
understanding that the placement of the item is at the inmate's own 
risk. Staff shall require that hobby shop items be removed from the 
living area when completed, and be disposed of in accordance with the 
provisions of part 544, subpart D, of this chapter.
    (f) Radios and Watches. An inmate may possess only one approved 
radio and one approved watch at a time. The inmate must be able to 
demonstrate proof of ownership. An inmate who purchases a radio or watch 
through a Bureau of Prisons commissary is ordinarily permitted the use 
of that radio or watch at any Bureau institution if the inmate is later 
transferred. If the inmate is not allowed to use the radio or watch at 
the new institution, the inmate shall be permitted to mail, at the 
receiving institution's expense, the radio or watch to a destination of 
the inmate's choice. Where the inmate refuses to provide a mailing 
address, the radio and/or watch may be disposed of through approved 
methods, including destruction of the property.
    (g) Education Program Materials. Education program materials or 
current correspondence courses may be retained even if not stored as 
provided in paragraph (b) of this section.
    (h) Personal Photos. An inmate may possess photographs, subject to 
the limitations of paragraph (b) of this section, so long as they are 
not detrimental to personal safety or security, or to the good order of 
the institution.

[64 FR 36753, July 7, 1999]



Sec. 553.12  Contraband.

    (a) Contraband is defined in Sec. 500.1(h) of this chapter. Items 
possessed by an inmate ordinarily are not considered to be contraband if 
the inmate was authorized to retain the item upon admission to the 
institution, the item was issued by authorized staff, purchased by the 
inmate from the commissary, or purchased or received through approved 
channels (to include approved for receipt by an authorized staff member 
or authorized by institution guidelines).
    (b) For the purposes of this subpart, there are two types of 
contraband.
    (1) Staff shall consider as hard contraband any item which poses a 
serious threat to the security of an institution and which ordinarily is 
not approved for possession by an inmate or for admission into the 
institution. Examples of hard contraband include weapons, intoxicants, 
and currency (where prohibited).
    (2) Staff shall consider as nuisance contraband any item other than 
hard contraband, which has never been authorized, or which may be, or 
which previously has been authorized for possession by an inmate, but 
whose possession is prohibited when it presents a threat to security or 
its condition or excessive quantities of it present a

[[Page 620]]

health, fire, or housekeeping hazard. Examples of nuisance contraband 
include: personal property no longer permitted for admission to the 
institution or permitted for sale in the commissary; altered personal 
property; excessive accumulation of commissary, newspapers, letters, or 
magazines which cannot be stored neatly and safely in the designated 
area; food items which are spoiled or retained beyond the point of safe 
consumption; government-issued items which have been altered, or other 
items made from government property without staff authorization.

[64 FR 36754, July 7, 1999]



Sec. 553.13  Procedures for handling contraband.

    (a) Staff shall seize any item in the institution which has been 
identified as contraband whether the item is found in the physical 
possession of an inmate, in an inmate's living quarters, or in common 
areas of the institution.
    (b) Staff shall dispose of items seized as contraband in accordance 
with the following procedures.
    (1) Staff shall return to the institution's issuing authority any 
item of government property seized as contraband, except where the item 
is needed as evidence for disciplinary action or criminal prosecution. 
In such cases, staff may retain the seized property as evidence.
    (2) Items of personal property confiscated by staff as contraband 
are to be inventoried and stored pending identification of the true 
owner (if in question) and possible disciplinary action. Following an 
inventory of the confiscated items, staff shall employ the following 
procedures.
    (i) Staff shall provide the inmate with a copy of the inventory as 
soon as practicable. A copy of this inventory shall also be placed in 
the inmate's central file.
    (ii) The inmate shall have seven days following receipt of the 
inventory to provide staff with evidence of ownership of the listed 
items. A claim of ownership may not be accepted for an item made from 
the unauthorized use of government property. Items obtained from another 
inmate (for example, through purchase, or as a gift) without staff 
authorization may be considered nuisance contraband for which a claim of 
ownership is ordinarily not accepted.
    (iii) If the inmate establishes ownership, but the item is 
identified as contraband, staff shall mail such items (other than hard 
contraband), at the inmate's expense, to a destination of the inmate's 
choice. The Warden or designee may authorize the institution to pay the 
cost of such mailings when the item had not been altered and originally 
had been permitted for admission to the institution or had been 
purchased from the commissary, or where the inmate has insufficient 
funds and no likelihood of new funds being received. Where the inmate 
has established ownership of a contraband item, but is unwilling, 
although financially able to pay postage as required, or refuses to 
provide a mailing address for return of the property, the property is to 
be disposed of through approved methods, including destruction of the 
property.
    (iv) If the inmate is unable to establish ownership, staff shall 
make reasonable efforts to identify the owner of the property before any 
decision to destroy the property is made.
    (v) Staff shall prepare and retain written documentation describing 
any items destroyed and the reasons for such action.
    (vi) Where disciplinary action is appropriate, staff shall delay 
disposition of property until completion of such action (including 
appeals).
    (c) Staff shall retain items of hard contraband for disciplinary 
action or prosecution or both. The contraband items may be delivered to 
law enforcement personnel for official use. When it is determined that 
the item is not needed for criminal prosecution, the hard contraband 
shall be destroyed as provided in paragraph (b)(2)(v) of this section. 
Written documentation of the destruction shall be maintained for at 
least two years.
    (d) Staff may not allow an inmate to possess funds in excess of 
established institutional limits. Staff shall deliver to the cashier any 
cash or negotiable instruments found in an inmate's possession which 
exceed the institution's allowable limits. Funds determined to

[[Page 621]]

be contraband shall be confiscated for crediting to the U.S. Treasury.
    (1) Where disciplinary action against the inmate is appropriate, 
staff shall delay final disposition of the funds until such action 
(including appeals) is completed.
    (2) Prior to a decision on the disposition of funds, staff shall 
allow the inmate a reasonable amount of time to prove ownership.

[48 FR 19573, Apr. 29, 1983, as amended by 64 FR 36754, July 7, 1999]



Sec. 553.14  Inmate transfer between institutions and inmate release.

    (a) Except as provided for in paragraphs (a)(1) through (3) of this 
section, authorized personal property shall be shipped by staff to the 
receiving institution.
    (1) The Warden ordinarily shall allow an inmate transferring to 
another institution to transport personal items determined necessary or 
appropriate by staff and, if applicable, legal materials for active 
court cases.
    (2) The Warden may require or allow an inmate who is transferring to 
another institution under furlough conditions to transport all the 
inmate's authorized personal property with him or her.
    (3) An inmate who is being released or who is transferring to a 
Community Corrections Center may arrange to ship personal property at 
the inmate's expense. The inmate is responsible for transporting any 
personal property not so shipped.
    (b) If the inmate's personal property is not authorized for 
retention by the receiving institution, staff at the receiving 
institution shall arrange for the inmate's excess personal property to 
be mailed to a non-Bureau destination of the inmate's choice. The inmate 
shall bear the expense for this mailing.
    (c) Whenever the inmate refuses to provide a mailing address for 
return of the property or, when required, refuses to bear the expense of 
mailing the property, the property is to be disposed of through approved 
methods, including destruction of the property.

[64 FR 36754, July 7, 1999]



Sec. 553.15  Limitations on personal property--medical transfers.

    The Warden shall set a limit on the amount of personal property that 
may accompany an inmate transferring to a medical facility. For purpose 
of this rule, a medical facility is one which provides observation and/
or treatment of a medical, surgical, or psychiatric nature, or any 
combination of these. Such medical transfers are ordinarily of a short-
term duration (30-120 days).
    (a) The Wardens of the sending and receiving institutions shall 
allow the inmate to retain those legal materials specifically needed in 
respect to on-going litigation. Questions as to the need for such 
material may be referred to Regional Counsel.
    (b) The Warden of the sending institution shall designate a secure 
location for storage of all inmate personal property not accompanying 
the inmate.
    (c) Personal property permitted in the sending institution, but not 
in the receiving institution, shall either be retained at the sending 
institution or be mailed to a destination of the inmate's choice.
    (1) If the inmate is expected to return to the sending institution 
within 120 days of transfer, staff shall advise the inmate that property 
not allowed in the medical facility may be held at the sending 
institution or sent to a destination of the inmate's choice (other than 
the medical facility), at the inmate's expense. Where lack of space 
prevents retention of the inmate's property at the sending institution, 
that institution shall pay postage costs connected with mailing the 
inmate's property to a destination of the inmate's choice. Where lack of 
space prevents the retention of the inmate's property at the sending 
institution, and the inmate refuses to provide a mailing address for 
return of the property, the property is to be disposed of through 
approved methods, including destruction of the property.
    (2) The inmate's property may be sent with the inmate to the medical 
facility when the inmate is not expected to return to the sending 
institution, will be at the medical facility over 120 days, or for any 
other justified reason. The Warden at the sending institution shall 
prepare and place in the inmate's

[[Page 622]]

central file written documentation for forwarding the inmate's personal 
property.
    (d) The Warden of the medical facility shall return an inmate's 
personal property ordinarily in the same or equivalent size container as 
originally used by the sending institution. Property accumulated over 
that amount, at the option of the inmate, will either be sent to a 
destination selected by the inmate, at the inmate's expense, donated, or 
destroyed. If the inmate is financially able but refuses to pay for the 
mailing, or if the inmate refuses to provide a mailing address for 
forwarding of the property, the property is to be disposed of through 
approved methods, including destruction of the property.

[[Page 623]]



              SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE





PART 570--COMMUNITY PROGRAMS--Table of Contents




Subparts A-B [Reserved]

                          Subpart C--Furloughs

Sec.
570.30  Purpose and scope.
570.31  Definitions.
570.32  Justification for furlough.
570.33  Expenses of furlough.
570.34  Eligibility requirements.
570.35  Limitations on eligibility.
570.36  Procedures.
570.37  Violation of furlough.

                        Subpart D--Escorted Trips

570.40  Purpose and scope.
570.41  Medical escorted trips.
570.42  Non-medical escorted trips.
570.43  Inmates requiring a high degree of control and supervision.
570.44  Supervision and restraint requirements.
570.45  Violation of escorted trip.

    Authority: 5 U.S.C. 301; 18 U.S.C. 751, 3621, 3622, 3624, 4001, 
4042, 4081, 4082 (Repealed in part as to offenses committed on or after 
November 1, 1987), 4161-4166, 5006-5024 (Repealed October 12, 1984 as to 
offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 
0.95-0.99.

Subparts A-B [Reserved]



                          Subpart C--Furloughs

    Source: 46 FR 34552, July 1, 1981, unless otherwise noted.



Sec. 570.30  Purpose and scope.

    The furlough program of the Bureau of Prisons is intended to help 
the inmate to attain correctional goals. A furlough is not a right, but 
a privilege granted an inmate under prescribed conditions. It is not a 
reward for good behavior, nor a means to shorten a criminal sentence.

[46 FR 34552, July 1, 1981, as amended at 59 FR 3510, Jan. 21, 1994]



Sec. 570.31  Definitions.

    (a) A furlough is an authorized absence from an institution by an 
inmate who is not under escort of a staff member, U.S. Marshal, or state 
or federal agents. The two types of furlough are:
    (1) Day furlough-- A furlough within the geographic limits of the 
commuting area of the institution (approximately a 100-mile radius), 
which lasts 16 hours or less and ends before midnight.
    (2) Overnight furlough-- A furlough which falls outside or beyond 
the criteria of a day furlough.
    (b) An anticipated release date, for purposes of this rule, refers 
to the first of the following dates which applies to an inmate 
requesting a furlough:
    (1) The inmate's mandatory (statutory) release date;
    (2) The inmate's minimum expiration date;
    (3) The inmate's presumptive parole date; or
    (4) The inmate's effective parole date.

[46 FR 34552, July 1, 1981, as amended at 48 FR 45051, Sept. 30, 1983; 
59 FR 3510, Jan. 21, 1994]



Sec. 570.32  Justification for furlough.

    (a) The authority to approve furloughs in Bureau of Prisons 
institutions is delegated to the Warden or Acting Warden. This authority 
may not be further delegated. An inmate may be authorized a furlough:
    (1) To be present during a crisis in the immediate family, or in 
other urgent situations;
    (2) To participate in the development of release plans;
    (3) To reestablish family and community ties;
    (4) To participate in selected educational, social, civic, 
religious, and recreational activities which will facilitate release 
transition;
    (5) To transfer directly to another institution or to a non-federal 
facility;
    (6) To appear in court in connection with a civil action;
    (7) To comply with an official request to appear before a grand 
jury, or to comply with a request from a legislative body or regulatory 
or licensing agency;

[[Page 624]]

    (8) To appear in a criminal court proceeding, but only when the use 
of a furlough is requested or recommended by the applicable court or 
prosecuting attorney; or
    (9) To participate in special training courses or in institution 
work assignments, including Federal Prison Industries (FPI) work 
assignments, of 30 calendar days or less, when daily commuting from the 
institution is not feasible.
    (b) The Warden may recommend a furlough for an inmate to obtain 
necessary medical, surgical, psychiatric, or dental treatment not 
otherwise available. In addition to the recommendation of the Warden, a 
furlough of this nature requires the recommendation of the Chief Medical 
Officer (Chief of Health Programs). Approval for a furlough of this type 
occurs in one of the following ways:
    (1) Staff shall contact the Regional Health Services Administrator 
for approval when the cost of medical care is at the expense of the 
government. In case of medical emergency, staff may authorize a furlough 
for hospitalization and shall notify the Regional Health Services 
Administrator as soon after the emergency admission as possible.
    (2) When medical care expenditures are borne by the inmate, or other 
non-governmental source, the furlough request requires the approval of 
the Medical Director and the Assistant Director, Correctional Programs 
Division.
    (c) The Warden may refer a request for a furlough in other 
situations through the Regional Director to the Assistant Director, 
Correctional Programs Division for approval.

[46 FR 34552, July 1, 1981, as amended at 48 FR 45051, Sept. 30, 1983; 
59 FR 3510, Jan. 21, 1994]



Sec. 570.33  Expenses of furlough.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
the inmate or the inmate's family or other appropriate source approved 
by the Warden shall bear all expenses of a furlough, including 
transportation, food, lodging, and incidentals.
    (b) The government may bear the expense of a furlough only when the 
purpose of the furlough is to obtain necessary medical, surgical, 
psychiatric, or dental treatment not otherwise available, or to transfer 
an inmate to another correctional institution (includes community 
corrections centers), or, if it is for the primary benefit of the 
government, to participate in special training courses or institutional 
work assignments (including FPI work assignments) as outlined in 
Sec. 570.32(a)(9).
    (c) The Warden may allow an inmate scheduled for transfer to a 
community corrections center (CCC) to choose the means of transportation 
to the CCC if all transportation costs are borne by the inmate. An 
inmate traveling under these provisions is expected to go directly as 
scheduled from the institution to the CCC.

[48 FR 45052, Sept. 30, 1983, as amended at 59 FR 3510, Jan. 21, 1994; 
59 FR 53937, Oct. 27, 1994]



Sec. 570.34  Eligibility requirements.

    (a) Except as provided in paragraph (b) of this section, the Warden 
may grant a furlough only to an inmate with community custody.
    (b) The Warden may grant a furlough to an inmate with ``out'' 
custody only when the furlough is for the purpose of transferring 
directly to another institution (except community corrections centers) 
or for obtaining local medical treatment not otherwise available at the 
institution.
    (c) The Warden may grant a furlough only to an inmate the Warden 
determines to be physically and mentally capable of completing the 
furlough.
    (d) The Warden may grant a furlough only to an inmate who has 
demonstrated sufficient responsibility to provide reasonable assurance 
that furlough requirements will be met.
    (e) The Warden shall determine the eligibility of an inmate for 
furlough in accord with the inmate's anticipated release date and the 
basis for the furlough request.
    (1) The Warden may approve only an emergency furlough (family crisis 
or other urgent situation) for an inmate who has been confined at the 
initially designated institution for less than 90 days.
    (2) The Warden may approve only an emergency furlough for an inmate 
with more than two years remaining until the inmate's anticipated 
release date.

[[Page 625]]

    (3) The Warden may approve a day furlough for an inmate with two 
years or less remaining until the inmate's anticipated release date.
    (4) The Warden may approve an overnight furlough within the 
institution's commuting area for an inmate with 18 months or less 
remaining until the inmate's anticipated release date.
    (5) The Warden may approve an overnight furlough outside the 
institution's commuting area for an inmate with one year or less 
remaining until the inmate's anticipated release date. The Warden may 
ordinarily approve an overnight furlough not to exceed once each 90 
days.
    (6) If the Warden approves a furlough outside the above guidelines, 
the Warden shall document the reasons in the inmates's central file.

[46 FR 34552, July 1, 1981, as amended at 48 FR 45052, Sept. 30, 1983; 
49 FR 8566, Mar. 7, 1984; 59 FR 3511, Jan. 21, 1994]



Sec. 570.35  Limitations on eligibility.

    (a) The Warden ordinarily may not grant a furlough to an inmate 
convicted of a serious crime against the person and/or whose presence in 
the community could attract undue public attention, create unusual 
concern, or depreciate the seriousness of the offense. If the Warden 
approves a furlough for such an inmate, the Warden must place a 
statement of the reasons for this action in the inmate's central file.
    (b) The Warden may approve a furlough for an inmate classified a 
central monitoring case upon compliance with the requirements of this 
rule and the requirements of part 524, subpart F.
    (c) Staff at a contract facility may approve a furlough for a 
sentenced inmate housed in the contract facility as specified in that 
facility's written agreement with the Bureau of Prisons.
    (d) The Bureau of Prisons does not have the authority to furlough 
U.S. Marshals prisoners in contract jails. Staff are to refer requests 
for such furloughs to the U.S. Marshals.
    (e) Furlough for pretrial inmates will be arranged in accordance 
with the rule on pretrial inmates (see part 551, subpart J).

[46 FR 34552, July 1, 1981, as amended at 48 FR 45052, Sept. 30, 1983]



Sec. 570.36  Procedures.

    (a) An inmate who meets the eligibility requirements of this rule 
may submit to staff an application for furlough.
    (b) Before approving the application, staff shall verify that a 
furlough is indicated.
    (c) Staff shall notify an inmate of the decision on the inmate's 
application for furlough. Where an application for furlough is denied, 
staff shall notify the inmate of the reasons for denial.
    (d) Each inmate who is approved for a furlough must agree to abide 
by the specified conditions (table 1) of the furlough.

                     Table 1--Conditions of Furlough

    1. I will not violate the laws of any jurisdiction (federal, state, 
or local). I understand that I am subject to prosecution for escape if I 
fail to return to the institution at the designated time.
    2. I will not leave the area of my furlough without permission, with 
the exception of traveling to the furlough destination, and returning to 
the institution.
    3. While on furlough status, I understand that I remain in the 
custody of the U.S. Attorney General. I agree to conduct myself in a 
manner not to bring discredit to myself or to the Bureau of Prisons. I 
understand that I am subject to arrest and/or institution disciplinary 
action for violating any conditions(s) of my furlough.
    4. I will not purchase, possess, use, consume, or administer any 
narcotic drugs, marijuana, intoxicants in any form, nor will I frequent 
any place where such articles are unlawfully sold, dispensed, used, or 
given away.
    5. I will not use any medication that is not prescribed and given to 
me by the institution medical department for use or prescribed by a 
licensed physician while I am on furlough. I will not have any medical/
dental/surgical/psychiatric treatment without the written permission of 
staff, except where an emergency arises and necessitates such treatment. 
I will notify institution staff of any prescribed medication or 
treatment received in the community upon my return to the institution.
    6. I will not have in my possession any firearm or other dangerous 
weapon.
    7. I will not get married, sign any legal papers, contracts, loan 
applications, or conduct any business without the written permission of 
staff.
    8. I will not associate with persons having a criminal record or 
with those persons who I know are engaged in illegal occupations.

[[Page 626]]

    9. I agree to contact the institution (or United States Probation 
Officer) in the event of arrest, or any other serious difficulty or 
illness.
    10. I will not drive a motor vehicle without the written permission 
of staff. I understand that I must have a valid driver's license and 
sufficient insurance to meet any applicable financial responsibility 
laws.
    11. I will not return from furlough with any article I did not take 
out with me (for example, clothing, jewelry, or books). I understand 
that I may be thoroughly searched and given a urinalysis and/or 
breathalyzer and/or other comparable test upon my return to the 
institution. I understand that I will be held accountable for the 
results of the search and tests(s).
    12. Special Instructions:
    I have read, or had read to me, and I understand the above 
conditions concerning my furlough and agree to abide by them.
 Inmate's Signature_____________________________________________________
 Reg. No________________________________________________________________
 Date___________________________________________________________________
________________________________________________________________________
Signature/Printed Name of Staff Witness

    (e) Upon completion of an inmate's furlough, staff shall record in 
the inmate's central file anything unusual which occurred during the 
furlough.

[46 FR 34552, July 1, 1981, as amended at 48 FR 45052, Sept. 30, 1983]



Sec. 570.37  Violation of furlough.

    An inmate who absconds from furlough or fails to meet any of the 
conditions of the furlough is deemed to be an escapee under 18 U.S.C. 
4082, 751.
    (a) Staff shall process as an escapee an inmate who absconds from 
furlough.
    (b) Staff may take disciplinary action against an inmate who fails 
to comply with any of the conditions of the furlough.

[48 FR 45052, Sept. 30, 1983]



                        Subpart D--Escorted Trips

    Source: 50 FR 48366, Nov. 22, 1985, unless otherwise noted.



Sec. 570.40  Purpose and scope.

    The Bureau of Prisons provides approved inmates with staff-escorted 
trips into the community for such purposes as receiving medical 
treatment not otherwise available, for visiting a critically-ill member 
of the inmate's immediate family, or for participating in program or 
work-related functions.



Sec. 570.41  Medical escorted trips.

    (a) Medical escorted trips are intended to provide an inmate with 
medical treatment not available within the institution. There are two 
types of medical escorted trips.
    (1) Emergency medical escorted trip. An escorted trip occurring as 
the result of an unexpected life-threatening medical situation requiring 
immediate medical treatment not available at the institution. The 
required treatment may be on either an in-patient or out-patient basis.
    (2) Non-emergency medical escorted trip. A pre-planned escorted trip 
for the purpose of providing an inmate with medical treatment ordinarily 
not available at the institution. The required treatment may be on 
either an in-patient or out-patient basis.
    (b) The Clinical Director or designee is responsible for determining 
whether a medical escorted trip is appropriate.
    (c) Escorted trip procedures--out-patient medical treatment. A 
recommendation for an inmate to receive a medical escorted trip is 
prepared by medical staff, forwarded through the appropriate staff for 
screening and clearance, and then submitted to the Warden for review. 
The Warden may approve an inmate for an out-patient medical escorted 
trip.
    (d) Escorted trip procedures--in-patient medical treatment. A 
recommendation for an inmate to receive a medical escorted trip is 
prepared by medical staff, forwarded through the appropriate staff for 
screening and clearance, and then submitted to the Warden. The Warden 
may approve an inmate for an in-patient medical escorted trip.

[50 FR 48366, Nov. 22, 1985, as amended at 57 FR 21158, May 18, 1992]



Sec. 570.42  Non-medical escorted trips.

    (a) Non-medical escorted trips allow an inmate to leave the 
institution under staff escort for approved, non-medical reasons. There 
are two types of non-medical escorted trips.
    (1) Emergency non-medical escorted trip. An escorted trip for such 
purposes as allowing an inmate to attend the funeral of, or to make a 
bedside visit to, a member of an inmate's immediate

[[Page 627]]

family. For purposes of this rule, immediate family refers to mother, 
father, brother, sister, spouse, children, step-parents, and foster 
parents.
    (2) Non-emergency, non-medical escorted trip. An escorted trip for 
such purposes as allowing inmates to participate in program-related 
functions, such an educational or religious activities, or in work-
related functions.
    (b) Escorted trip procedures--emergency non-medical reasons. Unit 
staff are to investigate, and determine, the merits of an escorted trip 
following a review of the available information. This includes 
contacting those persons (e.g., attending physician, hospital staff, 
funeral home staff, family members, U.S. Probation Officer) who can 
contribute to a determination on whether an escorted trip should be 
approved.
    (1) The government assumes the salary expenses of escort staff for 
the first eight hours of each day. All other expenses, including 
transportation costs, are assumed by the inmate, the inmate's family, or 
other appropriate source approved by the Warden. The necessary funds 
must be deposited to the inmate's trust fund account prior to the trip. 
Funds paid by the inmate for purposes of the escorted trip are then 
drawn, payable to the Treasury of the United States. Unexpended funds 
are returned to the inmate's trust fund account following the completion 
of the trip.
    (2) A request for an inmate to receive an emergency non-medical 
escorted trip is prepared by unit staff, forwarded through the 
appropriate staff for screening and clearance, and then submitted to the 
Warden. Except as specified in Sec. 570.43, the Warden may approve an 
inmate for an emergency non-medical escorted trip.
    (c) Escorted trip procedures--non-emergency, non-medical reasons. 
This type of escorted trip is considered for an inmate who has been at 
the institution for at least 90 days, and who is considered eligible for 
less secure housing and for work details, under minimal supervision, 
outside the institution's perimeter. A recommendation for an inmate to 
receive an escorted trip for non-emergency, non-medical reasons is 
prepared by the recommending staff, forwarded through the appropriate 
staff for screening and clearance, and then submitted to the Warden. 
Except as specified in Sec. 570.43, the Warden may approve an inmate for 
a non-emergency, non-medical escorted trip.



Sec. 570.43  Inmates requiring a high degree of control and supervision.

    Only the Regional Director may approve a non-medical escorted trip 
(either emergency or non-emergency) for an inmate determined to require 
a high degree of control and supervision.



Sec. 570.44  Supervision and restraint requirements.

    Inmates under escort will be within the constant and immediate 
visual supervision of escorting staff at all times. Restraints may be 
applied to an inmate going on an escorted trip, after considering the 
purpose of the escorted trip and the degree of supervision required by 
the inmate. Except for escorted trips for a medical emergency, an inmate 
going on an escorted trip must agree in writing to the conditions of the 
escorted trip (for example, agrees not to consume alcohol).



Sec. 570.45  Violation of escorted trip.

    (a) Staff shall process as an escapee an inmate who absconds from an 
escorted trip.
    (b) Staff may take disciplinary action against an inmate who fails 
to comply with any of the conditions of the escorted trip.



PART 571--RELEASE FROM CUSTODY--Table of Contents




 Subpart A [Reserved]

                 Subpart B--Release Preparation Program

Sec.
571.10  Purpose and scope.
571.11  Program responsibility.
571.12  General characteristics.
571.13  Institution release preparation program.

       Subpart C--Release Gratuities, Transportation, and Clothing

571.20  Purpose and scope.
571.21  Procedures.
571.22  Release clothing and transportation.

[[Page 628]]

    Subpart D--Release of Inmates Prior to a Weekend or Legal Holiday

571.30  Purpose and scope.

             Subpart E--Petition for Commutation of Sentence

571.40  Purpose and scope.
571.41  Procedures.

                       Subpart F--Fines and Costs

571.50  Purpose and scope.
571.51  Definitions.
571.52  Procedures--committed fines.
571.53  Determination of indigency by U.S. Magistrate--inmates in 
          federal institutions.
571.54  Determination of indigency by U.S. Magistrate Judge--inmates in 
          contract community-based facilities or state institutions.

 Subpart G--Compassionate Release (Procedures for the Implementation of 
                  18 U.S.C. 3582(c)(1)(A) and 4205(g))

571.60  Purpose and scope.
571.61  Initiation of request--extraordinary or compelling 
          circumstances.
571.62  Approval of request.
571.63  Denial of request.
571.64  Ineligible offenders.

  Subpart H--Designation of Offenses for Purposes of 18 U.S.C. 4042(c)

571.71  Purpose and scope.
571.72  Additional designated offenses.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3565, 3568-3569 (Repealed in part 
as to offenses committed on or after November 1, 1987), 3582, 3621, 
3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 4161-4166 and 4201-4218 
(Repealed as to offenses committed on or after November 1, 1987), 5006-
5024 (Repealed October 12, 1984, as to offenses committed after that 
date), 5031-5042; 28 U.S.C. 509, 510; U.S. Const., Art. II, Sec. 2; 28 
CFR 0.95-0.99, 1.1-1.10.

    Effective Date Note: At 68 FR 34300, June 9, 2003, the authority 
citation for part 571 was revised, effective July 9, 2003. For the 
convenience of the user, the revised text follows:
    Authority: 5 U.S.C. 301; 18 U.S.C. 3565; 3568-3569 (Repealed in part 
as to offenses committed on or after November 1, 1987), 3582, 3621, 
3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses 
committed on or after November 1, 1987), 4161-4166 and 4201-4218 
(Repealed as to offenses committed on or after November 1, 1987), 5006-
5024 (Repealed October 12, 1984, as to offenses committed after that 
date), 5031-5042; 28 U.S.C. 509, 510; U.S. Const., Art. II, Sec. 2; 28 
CFR 1.1-1.10.

    Source: 44 FR 38254, June 29, 1979, unless otherwise noted.

 Subpart A [Reserved]



                 Subpart B--Release Preparation Program

    Source: 59 FR 35456, July 11, 1994, unless otherwise noted.



Sec. 571.10  Purpose and scope.

    The Bureau of Prisons recognizes that an inmate's preparation for 
release begins at initial commitment and continues throughout 
incarceration and until final release to the community. This subpart 
establishes a standardized release preparation program for all sentenced 
inmates reintegrating into the community from Bureau facilities. 
Exception to this subpart may be made by the Warden of a Bureau facility 
which has been designated as an administrative maximum security 
institution.

[61 FR 38043, July 22, 1996]



Sec. 571.11  Program responsibility.

    The Warden shall designate to a staff member the responsibility to:
    (a) Determine the general release needs of the inmate population;
    (b) Coordinate the institution release preparation program;
    (c) Chair the Release Preparation Program Committee;
    (d) Contact and schedule volunteers from the local community to 
participate in the release preparation program.



Sec. 571.12  General characteristics.

    (a) Staff shall structure the release preparation program to make 
extensive use of staff, inmate, and community resources.
    (b) Staff shall strongly encourage and support an inmate's 
participation in the institution release preparation program. Staff 
shall document the inmate's participation in the program in the inmate's 
central file.

[[Page 629]]



Sec. 571.13  Institution release preparation program.

    (a) The institution release preparation program shall be 
administered by the Release Preparation Program Committee.
    (b) The institution release preparation program will be based on a 
core curriculum of topics/courses organized into six broad categories. 
The six categories are:
    (1) Health and nutrition.
    (2) Employment.
    (3) Personal finance/consumer skills.
    (4) Information/community resources.
    (5) Release requirements and procedures.
    (6) Personal growth and development.
    (c) To assist in the release process, the Warden may, in accordance 
with the Bureau of Prisons' rule on furloughs, grant an inmate a 
furlough for release preparation purposes.
    (d) Staff shall help an inmate obtain proper identification (social 
security card, driver's license, birth certificate, and/or any other 
documents needed by the inmate) prior to release.
    (e) An inmate who is not being released through a Community 
Corrections Center (CCC) may ask staff to request the assistance of a 
United States Probation Officer in establishing a release plan. Bureau 
staff are to encourage the inmate to give at least one employment lead 
or contact. Where the inmate or the inmate's family has already 
identified employment, the case manager shall notify the United States 
Probation Officer so that the usual verification of release plans may be 
made. Where employment has not been identified, the case manager shall 
notify the United States Probation Officer of the employment need. This 
notification should ordinarily occur at least six weeks prior to the 
inmate's release.



       Subpart C--Release Gratuities, Transportation, and Clothing

    Source: 56 FR 23480, May 21, 1991, unless otherwise noted.



Sec. 571.20  Purpose and scope.

    It is the policy of the Bureau of Prisons that an inmate being 
released to the community will have suitable clothing, transportation to 
the inmate's release destination, and some funds to use until he or she 
begins to receive income. Based on the inmate's need and financial 
resources, a discretionary gratuity up to the amount permitted by 
statute may be granted.

[61 FR 47795, Sept. 10, 1996]



Sec. 571.21  Procedures.

    (a) An inmate is eligible for a gratuity as determined by the 
availability of personal and community resources. Greater consideration 
may be given to an inmate without funds or community resources.
    (b) A federal prisoner boarded in a non-federal facility is eligible 
for a release gratuity. The director of the non-federal facility housing 
federal inmates or the community corrections manager shall determine the 
amount of release gratuity in accordance with the purpose and scope of 
this regulation for federal inmates housed in non-federal facilities.
    (c) An inmate who is without personal funds may receive a gratuity 
when transferred to a community corrections center. The amount shall 
enable the inmate to care for needs in transit and allow for the 
purchase of necessary personal items upon arrival.
    (d) Staff shall provide the inmate released to a detainer with 
information on how to apply for a gratuity if released prior to 
expiration of the federal sentence.
    (e) Staff shall ensure that each alien released to immigration 
authorities has $10 cash. This provision does not apply to aliens 
serving 60 days or less in contract facilities.

    Effective Date Note: At 68 FR 34300, June 9, 2003, Sec. 571.21 was 
amended by revising paragraph (e), effective July 9, 2003. For the 
convenience of the user, the revised text follows:

Sec. 571.21  Procedures.

                                * * * * *

    (e) Staff will ensure that each alien released to immigration 
authorities for the

[[Page 630]]

purpose of release or transfer to a community corrections center has $10 
cash. This provision does not apply to aliens being released for the 
purpose of deportation, exclusion, or removal, or to aliens detained or 
serving 60 days or less in contract facilities.



Sec. 571.22  Release clothing and transportation.

    (a) Staff shall provide release clothing appropriate for the time of 
year and the inmate's geographical destination. Upon request, work 
clothing will be provided. Nonavailability of work clothing may limit 
this practice.
    (b) Inmates transferring to a community corrections center will be 
provided adequate clothing to complete a job search and perform work. 
Additionally, an outer garment, seasonably suited for the geographical 
destination will be provided.
    (c) Transportation will be provided to an inmate's place of 
conviction or to his/her legal residence within the United States or its 
territories.

[56 FR 23480, May 21, 1991, as amended at 68 FR 34302, June 9, 2003]



    Subpart D--Release of Inmates Prior to a Weekend or Legal Holiday



Sec. 571.30  Purpose and scope.

    The Bureau of Prisons may release an inmate whose release date falls 
on a Saturday, Sunday, or legal holiday, on the last preceding weekday 
unless it is necessary to detain the inmate for another jurisdiction 
seeking custody under a detainer, or for any other reason which might 
indicate that the inmate should not be released until the inmate's 
scheduled release date.
    (a) The release authority for inmates convicted of offenses 
occurring prior to November 1, 1987 is pursuant to 18 U.S.C. 4163. The 
number of days used under 18 U.S.C. 4163 may not be added to the number 
of days remaining to be served to release an inmate ``as if * * * on 
parole'' (18 U.S.C. 4164) who would otherwise have been released by 
expiration of sentence.
    (b) The release authority for inmates sentenced under the provisions 
of the Sentencing Reform Act of the Comprehensive Crime Control Act of 
1984 for offenses committed on/or after November 1, 1987 is pursuant to 
18 U.S.C. 3624(a).

[54 FR 49070, Nov. 28, 1989]



             Subpart E--Petition for Commutation of Sentence



Sec. 571.40  Purpose and scope.

    An inmate may file a petition for commutation of sentence in 
accordance with the provisions of 28 CFR part 1.
    (a) An inmate may request from the inmate's case manager the 
appropriate forms (and instructions) for filing a petition for 
commutation of sentence.
    (b) When specifically requested by the U.S. Pardon Attorney, the 
Director, Bureau of Prisons will forward a recommendation on the 
inmate's petition for commutation of sentence.

[47 FR 9756, Mar. 5, 1982]



Sec. 571.41  Procedures.

    (a) Staff shall suggest that an inmate who wishes to submit a 
petition for commutation of sentence do so through the Warden to the 
U.S. Pardon Attorney. This procedure allows institution staff to forward 
with the application the necessary supplemental information (for 
example, sentencing information, presentence report, progress report, 
pertinent medical records if the petition involves the inmate's health, 
etc.). Except as provided in paragraph (b) of this section, no Bureau of 
Prisons recommendation is to be forwarded with the package of material 
submitted to the U.S. Pardon Attorney.
    (b) When specifically requested by the U.S. Pardon Attorney, the 
Director, Bureau of Prisons shall submit a recommendation on the 
petition. Prior to making a recommendation, the Director may request 
comments from the Warden at the institution where the inmate is 
confined. Upon review of those comments, the Director will forward a 
recommendation on the petition to the U.S. Pardon Attorney.
    (c) When a petition for commutation of sentence is granted by the 
President of the United States, the U.S. Pardon Attorney will forward 
the original of the signed and sealed warrant of clemency evidencing the 
President's action

[[Page 631]]

to the Warden at the detaining institution, with a copy to the Director, 
Bureau of Prisons. The Warden shall deliver the original warrant to the 
affected inmate, and obtain a signed receipt for return to the U.S. 
Pardon Attorney. The Warden shall take such action as is indicated in 
the warrant of clemency.
    (1) If a petition for commutation of sentence is granted, 
institutional staff shall recalculate the inmate's sentence in 
accordance with the terms of the commutation order.
    (2) If the commutation grants parole eligibility, the inmate is to 
be placed on the appropriate parole docket.
    (d) When a petition for commutation of sentence is denied, the U.S. 
Pardon Attorney ordinarily notifies the Warden, requesting that the 
Warden notify the inmate of the denial.

[47 FR 9756, Mar. 5, 1982, as amended at 57 FR 34663, Aug. 5, 1992]



                       Subpart F--Fines and Costs

    Source: 48 FR 48971, Oct. 21, 1983, unless otherwise noted.



Sec. 571.50  Purpose and scope.

    This subpart establishes procedures for processing a fine, or fine 
and costs ordered by the court with respect to an inmate convicted of an 
offense committed before November 1, 1987. When the court orders a 
prisoner's confinement until payment of a fine, or fine and costs under 
18 U.S.C. 3565, the Bureau of Prisons shall confine that inmate until 
the fine, or fine and costs are paid, unless the inmate qualifies for 
release under 18 U.S.C. 3569.
    (a) An inmate held on the sole basis of his/her inability to pay 
such fine, or fine and costs, and whose non-exempt property does not 
exceed $20.00 may request discharge from imprisonment on the basis of 
indigency (see 18 U.S.C. 3569).
    (b) Under 18 U.S.C. 3569, the determination of indigency may be made 
by a U.S. Magistrate Judge. Where the U.S. Magistrate Judge makes a 
finding of non-indigency based on the inmate's application for a 
determination of his ability to pay the committed fine, or fine and 
costs, staff shall refer the application to the appropriate United 
States Attorney for the purpose of making a final decision on the 
inmate's discharge under 18 U.S.C. 3569. It is to be noted that 18 
U.S.C. 3569 provides for confining an inmate for nonpayment of a 
committed fine, or fine and costs.

[63 FR 4357, Jan. 28, 1998]



Sec. 571.51  Definitions.

    (a) Fine-- a monetary penalty associated with an offense imposed as 
part of a judgment and commitment. There are two types of fines.
    (1) Committed fine-- a monetary penalty imposed with a condition of 
imprisonment until the fine is paid.
    (2) Non-committed fine-- a monetary penalty which has no condition 
of confinement imposed.
    (b) Costs--Monetary costs of the legal proceeding which the court 
may levy. Imposition of costs is similar in legal effect to imposition 
of a fine. The court may also impose costs with a condition of 
imprisonment.

[48 FR 48971, Oct. 21, 1983, as amended at 63 FR 4357, Jan. 28, 1998]



Sec. 571.52  Procedures--committed fines.

    (a)(1) Promptly after the inmate's commitment, staff shall inform 
the inmate that there is a committed fine, or fine and costs on file, as 
part of the sentence. Staff shall then impound the inmate's trust fund 
account until the fine, or fine and costs is paid, except--
    (i) The inmate may spend money from his/her trust fund account for 
the purchase of commissary items not exceeding the maximum monthly 
allowance authorized for such purchases.
    (ii) Staff may authorize the inmate to make withdrawals from his/her 
trust fund account for emergency family, emergency personal needs or 
furlough purposes.
    (2) This rule of impounding an inmate's trust fund account applies 
only when the inmate is confined in a federal institution. It does not 
apply to a federal inmate confined in a state institution or a contract 
community-based facility.
    (b) If the inmate pays the committed fine, or fine and costs, or 
staff have verified payment, staff shall document

[[Page 632]]

payment in the appropriate file and release the inmate's trust fund 
account from impoundment.
    (c) Staff shall interview the inmate with an unpaid committed fine 
at least 75 days prior to the inmate's release date. Staff shall explain 
to the inmate that to secure release without paying the committed fine, 
or fine and costs in full, the inmate must make an application, on the 
appropriate form, to the U.S. Magistrate Judge for determination as to 
whether the inmate can be declared indigent under 18 U.S.C. 3569.

[63 FR 4357, Jan. 28, 1998]



Sec. 571.53  Determination of indigency by U.S. Magistrate--inmates in federal institutions.

    (a) An inmate with a committed fine, or fine and costs who is 
imprisoned in a federal institution may make application for a 
determination of indigency directly to the U.S. Magistrate Judge in the 
district where the inmate is imprisoned under 18 U.S.C. 3569.
    (b) After completion of the application, staff shall offer to 
forward the completed forms and any other applicable information the 
inmate chooses to the U.S. Magistrate Judge.
    (c) If the U.S. Magistrate Judge finds that the inmate is indigent, 
the U.S. Magistrate Judge will administer the oath to the inmate. The 
inmate shall be released no earlier than the regularly established 
release date.
    (d) If the U.S. Magistrate Judge finds that the inmate is not 
indigent, Bureau staff shall forward a referral package to the 
appropriate United States Attorney for a final determination as to the 
inmate's ability to pay the committed fine, or fine and costs.

[63 FR 4357, Jan. 28, 1998]



Sec. 571.54  Determination of indigency by U.S. Magistrate Judge--inmates in contract community-based facilities or state institutions.

    (a) Inmates with a committed fine, or fine and costs may be 
transferred to contract community-based facilities, state institutions 
as boarders, or state institutions for service of federal sentences 
running concurrently with state sentences.
    (b) Inmates with a committed fine, or fine and costs may be 
committed directly to contract community-based facilities or state 
institutions as boarders or may be designated to state institutions for 
service of federal sentences running concurrently with state sentences.
    (c) An inmate with a committed fine, or fine and costs who is 
imprisoned in a contract community-based facility or state institution 
and desires to make application for a determination of ability to pay 
the committed fine, or fine and costs under 18 U.S.C. 3569 may make 
application directly to the U.S. Magistrate Judge.
    (d) Upon receipt of a finding by the U.S. Magistrate Judge that the 
inmate is not indigent, Bureau staff shall forward a referral package to 
the appropriate United States Attorney for a final determination as to 
the inmate's ability to pay the committed fine, or fine and costs.

[63 FR 4357, Jan. 28, 1998]



 Subpart G--Compassionate Release (Procedures for the Implementation of 
                  18 U.S.C. 3582(c)(1)(A) and 4205(g))

    Source: 59 FR 1238, Jan. 7, 1994, unless otherwise noted.



Sec. 571.60  Purpose and scope.

    Under 18 U.S.C. 4205(g), a sentencing court, on motion of the Bureau 
of Prisons, may make an inmate with a minimum term sentence immediately 
eligible for parole by reducing the minimum term of the sentence to time 
served. Under 18 U.S.C. 3582(c)(1)(A), a sentencing court, on motion of 
the Director of the Bureau of Prisons, may reduce the term of 
imprisonment of an inmate sentenced under the Comprehensive Crime 
Control Act of 1984. The Bureau uses 18 U.S.C. 4205(g) and 18 U.S.C. 
3582(c)(1)(A) in particularly extraordinary or compelling circumstances 
which could not reasonably have been foreseen by the court at the time 
of sentencing.



Sec. 571.61  Initiation of request--extraordinary or compelling circumstances.

    (a) A request for a motion under 18 U.S.C. 4205(g) or 3582(c)(1)(A) 
shall be

[[Page 633]]

submitted to the Warden. Ordinarily, the request shall be in writing, 
and submitted by the inmate. An inmate may initiate a request for 
consideration under 18 U.S.C. 4205(g) or 3582(c)(1)(A) only when there 
are particularly extraordinary or compelling circumstances which could 
not reasonably have been foreseen by the court at the time of 
sentencing. The inmate's request shall at a minimum contain the 
following information:
    (1) The extraordinary or compelling circumstances that the inmate 
believes warrant consideration.
    (2) Proposed release plans, including where the inmate will reside, 
how the inmate will support himself/herself, and, if the basis for the 
request involves the inmate's health, information on where the inmate 
will receive medical treatment, and how the inmate will pay for such 
treatment.
    (b) The Bureau of Prisons processes a request made by another person 
on behalf of an inmate in the same manner as an inmate's request. Staff 
shall refer a request received at the Central Office or at a Regional 
Office to the Warden of the institution where the inmate is confined.



Sec. 571.62  Approval of request.

    (a) The Bureau of Prisons makes a motion under 18 U.S.C. 4205(g) or 
3582(c)(1)(A) only after review of the request by the Warden, the 
Regional Director, the General Counsel, and either the Medical Director 
for medical referrals or the Assistant Director, Correctional Programs 
Division for non-medical referrals, and with the approval of the 
Director, Bureau of Prisons.
    (1) The Warden shall promptly review a request for consideration 
under 18 U.S.C. 4205(g) or 3582(c)(1)(A). If the Warden, upon an 
investigation of the request determines that the request warrants 
approval, the Warden shall refer the matter in writing with 
recommendation to the Regional Director.
    (2) If the Regional Director determines that the request warrants 
approval, the Regional Director shall prepare a written recommendation 
and refer the matter to the Office of General Counsel.
    (3) If the General Counsel determines that the request warrants 
approval, the General Counsel shall solicit the opinion of either the 
Medical Director or the Assistant Director, Correctional Programs 
Division depending upon the nature of the basis of the request. With 
this opinion, the General Counsel shall forward the entire matter to the 
Director, Bureau of Prisons, for final decision.
    (4) If the Director, Bureau of Prisons, grants a request under 18 
U.S.C. 4205(g), the Director will contact the U.S. Attorney in the 
district in which the inmate was sentenced regarding moving the 
sentencing court on behalf of the Bureau of Prisons to reduce the 
minimum term of the inmate's sentence to time served. If the Director, 
Bureau of Prisons, grants a request under 18 U.S.C. 3582(c)(1)(A), the 
Director will contact the U.S. Attorney in the district in which the 
inmate was sentenced regarding moving the sentencing court on behalf of 
the Director of the Bureau of Prisons to reduce the inmate's term of 
imprisonment to time served.
    (b) Upon receipt of notice that the sentencing court has entered an 
order granting the motion under 18 U.S.C. 4205(g), the Warden of the 
institution where the inmate is confined shall schedule the inmate for 
hearing on the earliest Parole Commission docket. Upon receipt of notice 
that the sentencing court has entered an order granting the motion under 
18 U.S.C. 3582(c)(1)(A), the Warden of the institution where the inmate 
is confined shall release the inmate forthwith.
    (c) In the event the basis of the request is the medical condition 
of the inmate, staff shall expedite the request at all levels.



Sec. 571.63  Denial of request.

    (a) When an inmate's request is denied by the Warden or Regional 
Director, the disapproving official shall provide the inmate with a 
written notice and statement of reasons for the denial. The inmate may 
appeal the denial through the Administrative Remedy Procedure (28 CFR 
part 542, subpart B).
    (b) When an inmate's request for consideration under 18 U.S.C. 
4205(g) or 3582(c)(1)(A) is denied by the General Counsel, the General 
Counsel shall provide the inmate with a written notice

[[Page 634]]

and statement of reasons for the denial. This denial constitutes a final 
administrative decision.
    (c) When the Director, Bureau of Prisons, denies an inmate's 
request, the Director shall provide the inmate with a written notice and 
statement of reasons for the denial within 20 workdays after receipt of 
the referral from the Office of General Counsel. A denial by the 
Director constitutes a final administrative decision.
    (d) Because a denial by the General Counsel or Director, Bureau of 
Prisons, constitutes a final administrative decision, an inmate may not 
appeal the denial through the Administrative Remedy Procedure.



Sec. 571.64  Ineligible offenders.

    The Bureau of Prisons has no authority to initiate a request under 
18 U.S.C. 4205(g) or 3582(c)(1)(A) on behalf of state prisoners housed 
in Bureau of Prisons facilities or D.C. Code offenders confined in 
federal institutions. The Bureau of Prisons cannot initiate such a 
motion on behalf of federal offenders who committed their offenses prior 
to November 1, 1987, and received non-parolable sentences.



  Subpart H--Designation of Offenses for Purposes of 18 U.S.C. 4042(c)

    Source: 63 FR 69387, Dec. 16, 1998, unless otherwise noted.



Sec. 571.71  Purpose and scope.

    The Director of the Bureau of Prisons is required to provide release 
and registration information (offender's name, criminal history, 
projected address, release conditions or restrictions) to state/local 
law enforcement and registration officials at least five calendar days 
prior to release of offenders who have been convicted of certain sexual 
offenses listed in 18 U.S.C. 4042(c)(4)(A) through (D). Under 18 U.S.C. 
4042(c)(4)(E), the Attorney General is authorized to designate 
additional offenses as sexual offenses for the purpose of sex offender 
release notification and other related purposes. This authority has been 
delegated to the Director.



Sec. 571.72  Additional designated offenses.

    The following offenses are designated as additional sexual offenses 
for purposes of 18 U.S.C. 4042(c):
    (a) Any offense under the law of any jurisdiction that involved:
    (1) Engaging in sexual contact with another person without obtaining 
permission to do so (forcible rape, sexual assault, or sexual battery);
    (2) Possession, distribution, mailing, production, or receipt of 
child pornography or related paraphernalia;
    (3) Any sexual contact with a minor or other person physically or 
mentally incapable of granting consent (indecent liberties with a minor, 
statutory rape, sexual abuse of the mentally ill, rape by administering 
a drug or substance);
    (4) Any sexual act or contact not identified in paragraphs (a)(1) 
through (3) of this section that is aggressive or abusive in nature 
(rape by instrument, encouraging use of a minor for prostitution 
purposes, incest);
    (5) An attempt to commit any of the actions described in paragraphs 
(a)(1) through (4) of this section.
    (b) The following Defense Incident Based Reporting System (DIBRS) 
Code offenses under the Uniform Code of Military Justice:
    (1) 120A (Rape);
    (2) 120B1/2 (Carnal knowledge);
    (3) 125A (Forcible sodomy);
    (4) 125B1/2 (Sodomy of a minor);
    (5) 133D (Conduct unbecoming an Officer [involving any sexually 
violent offense or a criminal offense of a sexual nature against a minor 
or kidnaping of a minor]);
    (6) 134-B6 (Prostitution involving a minor);
    (7) 134-C1 (Indecent assault);
    (8) 134-C4 (Assault with intent to commit rape);
    (9) 134-C6 (Assault with intent to commit sodomy);
    (10) 134-R1 (Indecent act with a minor);
    (11) 134-R3 (Indecent language to a minor);
    (12) 134-S1 (Kidnaping of a minor (by a person not a parent));
    (13) 134-Z (Pornography involving a minor);
    (14) 134-Z (Conduct prejudicial to good order and discipline 
(involving

[[Page 635]]

any sexually violent offense or a criminal offense of a sexual nature 
against a minor or kidnaping of a minor));
    (15) 134-Y2 (Assimilative crime conviction (of a sexually violent 
offense or a criminal offense of a sexual nature against a minor or 
kidnaping of a minor)).
    (16) 080-A (Attempt (to commit any offense listed in paragraphs 
(b)(1)--(15) of this section));
    (17) 081-A (Conspiracy (to commit any offense listed in paragraphs 
(b)(1)--(15) of this section));
    (18) 082-A (Solicitation (to commit any offense listed in paragraphs 
(b)(1)--(15) of this section)).
    (c) The following District of Columbia Code offenses:
    (1) Sec. 22-501 (Assault) if it includes assault with the intent to 
commit first degree sexual abuse, second degree sexual abuse, or child 
sexual abuse;
    (2) Sec. 22-2012 (Sexual performances using minors--prohibited 
acts);
    (3) Sec. 22-2013 (Sexual performances using minors--penalties);
    (4) Sec. 22-2101 (Kidnaping) where the victim is a minor;
    (5) Sec. 22-2401 (Murder in the first degree) if it includes murder 
while committing or attempting to commit first degree sexual abuse;
    (6) Sec. 22-2704 (Abducting or enticing child from his or her home 
for purposes of prostitution; harboring such child);
    (7) Sec. 22-4102 (First degree sexual abuse);
    (8) Sec. 22-4103 (Second degree sexual abuse);
    (9) Sec. 22-4104 (Third degree sexual abuse);
    (10) Sec. 22-4105 (Fourth degree sexual abuse);
    (11) Sec. 22-4106 (Misdemeanor sexual abuse);
    (12) Sec. 22-4108 (First degree child sexual abuse);
    (13) Sec. 22-4109 (Second degree child sexual abuse);
    (14) Sec. 22-4110 (Enticing a child);
    (15) Sec. 22-4113 (First degree sexual abuse of a ward);
    (16) Sec. 22-4114 (Second degree sexual abuse of a ward);
    (17) Sec. 22-4115 (First degree sexual abuse of a patient or 
client);
    (18) Sec. 22-4116 (Second degree sexual abuse of a patient or 
client);
    (19) Sec. 22-4118 (Attempts to commit sexual offenses);
    (20) Sec. 22-4120 (Aggravating circumstances).
    (21) Sec. 22-103 (Attempts to commit crime) if it includes an 
attempt to commit any offense listed in paragraphs (c)(1)-(20) of this 
section.



PART 572--PAROLE--Table of Contents




 Subparts A-C [Reserved]

        Subpart D--Parole and Mandatory Release Violator Reports

Sec.
572.30  Purpose and scope.
572.31  Procedures.

 Subpart E--Compassionate Release (Procedures for the Implementation of 
                           18 U.S.C. 4205(g))

572.40  Compassionate release under 18 U.S.C. 4205(g).

    Authority: 5 U.S.C. 301; 18 U.S.C. 4001, 4042, 4081, 4082 (Repealed 
in part as to offenses committed on or after November 1, 1987), 4205, 
5015 (Repealed October 12, 1984 as to offenses committed after that 
date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99.

 Subparts A-C [Reserved]



        Subpart D--Parole and Mandatory Release Violator Reports



Sec. 572.30  Purpose and scope.

    The Bureau of Prisons provides the U.S. Parole Commission with a 
Violator Report for use at the revocation hearing of a parole or 
mandatory release violator, when that hearing is conducted in an 
institution of the Bureau of Prisons.

[45 FR 33941, May 20, 1980]



Sec. 572.31  Procedures.

    Staff shall prepare the Violator Report to include the following 
information:
    (a) The inmate's original offense, sentence imposed, date and 
district;
    (b) Description of release procedure;
    (c) Alleged violation(s) of parole or mandatory release;
    (d) Inmate's comments concerning the alleged violation(s);

[[Page 636]]

    (e) An outline of the inmate's activities while under supervison on 
parole or mandatory release; and
    (f) At the option of the inmate, statement of current release plans 
and available community resources.

[45 FR 33941, May 20, 1980]



 Subpart E--Compassionate Release (Procedures for the Implementation of 
                           18 U.S.C. 4205(g))



Sec. 572.40  Compassionate release under 18 U.S.C. 4205(g).

    18 U.S.C. 4205(g) was repealed effective November 1, 1987, but 
remains the controlling law for inmates whose offenses occurred prior to 
that date. For inmates whose offenses occurred on or after November 1, 
1987, the applicable statute is 18 U.S.C. 3582(c)(1)(A). Procedures for 
compassionate release of an inmate under either provision are contained 
in 28 CFR part 571, subpart G.

[59 FR 1239, Jan. 7, 1994]

[[Page 637]]



    CHAPTER VI--OFFICES OF INDEPENDENT COUNSEL, DEPARTMENT OF JUSTICE




  --------------------------------------------------------------------
Part                                                                Page
600             General powers of Special Counsel...........         639
601             Jurisdiction of the Independent Counsel: 
                    Iran/Contra.............................         642
602             Jurisdiction of the Independent Counsel: In 
                    re Franklyn C. Nofziger.................         642
603             Jurisdiction of the Independent Counsel: In 
                    re Madison Guaranty Savings & Loan 
                    Association.............................         644

[[Page 639]]



PART 600--GENERAL POWERS OF SPECIAL COUNSEL--Table of Contents




Sec.
600.1  Grounds for appointing a Special Counsel.
600.2  Alternatives available to the Attorney General.
600.3  Qualifications of the Special Counsel.
600.4  Jurisdiction.
600.5  Staff.
600.6  Powers and authority.
600.7  Conduct and accountability.
600.8  Notification and reports by the Special Counsel.
600.9  Notification and reports by the Attorney General.
600.10  No creation of rights.

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

    Source: 64 FR 37042, July 9, 1999, unless otherwise noted.



Sec. 600.1  Grounds for appointing a Special Counsel.

    The Attorney General, or in cases in which the Attorney General is 
recused, the Acting Attorney General, will appoint a Special Counsel 
when he or she determines that criminal investigation of a person or 
matter is warranted and--
    (a) That investigation or prosecution of that person or matter by a 
United States Attorney's Office or litigating Division of the Department 
of Justice would present a conflict of interest for the Department or 
other extraordinary circumstances; and
    (b) That under the circumstances, it would be in the public interest 
to appoint an outside Special Counsel to assume responsibility for the 
matter.



Sec. 600.2  Alternatives available to the Attorney General.

    When matters are brought to the attention of the Attorney General 
that might warrant consideration of appointment of a Special Counsel, 
the Attorney General may:
    (a) Appoint a Special Counsel;
    (b) Direct that an initial investigation, consisting of such factual 
inquiry or legal research as the Attorney General deems appropriate, be 
conducted in order to better inform the decision; or
    (c) Conclude that under the circumstances of the matter, the public 
interest would not be served by removing the investigation from the 
normal processes of the Department, and that the appropriate component 
of the Department should handle the matter. If the Attorney General 
reaches this conclusion, he or she may direct that appropriate steps be 
taken to mitigate any conflicts of interest, such as recusal of 
particular officials.



Sec. 600.3  Qualifications of the Special Counsel.

    (a) An individual named as Special Counsel shall be a lawyer with a 
reputation for integrity and impartial decisionmaking, and with 
appropriate experience to ensure both that the investigation will be 
conducted ably, expeditiously and thoroughly, and that investigative and 
prosecutorial decisions will be supported by an informed understanding 
of the criminal law and Department of Justice policies. The Special 
Counsel shall be selected from outside the United States Government. 
Special Counsels shall agree that their responsibilities as Special 
Counsel shall take first precedence in their professional lives, and 
that it may be necessary to devote their full time to the investigation, 
depending on its complexity and the stage of the investigation.
    (b) The Attorney General shall consult with the Assistant Attorney 
General for Administration to ensure an appropriate method of 
appointment, and to ensure that a Special Counsel undergoes an 
appropriate background investigation and a detailed review of ethics and 
conflicts of interest issues. A Special Counsel shall be appointed as a 
``confidential employee'' as defined in 5 U.S.C. 7511(b)(2)(C).



Sec. 600.4  Jurisdiction.

    (a) Original jurisdiction. The jurisdiction of a Special Counsel 
shall be established by the Attorney General. The Special Counsel will 
be provided with a specific factual statement of the matter to be 
investigated. The jurisdiction of a Special Counsel shall also include 
the authority to investigate and prosecute federal crimes committed in 
the course of, and with intent to interfere with, the Special Counsel's 
investigation, such as perjury, obstruction of

[[Page 640]]

justice, destruction of evidence, and intimidation of witnesses; and to 
conduct appeals arising out of the matter being investigated and/or 
prosecuted.
    (b) Additional jurisdiction. If in the course of his or her 
investigation the Special Counsel concludes that additional jurisdiction 
beyond that specified in his or her original jurisdiction is necessary 
in order to fully investigate and resolve the matters assigned, or to 
investigate new matters that come to light in the course of his or her 
investigation, he or she shall consult with the Attorney General, who 
will determine whether to include the additional matters within the 
Special Counsel's jurisdiction or assign them elsewhere.
    (c) Civil and administrative jurisdiction. If in the course of his 
or her investigation the Special Counsel determines that administrative 
remedies, civil sanctions or other governmental action outside the 
criminal justice system might be appropriate, he or she shall consult 
with the Attorney General with respect to the appropriate component to 
take any necessary action. A Special Counsel shall not have civil or 
administrative authority unless specifically granted such jurisdiction 
by the Attorney General.



Sec. 600.5  Staff.

    A Special Counsel may request the assignment of appropriate 
Department employees to assist the Special Counsel. The Department shall 
gather and provide the Special Counsel with the names and resumes of 
appropriate personnel available for detail. The Special Counsel may also 
request the detail of specific employees, and the office for which the 
designated employee works shall make reasonable efforts to accommodate 
the request. The Special Counsel shall assign the duties and supervise 
the work of such employees while they are assigned to the Special 
Counsel. If necessary, the Special Counsel may request that additional 
personnel be hired or assigned from outside the Department. All 
personnel in the Department shall cooperate to the fullest extent 
possible with the Special Counsel.



Sec. 600.6  Powers and authority.

    Subject to the limitations in the following paragraphs, the Special 
Counsel shall exercise, within the scope of his or her jurisdiction, the 
full power and independent authority to exercise all investigative and 
prosecutorial functions of any United States Attorney. Except as 
provided in this part, the Special Counsel shall determine whether and 
to what extent to inform or consult with the Attorney General or others 
within the Department about the conduct of his or her duties and 
responsibilities.



Sec. 600.7  Conduct and accountability.

    (a) A Special Counsel shall comply with the rules, regulations, 
procedures, practices and policies of the Department of Justice. He or 
she shall consult with appropriate offices within the Department for 
guidance with respect to established practices, policies and procedures 
of the Department, including ethics and security regulations and 
procedures. Should the Special Counsel conclude that the extraordinary 
circumstances of any particular decision would render compliance with 
required review and approval procedures by the designated Departmental 
component inappropriate, he or she may consult directly with the 
Attorney General.
    (b) The Special Counsel shall not be subject to the day-to-day 
supervision of any official of the Department. However, the Attorney 
General may request that the Special Counsel provide an explanation for 
any investigative or prosecutorial step, and may after review conclude 
that the action is so inappropriate or unwarranted under established 
Departmental practices that it should not be pursued. In conducting that 
review, the Attorney General will give great weight to the views of the 
Special Counsel. If the Attorney General concludes that a proposed 
action by a Special Counsel should not be pursued, the Attorney General 
shall notify Congress as specified in Sec. 600.9(a)(3).
    (c) The Special Counsel and staff shall be subject to disciplinary 
action for misconduct and breach of ethical duties under the same 
standards and to the same extent as are other employees of the 
Department of Justice. Inquiries into such matters shall be handled

[[Page 641]]

through the appropriate office of the Department upon the approval of 
the Attorney General.
    (d) The Special Counsel may be disciplined or removed from office 
only by the personal action of the Attorney General. The Attorney 
General may remove a Special Counsel for misconduct, dereliction of 
duty, incapacity, conflict of interest, or for other good cause, 
including violation of Departmental policies. The Attorney General shall 
inform the Special Counsel in writing of the specific reason for his or 
her removal.



Sec. 600.8  Notification and reports by the Special Counsel.

    (a) Budget. (1) A Special Counsel shall be provided all appropriate 
resources by the Department of Justice. Within the first 60 days of his 
or her appointment, the Special Counsel shall develop a proposed budget 
for the current fiscal year with the assistance of the Justice 
Management Division for the Attorney General's review and approval. 
Based on the proposal, the Attorney General shall establish a budget for 
the operations of the Special Counsel. The budget shall include a 
request for assignment of personnel, with a description of the 
qualifications needed.
    (2) Thereafter, 90 days before the beginning of each fiscal year, 
the Special Counsel shall report to the Attorney General the status of 
the investigation, and provide a budget request for the following year. 
The Attorney General shall determine whether the investigation should 
continue and, if so, establish the budget for the next year.
    (b) Notification of significant events. The Special Counsel shall 
notify the Attorney General of events in the course of his or her 
investigation in conformity with the Departmental guidelines with 
respect to Urgent Reports.
    (c) Closing documentation. At the conclusion of the Special 
Counsel's work, he or she shall provide the Attorney General with a 
confidential report explaining the prosecution or declination decisions 
reached by the Special Counsel.



Sec. 600.9  Notification and reports by the Attorney General.

    (a) The Attorney General will notify the Chairman and Ranking 
Minority Member of the Judiciary Committees of each House of Congress, 
with an explanation for each action--
    (1) Upon appointing a Special Counsel;
    (2) Upon removing any Special Counsel; and
    (3) Upon conclusion of the Special Counsels investigation, 
including, to the extent consistent with applicable law, a description 
and explanation of instances (if any) in which the Attorney General 
concluded that a proposed action by a Special Counsel was so 
inappropriate or unwarranted under established Departmental practices 
that it should not be pursued.
    (b) The notification requirement in paragraph (a)(1) of this section 
may be tolled by the Attorney General upon a finding that legitimate 
investigative or privacy concerns require confidentiality. At such time 
as confidentiality is no longer needed, the notification will be 
provided.
    (c) The Attorney General may determine that public release of these 
reports would be in the public interest, to the extent that release 
would comply with applicable legal restrictions. All other releases of 
information by any Department of Justice employee, including the Special 
Counsel and staff, concerning matters handled by Special Counsels shall 
be governed by the generally applicable Departmental guidelines 
concerning public comment with respect to any criminal investigation, 
and relevant law.



Sec. 600.10  No creation of rights.

    The regulations in this part are not intended to, do not, and may 
not be relied upon to create any rights, substantive or procedural, 
enforceable at law or equity, by any person or entity, in any matter, 
civil, criminal, or administrative.

[[Page 642]]



PART 601--JURISDICTION OF THE INDEPENDENT COUNSEL: IRAN/CONTRA--Table of Contents




    Authority: 28 U.S.C. 509, 510, and 515; 5 U.S.C. 301; Article II of 
the U.S. Constitution.



Sec. 601.1  Jurisdiction of the Independent Counsel: Iran/Contra.

    (a) The Independent Counsel. Iran/Contra has jurisdiction to 
investigate to the maximum extent authorized by part 600 of this chapter 
whether any person or group of persons currently described in section 
591 of title 28 of the U.S. Code, including Lieutenant Colonel Oliver L. 
North, other United States Government officials, or other individuals or 
organizations acting in concert with Lt. Col. North, or with other U.S. 
Government officials, has committed a violation of any federal criminal 
law, as referred to in section 591 of title 28 of the U.S. Code, 
relating in any way to:
    (1) The direct or indirect sale, shipment, or transfer since in or 
about 1984 down to the present, of military arms, materiel, or funds to 
the Government of Iran, officials of that government, or persons, 
organizations or entities connected with or purporting to represent that 
government, or persons located in Iran;
    (2) The direct or indirect sale, shipment, or transfer of military 
arms, materiel or funds to any government, entity, or persons acting, or 
purporting to act as an intermediary in any transaction above referred 
to in paragraph (a)(1) of this section;
    (3) The financing or funding of any direct or indirect sale, 
shipment or transfer referred to in paragraph (a) (1) or (2) of this 
section;
    (4) The diversion of the proceeds from any transaction described in 
paragraph (a) (1) or (2) of this section to or for any person, 
organization, foreign government, or any faction or body of insurgents 
in any foreign country, including, but not limited to Nicaragua;
    (5) The provision or coordination of support for persons or entities 
engaged as military insurgents in armed conflict with the Government of 
Nicaragua since 1984.
    (b) The Independent Counsel. Iran/Contra shall have jurisdiction and 
authority to investigate other allegations or evidence of violation of 
any federal criminal law by Oliver L. North, and any person or entity 
heretofore referred to, developed during the Independent Counsel's 
investigation referred to above, and connected with or arising out of 
that investigation, and to seek indictments and to prosecute any persons 
or entities involved in any of the foregoing events or transactions who 
are reasonably believed to have committed a violation of any federal 
criminal law (other than a violation constituting a Class B or C 
misdemeanor, or an infraction, or a petty offense) arising out of such 
events, including persons or entities who have engaged in an unlawful 
conspiracy or who have aided or abetted any criminal offense.
    (c) The Independent Counsel. Iran/Contra shall have prosecutorial 
jurisdiction to initiate and conduct prosecutions in any court of 
competent jurisdiction for any violation of section 1826 of title 28 of 
the U.S. Code, or any obstruction of the due administration of justice, 
or any material false testimony or statement in violation of the federal 
criminal laws, in connection with the investigation authorized by part 
600 of this chapter.

[52 FR 7272, March 10, 1987; 52 FR 9241, Mar. 23, 1987]



PART 602--JURISDICTION OF THE INDEPENDENT COUNSEL: IN RE FRANKLYN C. NOFZIGER--Table of Contents




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



Sec. 602.1  Independent Counsel: In re Franklyn C. Nofziger.

    (a) The Independent Counsel: In re Franklyn C. Nofziger shall have 
jurisdiction to investigate to the maximum extent authorized by part 600 
of this chapter whether Franklyn C. Nofziger committed a violation of 
any Federal criminal law, as referred to in 28 U.S.C. 591, and more 
specifically whether the aforesaid Franklyn C. Nofziger, who served as 
Assistant to the President from January 21, 1981 through January

[[Page 643]]

22, 1982, and who was therefore prohibited by the provisions of 18 
U.S.C. 207 from thereafter knowingly making certain types of oral or 
written communications, did violate any subsection of 18 U.S.C. 207 
because of certain oral or written communications with departments or 
agencies of the U.S. Government (including but not limited to the White 
House or the Executive Office of the President) on behalf of Welbilt 
Electronic Die Corporation, Comet Rice, Inc., or any other person or 
entity, at any time during 1982 or 1983.
    (b) The lndependent Counsel shall have jurisdiction and authority to 
investigate other allegations and evidence of violation of any Federal 
criminal law by Franklyn C. Nofziger, and/or any of his business 
associates who may have acted in concert with or aided or abetted 
Franklyn C. Nofziger, developed. during the Independent Counsel's 
investigation referred to in paragraph (a) of this section or connected 
with or arising out of that investigation, and to seek indictments and 
to prosecute any such persons or entities involved in any of the 
foregoing events or transactions that Independent Counsel believes 
constitute a Federal offense and that there is reasonable cause to 
believe that the admissible evidence probably will be sufficient to 
obtain and sustain a conviction (28 U.S.C. 594(f)) of any Federal 
criminal law (other than a violation constituting a Class B or C 
misdemeanor, or an infraction, or a petty offense) arising out of such 
events, including such persons or entities who have engaged in an 
unlawful conspiracy or who have aided or abetted any criminal offense 
related to the prosecutorial jurisdiction of the Independent Counsel as 
herein established.
    (c) The Independent Counsel: In re Franklyn C. Nofziger shall have 
jurisdiction to investigate to the maximum extent authorized by title 28 
U.S.C. 594, whether the conduct of Edwin Meese III specified in this 
section constituted a violation of any federal criminal law, as referred 
to in 28 U.S.C. 591, and more specifically whether the federal conflict 
of interest laws, 18 U.S.C. 201-211, or any other provision of the 
federal criminal law, was violated by Mr. Meese's relationship or 
dealings at any time from 1981 to the present with any of the following: 
Welbilt Electronic Die Corporation/Wedtech Corporation (including any of 
its contracts with the U.S. Government, or efforts to obtain same); 
Franklyn C. Nofziger; E. Robert Wallach; W. Franklyn Chinn; and/or 
Financial Management International, Inc.
    (d) The Independent Counsel: In re Franklyn C. Nofziger shall have 
jurisdiction and authority to investigate other allegations and evidence 
of violation of any federal criminal law by Edwin Meese III developed 
during the Independent Counsel's investigation referred to in paragraph 
(c) of this section, and connected with or arising out of that 
investigation, and to seek indictments and to prosecute any persons or 
entities involved in any of the foregoing events or transactions that 
Independent Counsel believes constitute a federal offense and that there 
is reasonable cause to believe that the admissible evidence probably 
will be sufficient to obtain and sustain a conviction (28 U.S.C. 594(f)) 
of any federal criminal law (other than a violation constituting a Class 
B or C misdemeanor, or an infraction, or a petty offense) arising out of 
such events, including persons or entities who have engaged in an 
unlawful conspiracy or who have aided or abetted any criminal offense 
related to the prosecutorial jurisdiction of the Independent Counsel as 
herein established.
    (e) The Independent Counsel shall have prosecutorial jurisdiction to 
initiate and conduct prosecutions in any court of competent jurisdiction 
for any violation of 28 U.S.C. 1826, or any obstruction of the due 
administration of justice, or any material false testimony or statement 
in violation of the Federal criminal laws, in connection with the 
investigation authorized by this regulation, and shall have all the 
powers and authority provided by the Ethics in Government Act of 1978, 
as amended, and specifically by 28 U.S.C. 594.

[52 FR 22439, June 12, 1987, as amended at 52 FR 22439, June 12, 1987; 
52 FR 35544, Sept. 22, 1987]

[[Page 644]]



PART 603--JURISDICTION OF THE INDEPENDENT COUNSEL: IN RE MADISON GUARANTY SAVINGS & LOAN ASSOCIATION--Table of Contents




    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 543, unless otherwise 
noted.



Sec. 603.1  Jurisdiction of the Independent Counsel

    (a) The Independent Counsel: In re Madison Guaranty Savings & Loan 
Association shall have jurisdiction and authority to investigate to the 
maximum extent authorized by part 600 of this chapter whether any 
individuals or entities have committed a violation of any federal 
criminal or civil law relating in any way to President William Jefferson 
Clinton's or Mrs. Hillary Rodham Clinton's relationships with:
    (1) Madison Guaranty Savings & Loan Association;
    (2) Whitewater Development Corporation; or
    (3) Capital Management Services.
    (b) The Independent Counsel: In re Madison Guaranty Savings & Loan 
Association shall have jurisdiction and authority to investigate other 
allegations or evidence of violation of any federal criminal or civil 
law by any person or entity developed during the Independent Counsel's 
investigation referred to above, and connected with or arising out of 
that investigation.
    (c) The Independent Counsel: In re Madison Guaranty Savings & Loan 
Association shall have jurisdiction and authority to investigate any 
violation of section 1826 of title 28 of the U.S. Code, or any 
obstruction of the due administration of justice, or any material false 
testimony or statement in violation of federal law, in connection with 
any investigation of the matters described in paragraph (a) or (b) of 
this section.
    (d) The Independent Counsel: In re Madison Guaranty Savings & Loan 
Association shall have jurisdiction and authority to seek indictments 
and to prosecute, or to bring civil actions against, any persons or 
entities involved in any of the matters referred to in paragraph (a), 
(b), or (c) of this section who are reasonably believed to have 
committed a violation of any federal criminal or civil law arising out 
of such matters, including persons or entities who have engaged in an 
unlawful conspiracy or who have aided or abetted any federal offense.

[59 FR 5322, Feb. 4, 1994]

[[Page 645]]



               CHAPTER VII--OFFICE OF INDEPENDENT COUNSEL




  --------------------------------------------------------------------
Part                                                                Page
700             Production or disclosure of material or 
                    information of the Office of Independent 
                    Counsel.................................         647
701             Procedures for disclosure of records under 
                    the Freedom of Information Act..........         657

[[Page 647]]



PART 700--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION OF THE OFFICE OF INDEPENDENT COUNSEL--Table of Contents




Subpart A--Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974

Sec.
700.10  General provisions.
700.11  Request for access to records.
700.12  Responses to requests for access to records.
700.13  Form and content of Office responses.
700.14  Classified information.
700.15  Records in exempt systems of records.
700.16  Access to records.
700.17  Fees for access to records.
700.18  Appeals from denials of access.
700.19  Preservation of records.
700.20  Requests for correction of records.
700.21  Records not subject to correction.
700.22  Request for accounting of record disclosures.
700.23  Notice of subpoenas and emergency disclosures.
700.24  Security of systems of records.
700.25  Use and collection of social security numbers.
700.26  Employee standards of conduct.
700.27  Other rights and services.

 Subpart B--Exemption of the Office of Independent Counsel's Systems of 
                      Records Under the Privacy Act

700.31  Exemption of the Office of Independent Counsel's systems of 
          records--limited access.

    Authority: 5 U.S.C. 552a.

    Source: 52 FR 48097, Dec. 18, 1987, unless otherwise noted.



Subpart A--Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974



Sec. 700.10  General provisions.

    (a) Purpose and scope. The subpart contains the regulations of the 
Office of Independent Counsel implementing the Privacy Act of 1974, 5 
U.S.C. 552a. The regulations apply to all records that are contained in 
systems of records maintained by the Office of Independent Counsel and 
that 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 office.
    (b) Transfer of law-enforcement records. The head of the Office, 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 that are 
necessary to carry out an authorized law-enforcement activity of the 
Office.
    (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(1) and 5 U.S.C. 
552a(a)(1).
    (2) Record has the same meaning given in 5 U.S.C. 552(a)(4).
    (3) Request for access means a request made pursuant to 5 U.S.C. 
552a(d)(1).
    (4) Request for correction means a request made pursuant to 5 U.S.C. 
552a(d)(2).
    (5) Request for an accounting means a request made pursuant to 5 
U.S.C. 552a(c)(3).
    (6) Requester means an individual who makes either a request for 
access, a request for correction, or a request for an accounting.
    (7) System of records means a group of any group of any records 
under the control of the Office 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. 700.11  Request 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 the Office. A requester in need of guidance in 
defining his request may write to the FOIA/PA Officer, Office of 
Independent Counsel, suite 701 West, 555 Thirteenth Street, NW., 
Washington, DC 20004. Both the envelope and the request itself should be 
marked: ``Privacy Act Request.''
    (b) Description of records sought. A request for access to records 
must describe the records sought in sufficient detail to enable Office 
personnel to locate the system of records containing

[[Page 648]]

the record with a reasonable amount of effort. Whenever possible, a 
request for access should describe the nature of the records 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.
    (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. 700.17 up to $25.00. The 
Office shall confirm this agreement in its letter of acknowledgment to 
the requesters. When filing a request, a requester may specifiy 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. 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 
Office 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 Office 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 the subject of the record, 
as required in paragraph (d) of this section,
    (2) That he 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. 700.12  Responses to requests for access to records.

    (a) Authority to grant or deny requests. The head of the Office, or 
his designee, is authorized to grant or deny any request for access to a 
record.
    (b) Initial action by the Office. When the Office receives a request 
for access to a record in its possession, the Office shall promptly 
determine whether another Government agency is better able to determine 
whether the record is exempt, to any extent, from access. If the Office 
determines that it is the agency best able to determine whether the 
record is exempt, to any extent, from access, then the Office shall 
respond to the request. If the Office determines that it is not the 
agency best able to determine whether the record is exempt from access, 
the Office shall respond to the request, after consulting with the 
agency best able to determine whether the record is exempt from access. 
Under ordinary circumstances, the agency that generated or originated a 
requested record shall be presumed to be the agency best able to 
determine whether the record is exempt from access. However, nothing in 
this section shall prohibit the agency that generated or originated a 
requested record from consulting with the Office, if the agency that 
generated or originated the requested record determines that the Office 
has an interest in the requested record or the information contained 
therein.
    (c) Law-enforcement information. Whenever a request for access is 
made for a record containing information that relates to an 
investigation of a possible violation of criminal law or to a criminal 
law-enforcement proceeding and that was generated or originated by 
another agency, the Office shall consult with that other agency, as 
appropriate.
    (d) Classified information. Whenever a request for access is made 
for a record

[[Page 649]]

containing information that has been classified, or that may be eligible 
for classification, by another agency under the provision of Executive 
Order 12356 or any other Executive order concerning the classification 
of records, the Office shall refer the responsibilities for responding 
to the request to the agency that classified the information or should 
consider the information for classification. Whenever a record contains 
information that has been derivatively classified by the Office because 
it contains information classified by another agency, the Office shall 
refer the responsibility for responding to the request to the agency 
that classified the underlying information; however, such referral shall 
extend only to the information classified by the other agency.
    (e) Agreements regarding consultations. No provision of this section 
shall preclude formal or informal agreements between the Office and 
another agency, to eliminate the need for consultations concerning 
requests or classes of requests.
    (f) Date for determining responsive records. In determining records 
responsive to a request for access, the Office ordinarily will include 
only those records within the Office's possession and control as of the 
date of its receipt of the request.



Sec. 700.13  Form and content of Office responses.

    (a) Form of notice granting request for access. After the Office has 
made a determination to grant a request for access in whole or in part, 
the Office 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. 700.17.
    (b) Form of notice denying request for access. When the Office 
denies a request for access in whole or in part it shall so notify the 
requester in writing. The notice shall be signed by the head of the 
Office, 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 that the Office 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. 700.18(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 Office 
shall so notify the requester in writing.
    (d) Medical records. When an individual requests medical records 
pertaining to himself that are not otherwise exempt from individual 
access, the Office 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. 700.14  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, the Office shall review the information to determine whether it 
warrants classification. Information that does not warrant 
classification shall not be withheld from a requester on the basis of 5 
U.S.C. 552a(k)(1). The Office shall, upon receipt of any appeal 
involving classified or classifiable information, take appropriate 
action to ensure compliance with the provisions of Executive Order 
12356.



Sec. 700.15  Records in exempt systems of records.

    (a) Law-enforcement records exempted under subsections (j)(2) and 
(k)(2). Before denying a request by an individual for access to a law-
enforcement record that has been exempted from access

[[Page 650]]

pursuant to 5 U.S.C. 552a(k)(2), the Office 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 would otherwise be eligible or to which he would otherwise 
be entitled under federal law. If so, the Office 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 when 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 Office is able to delete from such information all material 
that 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 Office is 
able to delete from such record all information that would identify a 
confidential source.



Sec. 700.16  Access to records.

    (a) Manner of access. The Office, once it has made a determination 
to grant a request for access, shall grant the requester access to the 
requested record 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 Office shall in either case charge the requester applicable fees in 
accordance with the provisions of Sec. 700.17. If the Office 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 Office.
    (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 Office of Independent Counsel 
is authorized to disclose the record in the presence of both 
individuals.



Sec. 700.17  Fees for access to records.

    (a) When charged. The Office shall charge fees pursuant to 5 U.S.C. 
552a(f)(5) for the copying of records to afford access to individuals 
unless the Office, in its discretion, waives or reduces the fees for 
good cause shown. The Office shall charge fees only at the rate of $0.10 
per page. For materials other than paper copies, the Office 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 when they would amount, in the aggregate, for one request or for 
a series of related requests, to less than $3.00. However, the Office 
may, in its discretion, increase the amount of this minimum fee.
    (b) Notice of estimated fees in excess of $25. When the Office 
determines or estimates that the fees to be charged under this section 
may amount to more than $25, the Office 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 Office shall advise the requester that the estimated fee 
may be only a portion of the total fee.) When the estimated fee exceeds 
$25 and the Office has so notified the requester, the Office 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 Office 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) When the estimated fee chargeable under 
this section exceeds $25, the Office may require a requester to make an 
advance deposit of 25 percent of the estimated fee or an

[[Page 651]]

advance payment of $25, whichever is greater.
    (2) When a requester has previously failed to pay a fee charged 
under this part, the requester must pay the Office the full amount owed 
and make an advance deposit of the full amount of any estimated fee 
before the Office shall be required to process a new or pending request 
for access from that requester.



Sec. 700.18  Appeals from denials of access.

    (a) Appeals to Independent Counsel. When the Office denies in whole 
or part a request for access to records, the requester may appeal the 
denial to Independent Counsel within 30 days of his receipt of the 
notice denying his request. An appeal to Independent Counsel shall be 
made in writing, addressed to the Office of Independent Counsel, suite 
701 West, 555 Thirteenth Street, NW., Washington, DC 20004. Both the 
envelope and the letter of appeal itself must be clearly marked: 
``Privacy Act Appeal.''
    (b) Action on appeals. Unless Independent Counsel otherwise directs, 
he or his designee shall act on all appeals under this section, except 
that: A denial of a request for access by Independent Counsel, or his 
designee, shall constitute the final action of the Office 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 United States 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. 700.19  Preservation of records.

    The Office 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. 700.20  Requests 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. 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.''
    (b) Initial determination. Within 10 working days of receiving a 
request for correction, the Office shall notify the requester whether 
his request will be granted or denied, in whole or in part. If the 
Office 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 Office 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 Independent Counsel within 
30 days of his receipt of the notice denying his request. An appeal to 
Independent Counsel 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 
addressed to the Office of Independent Counsel, suite 701 West, 555 
Thirteenth Street, NW., Washington, DC 20004.

[[Page 652]]

Both the envelope and the letter of appeal itself must be clearly 
marked: ``Privacy Act Correction Appeal.''
    (d) Determination on appeal. Independent Counsel, or his designee, 
shall decide all appeals from denials or 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 United States 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 Office 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 Independent Counsel, Suite 701 West, 555 
Thirteenth Street, NW., Washington, DC 20004, 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, Independent Counsel, 
or his designee, 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 of disagreement may 
be found.
    (f) Notices of correction or disagreement. Within 30 working days of 
the correction of a record, the Office shall advise all agencies to 
which it previously disclosed the record that the record has been 
corrected. Whenever an individual has filed a statement of disagreement, 
the Office shall append a copy of the statement to the disputed record 
whenever the record is disclosed. The Office may also append to the 
disputed record any written statement it has made giving the Office's 
reasons for denying the request to correct the record.



Sec. 700.21  Records not subject to correction.

    The following records are not subject to correction or amendment as 
provided in Sec. 700.20:
    (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 that constitute the official record of such 
proceedings;
    (c) Presentence records that are the property of the courts, but may 
be maintained by the Office 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. 700.22  Request for accounting of record disclosures.

    (a) An individual may request the Office to provide him with an 
accounting of those other agencies to which the Office 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. The request 
also must be addressed to the Office and both the envelope and the 
request itself must clearly be marked: ``Privacy Act Accounting 
Request.''
    (b) The Office 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),

[[Page 653]]

    (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 
Independent Counsel 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. 700.23  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 of 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. 552a(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. 700.24  Security of systems of records.

    (a) The Office Administrator or Security Officer 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) The Office 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 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, 
the Office'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) The Office shall establish rules restricting access to records 
to only those individuals within the Office who must have access to such 
records in order to perform their duties. The Office also shall adopt 
procedures to prevent the accidental disclosure of records or the 
accidental granting of access to records.



Sec. 700.25  Use and collection of social security numbers.

    (a) Each system manager of a system of records that 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

[[Page 654]]

revise the system to avoid future collection and use of the Social 
Security numbers.
    (b) The Office 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. 700.26  Employee standards of conduct.

    (a) The Office shall inform its employees of the provisions of the 
Privacy Act, including the Act's civil liability and criminal penalty 
provisions. The Office also shall notify its employees that they have a 
duty to--
    (1) Protect the security of records,
    (2) Assure the accuracy, relevance, timeliness, and completeness of 
records,
    (3) Avoid the unauthorized disclosure, either verbal or written, of 
records, and
    (4) Ensure that the Office maintains no system of records without 
public notice.
    (b) Except to the extent that the Privacy Act permits such 
activities, an employee of the Office of Independent Counsel 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 Office;
    (2) Collect from individuals only that information that is necessary 
to the performance of the functions or to the discharge of the 
responsibilities of the Office;
    (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 Office to collect such 
information,
    (ii) The principal purposes for which the Office intends to use the 
information,
    (iii) The routine uses the Office may make of the information, and
    (iv) The effects upon the individual of not furnishing the 
information;
    (5) Maintain all records that are used by the agency in making any 
determination about any individual with such accuracy, relevance, 
timeliness, and completeness as to assure 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 assure 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--
    (i) The individual has volunteered such information for his own 
benefit,
    (ii) A statute expressly authorizes the Office 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 Office 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 Office to agencies 
or individuals whether verbally or in writing;
    (10) Disclose no record to anyone, except within the Office, 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 Office of any record that contains 
information that the Act or the foregoing provisions of this paragraph 
do not permit the Office to maintain.
    (c) Not less than once a year, the head of each Office shall review 
the systems of records maintained by that Office to ensure that the 
Office is in

[[Page 655]]

compliance with the provisions of the Privacy Act.



Sec. 700.27  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.



 Subpart B--Exemption of the Office of Independent Counsel's Systems of 
                      Records Under the Privacy Act



Sec. 700.31  Exemption of the Office of Independent Counsel's systems of records--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), (H) and (I); (e) (5) 
and (8); (f); and (g):

    (1) General Files System of the Office of Independent Counsel (OIC/
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 Office of 
Independent Counsel 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. Moreover, the release of the 
accounting of disclosures made under subsection (b) of the Act, 
including those disclosures permitted under the routine uses published 
for these systems 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 an investigation or to obtain valuable 
information concerning the nature of the investigation, material 
compiled during the investigation, and the identity of witnesses and 
informants. Disclosure of the accounting 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) of the Act is 
specifically exempted for this system of records.
    (2) From subsection (c)(4) because an exemption is being claimed 
under subsection (d) of the Act. This system is exempt from the access 
provisions of subsection (d) pursuant to subsections (j) and (k) of the 
Privacy Act. Subsection (c)(4), therefore, is inapplicable to this 
system of records.
    (3) From subsection (d) because the records contained in this system 
relate to official federal investigations. Individual access to these 
records contained in this system would 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 identities 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, reveal confidential informants, 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. Individual access also could constitute an unwarranted 
invasion of the personal privacy of third parties who are involved in an 
investigation. Amendment of the records would interfere with ongoing 
criminal-law enforcement proceedings and impose an impossible 
administrative burden.
    (4) From subsections (e) (1) and (5) because, in the course of 
criminal or other law-enforcement investigation, cases and matters, the 
Office of Independent Counsel may occasionally obtain information 
concerning actual or potential violations of law that are not strictly 
within its authority or jurisdiction, or may compile information, the 
accuracy of which is unclear or

[[Page 656]]

which is not strictly relevant or necessary to a specific investigation. 
In the interests of effective law enforcement, it is appropriate and 
necessary 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 ensure the relevance, 
accuracy, timeliness and completeness of all information obtained. In 
particular, this would restrict the ability of trained investigators, 
intelligence analysts, and government attorneys to exercise their 
judgment in reporting on information and investigations.
    (5) From subsection (e)(2) because, in a criminal or other 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 such circumstances, 
the subject of the investigation or prosecution would be informed of the 
existence of the investigation and would therefore be able to avoid 
detection, apprehension, or legal obligations or duties, as well as to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony.
    (6) From subsection (e)(3) because compliance with the requirements 
of this subsection during the course of an investigation could impede 
the information-gathering process, thus hampering the investigation. 
Furthermore, such requirements could 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 is 
exempt from the individual-access provisions of subsection (d) pursuant 
to subsections (j) and (k) of the Privacy Act.
    (8) From subsection (e)(4)(I) because the categories of sources of 
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 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) From subsection (e)(8) because the individual-notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement through interference with the Office of Independent 
Counsel's ability to issue subpoenas and the disclosure of its 
investigative techniques and procedures.
    (10) From subsection (f) because this system is exempt from the 
individual-access provisions of subsection (d) pursuant to subsections 
(j) and (k) of the Privacy Act. Furthermore, such notice to an 
individual would be detrimental to the successful conduct and/or 
completion of an investigation or prosecution pending or future.
    (11) From subsection (g) because this system is exempt from the 
individual-access and amendment provisions of subsection (d) and the 
provisions of subsection (f) pursuant to subsections (j) and (k) of the 
Privacy Act.
    (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), (H) and (I); (e) 
(5) and (8); (f) and (g):

    (1) Freedom of Information Act/Privacy Act Files (OIC/002). These 
exemptions apply to the extent that information in this system is 
subject to exemption pursuant ot 5 U.S.C. 552a(j)(2), (k)(1), (k)(2,) 
and (k)(5).

    (d) Because this system contains Office of Independent Counsel 
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(s) of criminal investigations under 
investigation or in litigation to obtain valuable information concerning 
the nature of that investigation, matter or case and present a serious 
impediment to law-enforcement activities.
    (2) From subsection (c)(4) because an exemption is being claimed for 
subsection (d) of the Act, rendering this subsection inapplicable to the 
extent that this system of records is exempted from subsection (d).

[[Page 657]]

    (3) From subsection (d) because access to the records contained in 
this system would inform the subject of criminal investigation 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-enforement proceedings and impose an impossible administrative 
burden.
    (4) From subsection (e)(1) because in the courses of criminal 
investigations, matters or cases, the Office of Independent Counsel 
often obtains information concerning the violation of laws other than 
those relating to an active case, matter, or investigation. In the 
interests of effective law enforcement and criminal litigation, it is 
necessary that the Office of Independent Counsel retain this information 
since it can aid in establishing patterns of activity and provide 
valuable leads for future cases that may be brought within the Office of 
Independent Counsel.
    (5) From subsection (e)(2) because collecting 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 such circumstances, 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 providing individuals supplying 
information with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement. In those 
circumstances, 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 subsection (e)(4) (G), (H) and (I) because this system of 
records is exempt from the individual-access and amendment 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 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, i.e., this could interfere with the Office of 
Independent Counsel's 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 and amendment 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 
individual-access and amendment provisions of subsections (d) and (f), 
this rendering subsection (g) inapplicable.



PART 701--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT--Table of Contents




Sec.
701.10  General provisions.
701.11  Requirements pertaining to requests.
701.12  Responses by the Office to requests.
701.13  Form and content of Office responses.
701.14  Classified information.
701.15  Business information.
701.16  Appeals.
701.17  Preservation of records.
701.18  Fees.
701.19  Other rights and services.

    Authority: 5 U.S.C. 552.

    Source: 53 FR 8895, Mar. 18, 1988, unless otherwise noted.

[[Page 658]]



Sec. 701.10  General provisions.

    (a) This part contains the regulations of the Office of Independent 
Counsel implementing the Freedom of Information Act (``FOIA''), 5 U.S.C. 
552. 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 part, 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 regulations 
issued pursuant to the Privacy Act. To the extent permitted by other 
laws, the Office will also consider making available records that it is 
permitted to withhold under the FOIA if it determines that such 
disclosure would be in the public interest and would not interfere with 
the functioning of the Office.
    (b) As used in this part, 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) Request means any request for records made pursuant to 5 U.S.C. 
552(a)(3).
    (4) Requester means any person who makes a request to the Office.
    (5) Business information means trade secrets or other commercial or 
financial information.
    (6) Business submitter means any commercial entity that provides 
business information to the Office and that has a proprietary interest 
in the information.
    (c) The FOIA/PA Officer of the Office of Independent Counsel shall 
be responsible to Independent Counsel for all matters pertaining to the 
administration of this part.
    (d) The Office of Independent Counsel 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). The Office shall notify a requester 
whenever it is unable to respond to or process the request or appeal 
within the time limits established by the FOIA. The Office shall respond 
to and process requests and appeals in their approximate order of 
receipt, to the extent consistent with sound administrative practice.



Sec. 701.11  Requirements pertaining to requests.

    (a) How made and addressed. A requester may make a request under 
this part for a record of the Office of Independent Counsel by writing 
to the Office at: FOIA/PA Officer, Office of Independent counsel, Suite 
701 West, 555 Thirteenth Street NW., Washington, DC 20004. A request 
should be sent to the Office at its proper address and both the envelope 
and the request itself should be clearly marked: ``Freedom of 
Information Act Request.''
    (b) Request must reasonably describe the records sought. A request 
must describe the records sought in sufficient detail to enable Office 
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 
indentified by a technique or process that is not unreasonably 
burdensome or disruptive of Office 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 additon, 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. If 
the Office determines that a request does not reasonably describe the 
records sought, the Office shall either advise the requester what 
additional information is needed or otherwise state why the request is 
insufficient. The Office also shall extend to the requester an 
opportunity to confer with Office personnel with the objective of 
reformulating the request in a manner that will meet the requirements of 
this section.
    (c) Agreement to pay fees. (1) The filing of a request under this 
part shall be deemed to constitute an agreement by the requester to pay 
all applicable fees charged under Sec. 701.18 of this part, up to $25, 
unless a waiver of fees is sought.

[[Page 659]]

The Office 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.
    (2) If a waiver of fees up to $25 is sought in the requester's 
request to the Office, the Office will make its determination on the fee 
waiver (and notify the requester as soon as possible) after receipt of 
the request. The submission of a request for fee waiver will not delay 
the Office's responsibility to search for responsive records.
    (3) If the fee waiver is denied by the Office, and the fees involved 
total $25 or less, the Office will send the responsive documents to the 
requester, along with a bill for fees. The collection of the unpaid bill 
shall follow the procedures found herein at Sec. 701.18 (g)(2) and (h).



Sec. 701.12  Responses by the Office to requests.

    (a) Authority to grant or deny requests. The head of the Office, or 
his designee, is authorized to grant or deny and request for a record of 
the Office.
    (b) Initial action by the Office. When the Office receives a request 
for a record in its possession, the Office shall promptly determine 
whether another agency of the Government is better able to determine 
whether the record is exempt, to any extent, from mandatory disclosure 
under the FOIA; and 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 Office determines that 
it is the agency best able to determine whether to disclose the record 
in response to the request, then the Office shall respond to the 
request. If the Office determines that it is not the agency best able to 
determine whether to disclose the record in response to the request, the 
Office shall either:
    (1) Respond to the request, after consulting with the other agency 
best able to determine whether to disclose the record and with any other 
agency having a substantial interest in the requested record or the 
information contained therein; or
    (2) Refer the responsibility for responding to the request to 
another agency that generated or originated the record, but only if that 
other agency is subject to the provisions of the FOIA.

Under ordinary circumstances, the agency that generated or originated a 
requested record shall be presumed to be the agency best able to 
determine whether to disclose the record in response to the request.
    (c) Law-enforcement information. Whenever a request is made for a 
record containing information that relates to an investigation of a 
possible violation of criminal law or to a criminal law-enforcement 
proceeding and that was generated or originated by another agency, the 
Office shall refer the responsibility for responding to the request to 
that other agency; however, such referral shall extend only to the 
information generated or originated by that other agency.
    (d) Classified information. Whenever a request is made for a record 
containing information that has been classified, or that may be eligible 
for classification, by another agency under the provisions of Executive 
Order 12356 or any other Executive Order concerning the classification 
of records, the Office shall refer the responsibility for responding to 
the request to the agency that classified the information or should 
consider the information for classification. Whenever a record contains 
information that has been derivatively classified by the Office because 
it contains information classified by another agency, the Office shall 
refer the responsibility for responding to the request to the agency 
that classified the underlying information; however, such referral shall 
extend only to the information classified by the other agency.
    (e) Notice of referral. Whenever the Office refers all or any part 
of the responsibility for responding to a request to another agency, the 
Office will consult with the other agency to obtain specific approval to 
notify the requester of the referral and inform the requester of the 
name and address of the agency to which the request has been referred 
and the portions of the request so referred.
    (f) Agreements regarding consultations and referrals. No provision 
of this section shall preclude formal or informal

[[Page 660]]

agreements between the Office and another agency to eliminate the need 
for consultations or referrals of requests or classes of requests.
    (g) Separate referrals of portions of a request. Portions of a 
request may be referred separately to one or more other agencies 
whenever necessary to process the request in accordance with the 
provisions of this section.
    (h) Date for determining responsive records. In determining records 
responsive to a request, the Office ordinarily will include only those 
records within the Office's possession and control as of the date of its 
receipt of the request.



Sec. 701.13  Form and content of Office responses.

    (a) Form of notice granting a request. After the Office has made a 
determination to grant a request in whole or in part, the Office 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 Office. The Office shall inform the requester in the 
notice of any fees to be charged in accordance with the provisions of 
Sec. 701.18 of this part.
    (b) Form of notice denying a request. The Office, when denying a 
request in whole or in part, shall so notify the requester in writing. 
The notice must be signed by the FOIA/PA Officer, or her 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 that the Office 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. 701.16(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 Office 
shall so notify the requester in writing.



Sec. 701.14  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, the Office shall review the 
information to determine whether it warrants classification. Information 
that does not warrant classification shall not be withheld from a 
requester on the basis of 5 U.S.C. 552(b)(1). The Office shall, upon 
receipt of any appeal involving classified or classifiable information, 
take appropriate action to ensure compliance with Executive Order 12356 
or any other Executive Order concerning the classification of records.



Sec. 701.15  Business information.

    (a) In general. Business information provided to the Office by a 
business submitter shall not be disclosed pursuant to a FOIA request 
except in accordance with this section.
    (b) Notice to business submitters. The Office shall provide a 
business submitter with prompt written notice of a request encompassing 
its business information whenever required under paragraph (c) of this 
section, except as is provided in paragraph (g) of this section, and 
only to the extent permitted by law. 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.
    (c) When notice is required. For business information submitted to 
the Office it shall provide a business submitter with notice of a 
request whenever the business submitter has in good faith designated the 
information as commercially or financially sensitive, or the Office has 
reason to believe that disclosure of the information may result in 
commercial or financial injury to the business submitter. Notice of a 
request for business information falling within the former category 
shall be required for a period of not more than ten years after the date 
of submission

[[Page 661]]

unless the business submitter requests, and provides acceptable 
justification for, a specific notice period of greater duration. 
Whenever possible, the submitter's claim of confidentiality should be 
supported by a statement or certification by an officer or authorized 
representative of the company that the information in question is in 
fact confidential commercial or financial information and has not been 
disclosed to the public.
    (d) Opportunity to object to disclosure. Through the notice 
described in paragraph (b) of this section, the Office shall afford a 
business submitter a reasonable period within which to provide the 
Office with a detailed statement of any objection to disclosure. Such 
statement shall specify all grounds for withholding any of the 
information under any exemption of the FOIA and, in the case of 
Exemption 4, shall demonstrate why the information is contended to be a 
trade secret or commecial or financial information that is privileged or 
confidential. Information provided by a business submitter pursuant to 
this paragraph may itself be subject to disclosure under the FOIA.
    (e) Notice of intent to disclose. (1) The Office shall consider 
carefully a business submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose business 
information. Whenever the Office decides to disclose business 
information over the objection of a business submitter, the Office shall 
forward to the business submitter a written notice which shall include:
    (i) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained;
    (ii) A description of the business information to be disclosed; and
    (iii) A specified disclosure date.
    (2) Such notice of intent to disclose shall be forwarded a 
reasonable number of days, as circumstances permit, prior to the 
specified date upon which disclosure is intended. A copy of such 
disclosure notice shall be forwarded to the requester at the same time.
    (f) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 
to compel disclosure of business information covered by paragraph (c) of 
this section, the Office shall promptly notify the business submitter.
    (g) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (1) The Office determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The Office is a criminal law-enforcement agency that acquired 
information in the course of a lawful investigation of a possible 
violation of criminal law.



Sec. 701.16  Appeals.

    (a) Appeals to Independent Counsel. When a request for access to 
records or for a waiver of fees has been denied in whole or in part, or 
when the Office 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 
Independent Counsel within 30 days of his receipt of a notice denying 
his request. An appeal to Independent Counsel shall be made in writing 
and addressed to the Office of Independent Counsel, Suite 701 West, 555 
Thirteenth Street NW., Washington, DC 20004. Both the envelope and the 
letter of appeal itself must be clearly marked: ``Freedom of Information 
Act Appeal.''
    (b) Action on appeals by the Office of Independent Counsel. Unless 
Independent Counsel otherwise directs, his designee shall act on behalf 
of the Independent Counsel on all appeals under this section, except 
that a denial of a request by Independent Counsel shall constitute the 
final action of the Office 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 United States District Court for the judicial 
district in which the requester resides

[[Page 662]]

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. 701.17  Preservation of records.

    The Office shall preserve all correspondence relating to the 
requests it receives under this part, 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 
United States Code. Under no circumstances shall records be destroyed 
while they are the subject of a pending request, appeal, or lawsuit 
under the FOIA.



Sec. 701.18  Fees.

    (a) In general. Fees pursuant to the FOIA shall be assessed 
according to the schedule contained in paragraph (b) of this section for 
services rendered by the Office in responding to and processing requests 
for records under this part. All fees so assessed shall be charged to 
the requester, except when the charging of fees is limited under 
paragraph (c) of this section or when a waiver or reduction of fees is 
granted under paragraph (d) of this section. The Office 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 part, 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 
paragraphs (j)(6), (j)(7), and (j)(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. The Office 
may assess fees for time spent searching even if it fails to locate any 
respective record or when records located are subsequently determined to 
be entirely exempt from disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and retrieving a requested record, the fee shall be $2.25. When the 
search and retrieval cannot be performed entirely by clerical personnel-
-for example, when the identification of records within the scope of the 
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. When 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). The 
Office 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 other 
methods of duplication, the Office shall charge the actual direct costs 
of duplicating a record.
    (3) Review. 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

[[Page 663]]

that when the time of professional personnel is required, the fee shall 
be $7.50 for each quarter hour of time spent by such managerial 
personnel. Review fees shall be assessed only for the initial record 
review, i.e., all of the review undertaken when the Office 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 subsequently 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 when 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), the Office 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 this section is $8.00 or 
less, no fee shall be charged.
    (4) The provisions of paragraphs (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 the FOIA shall be furnished without charge or at a charge reduced 
below that established under paragraph (b) of this section when the 
Officer determines, based upon information provided by a requester in 
support of a fee waiver request or otherwise made known to the Office, 
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 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 government--the 
Office 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 the identifiable operations 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 would 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 
or government operations or activities. The disclosable portions of 
requested records must be meaningfully informative or specific 
governmental 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

[[Page 664]]

segment of identified persons. A requester's identity and 
qualifications--e.g., expertise in the subject area and ability and 
intention to convey effectively 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. The 
Office 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--the Office 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. The Office 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 that 
would be furthered by the requested disclosure. In assessing the 
magnitude of identified commercial interests, consideration shall be 
given 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 when, 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. The Office 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 governmental 
information for direct economic return shall not be presumed to serve 
primarily the ``public interest.''
    (4) When 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 paragraphs (d) (2) and (3) of this section, as 
they apply to each record request.
    (e) Notice of anticipated fees in excess of $25.00. When the Office 
determines or estimates that the fees to be assessed under this section 
may amount to more than $25.00, the Office 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 Office shall advise the requester that the 
estimated fee may be

[[Page 665]]

only a portion of the total fee.) In cases when 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 Office personnel in order to reformulate his request to meet his 
needs at a lower cost.
    (f) Aggregating requests. When the Office 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 Office may aggregate any such requests and 
charge accordingly. The Office may presume that multiple requests of 
this type made within a 30-day period have been made in order to evade 
fees. When requests are separated by a longer period, the Office shall 
aggregate them only when there exists a solid basis for determining that 
such aggregation is warranted, e.g., when the requests involve clearly 
related matters. Multiple requests involving unrelated matters shall not 
be aggregated.
    (g) Advance payments. (1) When the Office 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 
when it receives a satisfactory assurance of full payment from a 
requester with a history of prompt payment or where a fee waiver, or 
reduction of fees, has been requested. In the case where a fee waiver or 
reduction of fees has been requested, the requester shall submit the 
advance payment, if required by the agency. This prepayment will not 
affect the Office's responsibility for speedy determination of the fee 
waiver, or reduction of fees, nor be deemed in derogation of the request 
for the fee waiver or reduction of fees. If the agency approves the fee 
waiver, or reduction of fees, the appropriate sum will be reimbursed to 
the requester, with no accumulated interest, if any.
    (2) When a requester has previously failed to pay a records access 
fee within 30 days of the date of billing, the Office may require the 
requester to pay the full amount owned, plus any applicable interest (as 
provided for in paragraph (h) of this section), and to make an advance 
payment of the full amount of may estimated fee before the Office 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 this section, the Office 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) When a component acts under paragraphs (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 Office has received payment of the assessed fee.
    (h) Charging interest. The Office 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 the 
Office, 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. 
The Office shall follow the provisions of the Debt Collection Act of 
1982, Public Law 97-265 (Oct. 25, 1982), 96 Stat. 1749, 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 priniting entity such as the 
Government Printing Office or the National Technical Information Service 
to set and collect fees for

[[Page 666]]

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 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) When records responsive to requests are maintained for 
distribution by agencies operating statutorily based fee schedule 
programs, the Office 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 that the Office 
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. The Office shall ensure, 
however, that searches are undertaken in the most efficient and least 
expensive manner reasonably possible; thus, for example, the Office 
shall not engage in line-by-line search when 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, microfilm, 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.
    (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. The Office shall 
determine, as well as reasonably possible, the use to which a requester 
will put the records requested. When 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 the 
Office otherwise has reasonable cause to doubt a requester's stated use, 
the Office shall provide the requester a reasonable opportunity to 
submit futher clarification.
    (6) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of graduate 
higher education, and 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

[[Page 667]]

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 when 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 
the Office 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, when the Office 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.



Sec. 701.19  Other rights and services.

    Nothing in this part 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. 552.

[[Page 669]]



  CHAPTER VIII--COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE 
                          DISTRICT OF COLUMBIA




  --------------------------------------------------------------------
Part                                                                Page
800             Organization and functions..................         671
801             Federal Tort Claims Act Procedure...........         672
802             Disclosure of Records.......................         674
810             Community Supervision: Administrative 
                    Sanctions...............................         691
811             Sex offender registration...................         692
812             Collection and use of DNA information.......         699

[[Page 671]]



PART 800--ORGANIZATION AND FUNCTIONS--Table of Contents




Sec.
800.1  Statutory authorization.
800.2  Mission.
800.3  Functions and responsibilities.
800.4  Director.
800.5  Agency components.

Appendix A to Part 800--Agency Addresses

    Authority: 5 U.S.C. 301; Pub. L. 105-33, 111 Stat. 251, 712 (D.C. 
Code 24-1232, 24-1233).

    Source: 66 FR 1261, Jan. 8, 2001, unless otherwise noted.



Sec. 800.1  Statutory authorization.

    The National Capital Revitalization and Self-Government Improvement 
Act of 1997 (``Revitalization Act'') established the Court Services and 
Offender Supervision Agency for the District of Columbia (``CSOSA'') 
within the federal government as an independent executive branch agency 
and placed the District of Columbia Pretrial Services Agency as an 
independent entity within CSOSA. In addition, the District of Columbia 
Public Defender Service, an independent District of Columbia agency, 
receives its appropriated federal funds through a transfer from CSOSA.



Sec. 800.2  Mission.

    CSOSA's mission is to increase public safety, prevent crime, reduce 
recidivism, and support the fair administration of justice in close 
collaboration with the community.



Sec. 800.3  Functions and responsibilities.

    (a) Community Supervision Services. (1) The Revitalization Act 
requires CSOSA to provide supervision, through qualified supervision 
officers, to offenders on probation, parole, and supervised release for 
violation of District of Columbia Code offenses. The Agency carries out 
its responsibilities on behalf of the court or agency having 
jurisdiction over the person being supervised. Accordingly, CSOSA 
supervises all offenders placed on probation by the Superior Court of 
the District of Columbia, and all individuals on parole pursuant to the 
District of Columbia Code. CSOSA supervises offenders from other 
jurisdictions in accordance with the provisions of the Interstate Parole 
and Probation Compact.
    (2) CSOSA is also required to determine uniform supervision and 
reporting practices, develop and operate intermediate sanctions programs 
for sentenced offenders, and arrange for the supervision of District of 
Columbia Code offenders in jurisdictions outside the District of 
Columbia.
    (3) In accordance with its supervisory functions and as authorized 
by the Sex Offender Registration Act of 1999 (D.C. Law 13-137, D.C. Code 
24-1101 et seq.), CSOSA operates and maintains the sex offender registry 
for the District of Columbia.
    (b) Pretrial Services. (1) The District of Columbia Pretrial 
Services Agency (``PSA'') assists the trial and appellate levels of both 
the federal and local courts in determining eligibility for pretrial 
release by providing verified background information and criminal 
histories on all arrestees and recommendations about available release 
options.
    (2) PSA is further responsible for supervising defendants released 
from custody during the pretrial period by monitoring compliance with 
conditions of release and by ensuring that they appear for scheduled 
court hearings.
    (3) PSA also provides defendants with the opportunity to participate 
in a variety of social intervention programs that decrease the 
likelihood of future criminal behavior.



Sec. 800.4  Director.

    (a) CSOSA is headed by a Director appointed by the President, by and 
with the advice and consent of the Senate, for a term of six years.
    (b) PSA is headed by a Director appointed by the Chief Judge of the 
United States Court of Appeals for the District of Columbia Circuit and 
the Chief Judge of the United States District Court for the District of 
Columbia in consultation with an Executive Committee. The Executive 
Committee includes the four chief judges of the local and Federal trial 
and appellate courts, the United States Attorney for the District of 
Columbia, the Director of the District of Columbia Public Defender 
Service, and the Director of CSOSA.

[[Page 672]]



Sec. 800.5  Agency components.

    (a) CSOSA.
    (1) Office of the Director (including the Deputy Director).
    (2) Office of the General Counsel.
    (3) Community Supervision Services.
    (4) Office of Community Justice Programs.
    (5) Special Criminal Justice Projects.
    (6) Office of Planning and Evaluation.
    (7) Office of Professional Responsibility.
    (8) Equal Employment Opportunity, Diversity, and Special Programs.
    (9) Office of Legislative, Intergovernmental, and Public Affairs.
    (10) Information Technology Services.
    (11) Office of Management and Administration.
    (12) Office of Human Resources.
    (b) PSA.
    (1) Office of the Director (including the Deputy Director).
    (2) Planning, Analysis and Evaluation.
    (3) Community Justice Programs.
    (4) Office of Operations (including Information Technology and 
Forensic Toxicology and Drug Testing Laboratory).
    (5) Human Resources Management.
    (6) Finance and Administration.

                Appendix A to Part 800--Agency Addresses

                           I. Central Offices

Court Services and Offender Supervision Agency for the District of 
Columbia, 633 Indiana Avenue, NW., Washington, DC 20004
CSOSA Community Supervision Services, 300 Indiana Avenue, NW., 
Washington, DC 20001
District of Columbia Pretrial Services Agency, 633 Indiana Avenue, NW., 
Washington, DC 20004

                            II. Field Offices

   Court Services and Offender Supervision Agency for the District of 
                 Columbia/Community Supervision Services

CSS Field Office, 409 E. Street, NW., Washington, DC 20001
CSS Field Office, 401 New York Avenue, NE., Washington, DC 20002
CSS Field Office, 1707 Kalorama Road, NW., Washington, DC 20009
CSS Field Office, 1418 Good Hope Road, SE., Washington, DC 20020
CSS Field Office, 3850 S. Capitol Street, SE., Washington, DC 20032
CSS Field Office, 1230 Taylor Street, NW., Washington, DC 20011

              District of Columbia Pretrial Services Agency

Office of Operations Branch, 300 Indiana Avenue, NW., Washington, DC 
20001
Office of Operations Branch, 500 Indiana Avenue, NW., Washington, DC 
20001
Office of Operations Branch, 333 Constitution Avenue, NW., Washington, 
DC 20001
Office of Operations Branch, 601 Indiana Avenue, NW., Washington, DC 
20004

                  III. FOIA/PA Requests (CSOSA and PSA)

Office of the General Counsel (FOIA), Court Services and Offender 
Supervision Agency for the District of Columbia, 633 Indiana Avenue, 
NW., Washington, DC 20004

    IV. Service of Process (CSOSA and PSA, except for PSA subpoenas)

Office of the General Counsel, Court Services and Offender Supervision 
Agency for the District of Columbia, 633 Indiana Avenue, NW., 
Washington, DC 20004

                     V. Tort Claims (CSOSA and PSA)

Office of the General Counsel, Court Services and Offender Supervision 
Agency for the District of Columbia, 633 Indiana Avenue, NW., 
Washington, DC 20004



PART 801--FEDERAL TORT CLAIMS ACT PROCEDURE--Table of Contents




Sec.
801.1  Claims filed under the Federal Tort Claims Act.
801.2  Filing a claim.
801.3  Processing the claim.
801.4  Final disposition of claim.

    Authority: 5 U.S.C. 301; Pub. L. 105-33, 111 Stat. 251, 712 (D.C. 
Code 24-1233); 28 CFR 14.11.

    Source: 67 FR 57948, Sept. 13, 2002, unless otherwise noted.



Sec. 801.1  Claims filed under the Federal Tort Claims Act.

    If an agency employee is acting within the scope of his or her 
employment and causes injury to a member of the public, any claim for 
money damages for personal injury, death, damage to property, or loss of 
property caused by the employee's negligent or wrongful act or omission 
is a claim against the

[[Page 673]]

United States and must first be presented by the injured party to the 
appropriate federal agency for administrative action under the Federal 
Tort Claims Act. General provisions for processing such administrative 
claims are contained in 28 CFR part 14. The provisions in this part 
supplement the general provisions in order to describe specific 
procedures to follow when filing a claim with the Court Services and 
Offender Supervision Agency for the District of Columbia (``CSOSA'') or 
the District of Columbia Pretrial Services Agency (``PSA'').



Sec. 801.2  Filing a claim.

    (a) Who may file the claim? You may file a claim for money damages 
against CSOSA or PSA if you believe that a CSOSA or PSA employee has 
injured you or has damaged or lost property that you own. You may file a 
claim on behalf of an injured or deceased person or owner of damaged or 
lost property if you are acting as agent, executor, administrator, 
parent, guardian, legal or other representative provided you submit 
evidence of your authority to act on behalf of the claimant.
    (b) What information do you need to submit in your claim? (1) The 
easiest way to ensure that you will include all necessary information 
for your claim is to submit a completed Standard Form 95 (``SF 95''). 
The SF 95 is available from the Office of the General Counsel, CSOSA, 
(see address in paragraph (c) of this section) and on the Internet at 
http://www.usdoj.gov/civil/forms/forms.htm.
    (2) If you do not use the SF 95, you must submit written 
notification of the incident that resulted in the injury, loss, or 
damage. Along with this notification, you must present a claim for money 
damages in a sum certain (that is, a precise dollar amount) for injury 
to or loss of property, personal injury, or death alleged to have 
occurred on the basis of the incident. Failure to include the precise 
dollar amount for your claim may mean that you will have difficulty 
pursuing your claim in court.
    (c) Where do you submit the claim? You should submit the claim 
(whether against CSOSA or PSA) directly to the Office of the General 
Counsel, CSOSA, 633 Indiana Avenue NW., Washington, DC 20004. Claims 
submitted to any other office of CSOSA or PSA are forwarded to the 
Office of the General Counsel.
    (d) When must you submit the claim? You must submit the claim so 
that CSOSA/PSA receives the claim within 2 years after the claim 
accrues. Mailing the claim by that date is not sufficient if CSOSA/PSA 
does not receive the claim by that date. Generally speaking, a claim 
accrues at the time of the injury. In those instances where neither the 
injury nor its cause is immediately apparent, the claim accrues when you 
discover (or reasonably should discover) the injury and its cause.
    (e) May you amend your claim? Yes, you may amend your claim at any 
time prior to final agency action or prior to your filing suit in court.



Sec. 801.3  Processing the claim.

    (a) Will CSOSA/PSA contact you about your claim? (1) If you have 
provided all necessary information to process your claim, you will 
receive an acknowledgement indicating the filing date (that is, the date 
CSOSA/PSA received your claim) and the assigned claim number. Refer to 
the claim number in any further correspondence you may have with CSOSA/
PSA on the claim.
    (2) If you have failed to include all necessary information, CSOSA/
PSA will return your claim to you with a request for the necessary 
additional information.
    (3) If your claim should have been filed with another agency, CSOSA/
PSA will forward the claim to the appropriate agency and notify you of 
the transfer, or return the claim to you if the appropriate agency 
cannot be determined or if the transfer is otherwise not feasible.
    (b) Who is responsible for offering settlement or denial on the 
claim? The General Counsel is responsible for investigating the claim 
and, after consultation with PSA (if the claim is against PSA) and the 
Department of Justice when appropriate, determining whether the claim 
should be settled or denied.
    (c) How long does CSOSA/PSA have to consider your claim? CSOSA/PSA 
has 6 months from the date of filing to make

[[Page 674]]

a settlement offer or to deny your claim. If you amend your claim (see 
Sec. 801.2(e)) or request that your claim be reconsidered (see 
Sec. 801.4(b)(1)), CSOSA/PSA has an additional 6 months from the date of 
the amendment or the filing of the request for reconsideration to make a 
final disposition of the claim.
    (d) Will appreciation or depreciation be considered? Yes, 
appreciation or depreciation is considered in settling a claim for lost 
or damaged property.



Sec. 801.4  Final disposition of claim.

    (a) What if you accept the settlement offer? If you accept a 
settlement offer, you give up your right to bring a lawsuit against the 
United States or against any employee of the government whose action or 
lack of action gave rise to your claim.
    (b) What if your claim is denied? (1) If your claim is denied, you 
have 30 days from the date of CSOSA/PSA's written notification to make a 
written request that the agency reconsider the denial.
    (2) If your claim is denied or you reject the settlement offer, you 
have 6 months from the date of mailing of CSOSA/PSA's notice of denial 
to file a civil action in the appropriate U.S. District Court.
    (c) What if you do not hear from CSOSA/PSA within 6 months of the 
filing date? If you do not hear from CSOSA/PSA within 6 months of the 
filing date for the claim, you may consider your claim denied. You may 
then proceed with filing a civil action in the appropriate U.S. District 
Court.



PART 802--DISCLOSURE OF RECORDS--Table of Contents




                           Subpart A--General

Sec.
802.1  Introduction.

                 Subpart B--Freedom of Information Act.

802.2  Purpose and scope.
802.3  Guidelines for disclosure.
802.4  Definitions.
802.5  Freedom of Information Act requests.
802.6  Documents from other agencies.
802.7  Denial of request.
802.8  Expedited processing.
802.9  Business information.
802.10  Fee schedule.

                         Subpart C--Privacy Act

802.11  Purpose and scope.
802.12  Definitions.
802.13  Verifying your identity.
802.14  Requests for access to records.
802.15  Denial of request.
802.16  Administrative appeal.
802.17  Documents from other agencies.
802.18  Correction or amendment of record.
802.19  Appeal of denial to correct or amend.
802.20  Accounting of disclosures.
802.21  Appeals.
802.22  Fees.
802.23  Use and disclosure of social security numbers.

    Subpart D--Subpoenas or Other Legal Demands for Testimony or the 
        Production or Disclosure of Records or Other Information

802.24  Purpose and scope.
802.25  Definitions.
802.26  Receipt of demand.
802.27  Compliance/noncompliance.

      Subpart E--Exemption of Record Systems Under the Privacy Act

802.28  Exemption of the Court Services and Offender Supervision System-
          -limited access.
802.29  Exemption of the Pretrial Services Agency System.

    Authority: 5 U.S.C. 301, 552, 552a; Pub. L. 105-33, 111 Stat. 251, 
712 (D.C. Code 24-1232, 24-1233).

    Source: 68 FR 32986, June 3, 2003, unless otherwise noted.

    Effective Date Note: At 68 FR 32986, June 3, 2003, part 802 was 
added, effective July 3, 2003.



                           Subpart A--General



Sec. 802.1  Introduction.

    This part contains regulations of the Court Services and Offender 
Supervision Agency for the District of Columbia (``CSOSA'' or 
``Agency'') and the District of Columbia Pretrial Services Agency 
(``PSA'' or ``Agency'') which implement the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a, and provide 
for the production of records in response to a demand from a court or 
other non-congressional authority in connection with a proceeding to 
which the Agency is not a party.

[[Page 675]]



                  Subpart B--Freedom of Information Act



Sec. 802.2  Purpose and scope.

    The purpose of this subpart is to establish procedures for the 
release of records in the possession of the Agency pursuant to the 
provisions of the FOIA.



Sec. 802.3  Guidelines for disclosure.

    (a) The authority to release or deny access to records and 
information under the FOIA is limited to the General Counsel and his or 
her designee.
    (b) An agency record will be released in response to a written 
request, unless a valid legal exemption to disclosure is asserted.
    (1) Any applicable exemption to disclosure which is provided under 
the FOIA in 5 U.S.C. 552 may be asserted.
    (2) A record must exist and be in the possession and control of the 
agency at the time of the request to be considered subject to this part 
and the FOIA. There is no obligation to create, compile, or obtain a 
record to satisfy a FOIA request.
    (3) Hard copy of electronic records that are subject to FOIA 
requests under 5 U.S.C. 552(a)(3), and that are available to the public 
through an established distribution system or through the Federal 
Register or the Internet, normally need not be processed under the 
provisions of the FOIA. However, if the requester insists that the 
request be processed under the FOIA, then the request shall be processed 
under the FOIA.



Sec. 802.4  Definitions.

    As used in this subpart, the following terms have the following 
meanings:
    (a) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 
552(f).
    (b) Appeal means a request for a review of the agency's 
determination with regard to a fee waiver, category of requester, 
expedited processing, or denial in whole or in part of a request for 
access to a record or records.
    (c) Business information means trade secrets or other commercial or 
financial information.
    (d) Business submitter means any entity which provides business 
information to the Agency and which has a proprietary interest in the 
information.
    (e) Computer software means tools by which records are created, 
stored, and retrieved. Normally, computer software, including source 
code, object code, and listings of source and object codes, regardless 
of medium, are not agency records. Proprietary (or copyrighted) software 
is not an agency record.
    (f) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt from 
release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 
552(b)(4), because disclosure could reasonably be expected to cause 
substantial competitive harm.
    (g) Duplication refers to the process of making a copy of a record 
in order 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.
    (h) Electronic records mean those records and information which are 
created, stored, and retrievable by electronic means. This ordinarily 
does not include computer software, which is a tool by which to create, 
store, or retrieve electronic records.
    (i) Request means any request for records made pursuant to 5 U.S.C. 
552(a)(3).
    (j) Requester means any person who makes a request for access to 
records.
    (k) Review, for fee purposes, refers to the process of examining 
records located in response to a commercial use request to determine 
whether any portion of any record located is permitted to be withheld. 
It also includes processing any records for disclosure; e.g., doing all 
that is necessary to excise them and otherwise prepare them for release.
    (l) 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 records. Searches may be done manually 
or by automated means.



Sec. 802.5  Freedom of Information Act requests.

    (a) Submission, processing, and release procedures. (1) Requests for 
any record (including policy) ordinarily will be

[[Page 676]]

processed pursuant to the Freedom of Information Act, 5 U.S.C. 552. Your 
request must be made in writing and addressed to the FOIA Officer, 
Office of the General Counsel, Court Services and Offender Supervision 
Agency, 633 Indiana Avenue, NW., Washington, DC 20004. The requester 
should clearly mark on the face of the letter and the envelope ``Freedom 
of Information Request.''
    (2) Your request will be considered received as of the date it is 
received by the FOIA Office. For quickest possible handling, you should 
mark both your request letter and the envelope ``Freedom of Information 
Act Request.''
    (3) Generally, all FOIA requests will be processed in the 
approximate order of receipt, unless the requester shows exceptional 
circumstances exist to justify an expedited response (see Sec. 802.8).
    (4) You must state in your request a firm agreement to pay the fees 
for search, duplication, and review as may ultimately be determined. The 
agreement may state the upper limit (but not less than $25) that the 
requester is willing to pay for processing the request. A request that 
fees be waived or reduced may accompany the agreement to pay fees and 
will be considered to the extent that such request is made in accordance 
with Sec. 802.4(b) and provides supporting information to be measured 
against the fee waiver standard set forth in Sec. 802.9(g). The 
requester shall be notified in writing of the decision to grant or deny 
the fee waiver. If a requester has an outstanding balance of search, 
review, or duplication fees due for FOIA request processing, the 
requirements of this paragraph are not met until the requester has 
remitted the outstanding balance due.
    (b) Description of records sought. You must describe the records 
that you seek in enough detail to enable Agency personnel to locate them 
with a reasonable amount of effort. Whenever possible, your request 
should include specific information about each record sought, such as 
the date, title or name, author, recipient and subject matter of the 
record. As a general rule, the more specific you are about the records 
or type of records that you want, the more likely the Agency will be 
able to locate the records in response to your request. If a 
determination is made that your request does not reasonably describe 
records, the Agency will tell you either what additional information is 
needed or why your request is otherwise insufficient. You will be given 
the opportunity to discuss your request so that you may modify it to 
meet the requirements of this section.
    (1) If a document contains information exempt from disclosure, any 
reasonably segregable portion of the record will be provided to you 
after deletion of the exempt portions.
    (2) You will be notified of the decision on the request within 20 
days after its receipt (excluding Saturdays, Sundays, and legal public 
holidays).



Sec. 802.6  Documents from other agencies.

    (a) Documents from or relating to Federal agencies. (1) When a 
request for records includes a document from another Federal agency, the 
document will be referred to the originating Federal agency for a 
determination of its releasability. The requester will be informed of 
the referral. This is not a denial of a FOIA request; thus no appeal 
rights accrue to the requester.
    (2) When a FOIA request is received for a record created by the 
Agency that includes information originated by another federal agency, 
the record will be referred to the originating agency for review and 
recommendation on disclosure. The Agency will not release any such 
record without prior consultation with the originating agency.
    (b) Documents from non-Federal agencies. When a request for records 
includes a document from a non-Federal agency, CSOSA staff must make a 
determination of its releasability.



Sec. 802.7  Denial of request.

    (a) Denial in whole or in part. If it is determined that the request 
for records should be denied in whole or in part, the requester shall be 
notified by mail. The letter of notification shall:
    (1) State the exemptions relied on in not granting the request;
    (2) If technically feasible, indicate the amount of information 
deleted at

[[Page 677]]

the place in the record where such deletion is made (unless providing 
such indication would harm an interest protected by the exemption relied 
upon to deny such material);
    (3) Set forth the name and title or position of the responsible 
official;
    (4) Advise the requester of the right to administrative appeal in 
accordance with paragraph (c) of this section; and
    (5) Specify the official or office to which such appeal shall be 
submitted.
    (b) No records found. If it is determined, after a thorough search 
for records by the responsible official or his delegate, that no records 
have been found to exist, the responsible official will so notify the 
requester in writing. The letter of notification will advise the 
requester of the right to administratively appeal the determination that 
no records exist (i.e., to challenge the adequacy of the search for 
responsive records) in accordance with paragraph (c) of this section. 
The response shall specify the official or office to which the appeal 
shall be submitted for review.
    (c) Administrative appeal. (1) A requester may appeal an initial 
determination when:
    (i) Access to records has been denied in whole or in part;
    (ii) There has been an adverse determination of the requester's 
category as provided in Sec. 802.10(d);
    (iii) A request for fee waiver or reduction has been denied; or
    (iv) It has been determined that no responsive records exist.
    (2) Appeals must be made within 30 days of the receipt of the letter 
denying the request. Both the envelope and the letter of appeal should 
be sent to the Office of the General Counsel, Court Services and 
Offender Supervision Agency, 633 Indiana Avenue, NW., Room 1220, 
Washington, DC 20004 and must be clearly marked ``Freedom of Information 
Act Appeal.''
    (3) The General Counsel will make an appeal determination within 20 
days (excluding Saturdays, Sundays, and holidays) from the date of 
receipt of the appeal. However, for a good reason, this time limit may 
be extended up to an additional 10 days. If, after review, the General 
Counsel determines that additional information should be released, it 
will accompany the appeal response. If, after review, the General 
Counsel determines to uphold the initial review, we will inform you.



Sec. 802.8  Expedited processing.

    (a) Requests and appeals will be taken out of order and given 
expedited treatment whenever staff determines that they involve:
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual. The requester must fully explain the 
circumstances warranting such an expected threat so that the Agency may 
make a reasoned determination.
    (2) With respect to a request made by a person primarily engaged in 
disseminating information, a matter of widespread and exceptional media 
interest in which there exist possible questions about the government's 
integrity which affect public confidence. A person ``primarily engaged 
in disseminating information'' does not include individuals who are 
engaged only incidentally in the dissemination of information. The 
standard of ``widespread and exceptional media interest'' requires that 
the records requested pertain to a matter of current exigency to the 
American public and that delaying a response to a request for records 
would compromise a significant recognized interest to and throughout the 
general public. The requester must adequately explain the matter or 
activity and why it is necessary to provide the records being sought on 
an expedited basis.
    (b) If you seek expedited processing, you must submit a statement, 
certified to be true and correct to the best of your knowledge and 
belief. The statement must be in the form prescribed by 28 U.S.C. 1746, 
``I declare under penalty of perjury that the foregoing is true and 
correct to the best of my knowledge and belief. Executed on [date].''
    (c) The determination as to whether to grant or deny the request for 
expedited processing will be made, and the requester notified, within 
ten days after the date of the request. Because a decision to take a 
FOIA request out of order delays other requests, simple

[[Page 678]]

fairness demands that such a decision be made by the FOIA Officer only 
upon careful scrutiny of truly exceptional circumstances. The decision 
will be made solely based on the information contained in the initial 
letter requesting expedited processing.
    (d) Appeals of initial determinations to deny expedited processing 
must be made promptly. Both the envelope and the letter of appeal should 
be sent to the Office of the General Counsel, Court Services and 
Offender Supervision Agency, 633 Indiana Avenue, NW., Room 1220, 
Washington, DC 2004 and must be clearly marked ``Expedited Processing 
Appeal.''
    (e) The General Counsel will make an appeal determination regarding 
expedited processing as soon as practicable.



Sec. 802.9  Business information.

    (a) In general. Business information provided to the Agency by a 
business submitter will not be disclosed pursuant to a Freedom of 
Information Act request except in accordance with this section. Any 
claim of confidentiality must be supported by a statement by an 
authorized representative of the company providing specific 
justification that the information in question is in fact confidential 
commercial or financial information and has not been disclosed to the 
public.
    (b) Notice to business submitters. The Agency will provide a 
business submitter with prompt written notice of receipt of a request or 
appeal encompassing its business information whenever required in 
accordance with paragraph (c) of this section, and except as is provided 
in paragraph (g) 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 of records containing the 
business information.
    (c) When notice is required. (1) Notice of a request for business 
information falling within paragraph (c)(2)(i) or (ii) of this section 
will be required for a period of not more than ten years after the date 
of submission unless the business submitter had requested, and provided 
acceptable justification for, a specific notice period of greater 
duration.
    (2) The Agency shall provide a business submitter with notice of 
receipt of a request or appeal whenever:
    (i) The business submitter has in good faith designated the 
information as commercially or financially sensitive information, or
    (ii) The Agency has reason to believe that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (d) Opportunity to object to disclosure. (1) Through the notice 
described in paragraph (b) of this section, the Agency shall afford a 
business submitter ten days from the date of the notice (exclusive of 
Saturdays, Sundays, and legal public holidays) to provide a detailed 
statement of any objection to disclosure. Such statement shall specify 
why the business submitter believes the information is considered to be 
a trade secret or commercial or financial information that is privileged 
or confidential. Information provided by a business submitter pursuant 
to this paragraph might itself be subject to disclosure under the FOIA.
    (2) When notice is given to a submitter under this section, the 
requester shall be advised that such notice has been given to the 
submitter. The requester shall be further advised that a delay in 
responding to the request may be considered a denial of access to 
records and that the requester may proceed with an administrative appeal 
or seek judicial review, if appropriate. However, the requester will be 
invited to agree to a voluntary extension of time so that staff may 
review the business submitter's objection to disclose.
    (e) Notice of intent to disclose. The Agency will consider carefully 
a business submitter's objections and specific grounds for nondisclosure 
prior to determining whether to disclose business information. Whenever 
a decision to disclose business information over the objection of a 
business submitter is made, the Agency shall forward to the business 
submitter a written notice which shall include:
    (1) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained;
    (2) A description of the business information to be disclosed; and

[[Page 679]]

    (3) A specified disclosure date which is not less than ten days 
(exclusive of Saturdays, Sundays, and legal public holidays) after the 
notice of the final decision to release the requested information has 
been mailed to the submitter.
    (f) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 
to compel disclosure of business information covered by paragraph (c) of 
this section, the Agency shall promptly notify the business submitter.
    (g) Exception to notice requirement. The notice requirements of this 
section shall not apply if:
    (1) The Agency determines that the information shall not be 
disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).



Sec. 802.10  Fee schedule.

    (a) The fees described in this section conform to the Office of 
Management and Budget Uniform Freedom of Information Act Fee Schedule 
and Guidelines. They reflect direct costs for search, review (in the 
case of commercial requesters), and duplication of documents, collection 
of which is permitted by the FOIA. However, for each of these 
categories, the fees may be limited, waived, or reduced for the reasons 
given below or for other reasons.
    (b) The term direct costs means those expenditures the agency 
actually makes in searching for, review (in the case of commercial 
requesters), and duplicating documents to respond to a FOIA request.
    (c) Fees shall be charged in accordance with the schedule contained 
in paragraph (i) of this section for services rendered in responding to 
requests for records, unless any one of the following applies:
    (1) Services were performed without charge;
    (2) The fees were waived or reduced in accordance with paragraph (f) 
of this section.
    (d) Specific levels of fees are prescribed for each of the following 
categories of requesters.
    (1) Commercial use requesters. These requesters are assessed 
charges, which recover the full direct costs of searching for, 
reviewing, and duplicating the records sought. Commercial use requesters 
are not entitled to two hours of free search time or 100 free pages of 
duplication of documents. Moreover, when a request is received for 
disclosure that is primarily in the commercial interest of the 
requester, the Agency is not required to consider a request for a waiver 
or reduction of fees based upon the assertion that disclosure would be 
in the public interest. The Agency may recover the cost of searching for 
and reviewing records even if there is ultimately no disclosure of 
records, or no records are located.
    (2) Educational and non-commercial scientific institution 
requesters. Records shall be provided to requesters in these categories 
for the cost of duplication alone, excluding charges for the first 100 
pages. To be eligible, requesters must show that the request is made 
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 (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. These categories do not include requesters who 
want records for use in meeting individual academic research or study 
requirements.
    (3) Requesters who are representatives of the news media. Records 
shall be provided to requesters in this category for the cost of 
duplication alone, excluding charges for the first 100 pages.
    (4) All other requesters. Requesters who do not fit any of the 
categories described in paragraphs (d)(1) through (3) of this section 
shall be charged fees that will recover the full direct cost of 
searching for and duplicating records that are responsive to the 
request, except that the first 100 pages of duplication and the first 
two hours of search time shall be furnished without charge. The Agency 
may recover the cost of searching for records even if there is 
ultimately no disclosure of records, or no records are located. Requests 
from persons for records about themselves

[[Page 680]]

filed in a systems of records shall continue to be treated under the fee 
provisions of the Privacy Act of 1974 which permit fees only for 
duplication.
    (e) Fee waiver determination. Where the initial request includes a 
request for reduction or waiver of fees, the responsible official shall 
determine whether to grant the request for reduction or waiver before 
processing the request and notify the requester of this decision. If the 
decision does not waive all fees, the responsible official shall advise 
the requester of the fact that fees shall be assessed and, if 
applicable, payment must be made in advance pursuant to paragraph (g) of 
this section.
    (f) Waiver or reduction of fees. (1) Fees may be waived or reduced 
on a case-by-case basis in accordance with this paragraph by the 
official who determines the availability of the records, provided such 
waiver or reduction has been requested in writing. Fees shall be waived 
or reduced by this official when it is determined, based upon the 
submission of the requester, that a waiver or reduction of the fees is 
in the public interest because furnishing the information is likely to 
contribute significantly to public understanding of the operations or 
activities of the government and is not primarily in the commercial 
interest of the requester. Fee waiver/reduction requests shall be 
evaluated against the current fee waiver policy guidance issued by the 
Department of Justice.
    (2) Appeals from denials of requests for waiver or reduction of fees 
shall be decided in accordance with the criteria set forth in this 
section by the official authorized to decide appeals from denials of 
access to records. Appeals shall be addressed in writing to the Office 
of the General Counsel, Court Services and Offender Supervision Agency, 
Office of the General Counsel, 633 Indiana Avenue, NW., Washington, DC 
20004 within 30 days of the denial of the initial request for waiver or 
reduction and shall be decided within 20 days (excluding Saturdays, 
Sundays and holidays).
    (3) Appeals from an adverse determination of the requester's 
category as described in paragraphs (d)(1) through (3) of this section 
shall be decided by the official authorized to decide appeals from 
denials of access to records and shall be based upon a review of the 
requester's submission and the Agency's own records. Appeals shall be 
addressed in writing to the office or officer specified in 
Sec. 802.7(c)(2) within 30 days of the receipt of the Agency's 
determination of the requester's category and shall be decided within 20 
days (excluding Saturdays, Sundays, and holidays).
    (g) Advance notice of fees. (1) When the fees for processing the 
request are estimated to exceed the limit set by the requester, and that 
amount is less than $250.00, the requester shall be notified of the 
estimated costs. The requester must provide an agreement to pay the 
estimated costs; however, the requester will also be given an 
opportunity to reformulate the request in an attempt to reduce fees.
    (2) If the requester has failed to state a limit and the costs are 
estimated to exceed $250.00, the requester shall be notified of the 
estimated costs and must pre-pay such amount prior to the processing of 
the request, or provide satisfactory assurance of full payment if the 
requester has a history of prompt payment of FOIA fees. The requester 
will also be given an opportunity to reformulate the request in an 
attempt to reduce fees.
    (h) Form of payment. (1) Payment may be made by check or money order 
payable to the Treasury of the United States.
    (2) The Court Services and Offender Supervision Agency reserves the 
right to request prepayment after a request is processed and before 
documents are released in the following circumstances.
    (i) When costs are estimated or determined to exceed $250.00, the 
Agency shall either obtain satisfactory assurance of full payment of the 
estimated cost where the requester has a history of prompt payment of 
FOIA fees or require the requester to make an advance payment of the 
entire estimated or determined fee before continuing to process the 
request.
    (ii) If a requester has previously failed to pay a fee within 30 
days of the date of the billing, the requester shall be required to pay 
the full amount owed plus any applicable interest, and to make an 
advance payment of the

[[Page 681]]

full amount of the estimated fee before the Agency begins to process a 
new request or the pending request. Whenever interest is charged, the 
Agency shall begin assessing interest on the 31st day following the day 
on which billing was sent. Interest shall be at the rate prescribed in 
31 U.S.C. 3717.
    (i) Amounts to be charged for specific services. The fees for 
services performed by an employee of the Agency shall be imposed and 
collected as set forth in this paragraph.
    (1) Duplicating records. All requesters, except commercial 
requesters, shall receive the first 100 pages duplicated without charge; 
the first two hours of search time free; or charge which total $10.00 or 
less. Fees for the copies are to be calculated as follows:
    (i) The duplication cost is calculated by multiplying the number of 
pages in excess of 100 by $0.25.
    (ii) Photographs, films, and other materials--actual cost of 
duplication.
    (iii) Other types of duplication services not mentioned above--
actual cost.
    (iv) Material provided to a private contractor for copying shall be 
charged to the requester at the actual cost charged by the private 
contractor.
    (2) Search services. The cost of search time is calculated by 
multiplying the number of quarter hours in excess of two hours by the 
following rates for the staff conducting the search:
    (i) $7.00 per quarter hour for clerical staff;
    (ii) $10.00 per quarter hour for professional staff; and
    (iii) $14.00 per quarter hour for managerial personnel.
    (3) Only fees in excess of $10.00 will be assessed. This means that 
the total cost must be greater than $10.00, either for the cost of the 
search (for time in excess of two hours), for the cost of duplication 
(for pages in excess of 100), or for both costs combined.
    (j) Searches for electronic records. The Agency shall charge for 
actual direct cost of the search, including computer search time, runs, 
and the operator's salary. The fee for computer output shall be actual 
direct costs. For requesters in the ``all other'' category, when the 
cost of the search (including the operator time and the cost of 
operating the computer to process a request) equals the equivalent 
dollar amount of two hours of the salary of the person performing the 
search (i.e., the operator), the charge for the computer search will 
begin.
    (k) Aggregating requests. When the Agency reasonably believes that a 
requester or group of requesters is attempting to break a request down 
into a series of requests for the purpose of evading the assessment of 
fees, the Agency shall aggregate any such requests and charge 
accordingly.



                         Subpart C--Privacy Act



Sec. 802.11  Purpose and scope.

    The regulations in this subpart apply to all records which are 
contained in a system of records maintained by the Agency and which are 
retrieved by an individual's name or personal identifier. This subpart 
implements the Privacy Act by establishing Agency policy and procedures 
providing for the maintenance of and guaranteed access to records. Under 
these procedures:
    (a) You can ask us whether we maintain records about you or obtain 
access to your records; and
    (b) You may seek to have your record corrected or amended if you 
believe that your record is not accurate, timely, complete, or relevant.



Sec. 802.12  Definitions.

    As used in this subpart, the following terms shall have the 
following meanings:
    (a) Agency has the meaning as defined in 5 U.S.C. 552(e).
    (b) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (c) Maintain includes maintain, collect, use, or disseminate.
    (d) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Agency. This includes, but 
is not limited to, the individual's education, financial transactions, 
medical history, and criminal or employment history and that contains 
the name, or an identifying number, symbol, or other identifying 
particular assigned to the individual, such as a fingerprint or a 
photograph.

[[Page 682]]

    (e) System of records means a group of any records under the control 
of the Agency from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual.
    (f) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or part in making any determination about an identifiable 
individual, except as provided by 13 U.S.C. 8.
    (g) Routine use means the disclosure of a record that is compatible 
with the purpose for which the record was collected.
    (h) Request for access means a request made pursuant to 5 U.S.C. 
552a(d)(1).
    (i) Request for amendment means a request made pursuant to 5 U.S.C. 
552a(d)(2).
    (j) Request for accounting means a request made pursuant to 5 U.S.C. 
552a(c)(3).



Sec. 802.13  Verifying your identity.

    (a) Requests for your own records. When you make a request for 
access to records about yourself, you must verify your identity. You 
must state your full name, current address, and date and place of birth. 
You must sign your request and your signature must either be notarized 
or submitted by you under 28 U.S.C. 1746. In order to help the 
identification and location of requested records, you may also, at your 
option, include your social security number.
    (b) Requests on behalf of another. Information that concerns an 
individual and that is contained in a system of records maintained by 
the Agency shall not be disclosed to any person, or to another agency, 
except under the provisions of the Privacy Act, 5 U.S.C. 552a, or the 
Freedom of Information Act, 5 U.S.C. 552.
    (c) Disclosure criteria. Staff may disclose information from an 
agency system of records only if one or more of the following criteria 
apply:
    (1) With the written consent of the individual to whom the record 
pertains.
    (2) Pursuant to a specific exception listed under the Privacy Act (5 
U.S.C. 552a(b)). For example, specific exceptions allow disclosure:
    (i) To employees within the Agency who have a need for the record in 
the performance of their duties.
    (ii) If disclosure is required under FOIA when the public interest 
in disclosure of the information outweighs the privacy interest 
involved.
    (iii) For a routine use described in the agency system of records as 
published in the Federal Register.
    (A) The published notices for these systems describe the records 
contained in each system and the routine uses for disclosing these 
records without first obtaining the consent of the person to whom the 
records pertain.
    (B) CSOSA publishes notices of system of records, including all 
pertinent routine uses, in the Federal Register.



Sec. 802.14  Requests for access to records.

    (a) Submission and processing procedures. (1) Requests for any 
agency record about yourself ordinarily will be processed pursuant to 
the Privacy Act, 5 U.S.C. 552a. Such a request must be made in writing 
and addressed to the FOIA Officer, Office of the General Counsel, Court 
Services and Offender Supervision Agency, 633 Indiana Avenue, NW., 
Washington, DC 20004. The requester should clearly mark on the face of 
the letter and the envelope ``Privacy Act Request.''
    (2) Your request will be considered received as of the date it is 
received by the Office of the General Counsel. For quickest possible 
handling, you should mark both your request letter and the envelope 
``Privacy Act Request.''
    (3) You must describe the records that you seek in enough detail to 
enable Agency personnel to locate them with a reasonable amount of 
effort. Whenever possible, your request should include specific 
information about each record sought, such as the date, title or name, 
author, recipient and subject matter of the record. As a general rule, 
the more specific you are about the records or type of records that you 
want, the more likely the Agency will be able to locate the records in 
response to your request. If a determination is made that your request 
does not reasonably describe records, the Agency will tell you either 
what additional

[[Page 683]]

information is needed or why your request is otherwise insufficient. You 
will be given the opportunity to discuss your request so that you may 
modify it to meet the requirements of this section.
    (b) Release and review procedures. Upon written request by an 
individual to gain access to his or her records which are not otherwise 
exempted, CSOSA shall permit the individual and, upon the individual's 
request, a person of his or her choosing to accompany him or her, to 
review the record and have a copy of all or any portion of the record. 
If a document contains information exempt from disclosure under the 
Privacy Act, any reasonably segregable portion of the record will be 
provided to the requester after deletion of the exempt portions.
    (2) A requester will be notified of the decision on the request in 
writing.
    (3) Generally, all Privacy Act requests will be processed in the 
approximate order of receipt, unless the requester shows exceptional 
circumstances exist to justify an expedited response (see Sec. 802.8).



Sec. 802.15  Denial of request.

    (a) Denial in whole or in part. If it is determined that the request 
for records should be denied in whole or in part, the requester shall be 
notified by mail. The letter of notification shall:
    (1) State the PA and FOIA exemptions relied on in not granting the 
request;
    (2) If technically feasible, indicate the amount of information 
deleted at the place in the record where such deletion is made (unless 
providing such indication would harm an interest protected by the 
exemption relied upon to deny such material);
    (3) Set forth the name and title or position of the responsible 
official;
    (4) Advise the requester of the right to an administrative appeal in 
accordance with Sec. 802.16; and
    (5) Specify the official or office to which such appeal shall be 
submitted.
    (b) No records found. If it is determined, after a thorough search 
for records by the responsible official or his delegate, that no records 
have been found to exist, the responsible official will so notify the 
requester in writing. The letter of notification will advise the 
requester of the right to administratively appeal the determination that 
no records exist (i.e., to challenge the adequacy of the search for 
responsive records) in accordance with Sec. 802.16. The notification 
shall specify the official or office to which the appeal shall be 
submitted for review.



Sec. 802.16  Administrative appeal.

    (a) A requester may appeal an Agency initial determination when:
    (1) Access to records has been denied in whole or in part; or
    (2) It has been determined that no responsive records exist.
    (b) Appeals of initial determinations must be made within 30 days of 
the receipt of the letter denying the request. Both the envelope and the 
letter of appeal should be sent to the Office of the General Counsel, 
Court Services and Offender Supervision Agency, 633 Indiana Avenue, NW., 
Room 1220, Washington, DC 20004 and must be clearly marked ``Privacy Act 
Appeal.''
    (c) The General Counsel will make an appeal determination within 30 
days (excluding Saturdays, Sundays, and holidays) from the date of 
receipt of the appeal. However, for a good reason, this time limit may 
be extended. If, after review, the General Counsel determines that 
additional information should be released, it will accompany the appeal 
response. If, after review, the General Counsel determines to uphold the 
initial review, we will inform you of that decision.



Sec. 802.17  Documents from other agencies.

    (a)(1) Documents from or pertaining to Federal agencies. When a 
request for records includes a document from another Federal agency, the 
document will be referred to the originating Federal agency for a 
determination of its releasability. The requester will be informed of 
the referral. This is not a denial of a Privacy Act request; thus no 
appeal rights accrue to the requester.
    (2) When a Privacy Act request is received for a record created by 
the Agency that includes information originated by another Federal 
agency,

[[Page 684]]

the record will be referred to the originating agency for review and 
recommendation on disclosure. The Agency will not release any such 
record without prior consultation with the originating agency.
    (b) Documents from non-Federal agencies. When a request for records 
includes a document from a non-Federal agency, CSOSA staff must make a 
determination of its releasability.



Sec. 802.18  Correction or amendment of records.

    This section applies to all records kept by the Agency except for 
records of earnings. If you believe your record is not accurate, 
relevant, timely, or complete, you may request that your record be 
corrected or amended. A request for correction or amendment must 
identify the particular record in question, state the correction or 
amendment sought, and set forth the justification for the correction. To 
amend or correct your record, you should write to the Office of the 
General Counsel identified in Sec. 802.14(a)(1). You should submit any 
available evidence to support your request. Both the request and the 
envelope must be clearly marked ``Privacy Act Correction Request.'' Your 
request should indicate:
    (a) The system of records from which the record is retrieved;
    (b) The particular record which you want to correct or amend;
    (c) Whether you want to add, delete or substitute information in the 
records; and
    (d) Your reasons for believing that your record should be corrected 
or amended.



Sec. 802.19  Appeal of denial to correct or amend.

    (a) The system manager may grant or deny requests for correction of 
agency records. One basis for denial may be that the records are 
contained in an agency system of records that has been published in the 
Federal Register and exempted from the Privacy Act provisions allowing 
amendment and correction.
    (1) Any denial of a request for correction should contain a 
statement of the reason for denial and notice to the requester that the 
denial may be appealed to the General Counsel by filing a written 
appeal.
    (2) The appeal should be marked on the face of the letter and the 
envelope, ``PRIVACY APPEAL--DENIAL OF CORRECTION,'' and be addressed to 
the Office of the General Counsel, address cited at Sec. 802.14(a)(1).
    (3) The General Counsel will review your request within 30 days from 
the date of receipt. However, for a good reason, this time limit may be 
extended. If, after review, the General Counsel determines that the 
record should be corrected, the record will be corrected. If, after 
review, the General Counsel refuses to amend the record exactly as you 
requested, we will inform you:
    (i) That your request has been refused and the reason;
    (ii) That this refusal is the Agency's final decision;
    (iii) That you have a right to seek court review of this request to 
amend the record; and
    (iv) That you have a right to file a statement of disagreement with 
the decision. Your statement should include the reason you disagree. We 
will make your statement available to anyone to whom the record is 
subsequently disclosed, together with a statement of our reasons for 
refusing to amend the record.
    (b) Requests for correction of records prepared by other federal 
agencies shall be forwarded to that agency for appropriate action and 
the requester will be immediately notified of the referral in writing.
    (c) When the request is for correction of non-Federal records, the 
requester will be advised to write to that non-Federal entity.



Sec. 802.20  Accounting of disclosures.

    (a) We will provide an accounting of all disclosures of a record for 
five years or until the record is destroyed, whichever is longer, except 
that no accounting will be provided to the record subject for 
disclosures made to law enforcement agencies and no accounting will be 
made for:
    (1) Disclosures made under the FOIA;
    (2) Disclosures made within the agency; and

[[Page 685]]

    (3) Disclosures of your record made with your written consent.
    (b) The accounting will include:
    (1) The date, nature, and purpose of the disclosure; and
    (2) The name and address of the person or entity to whom the 
disclosure is made.
    (c) You may request access to an accounting of disclosures of your 
record. Your request should be in accordance with the procedures in 
Sec. 802.14. You will be granted access to an accounting of the 
disclosures of your record in accordance with the procedures of this 
part which govern access to the related record, excepting disclosures 
made for an authorized civil or criminal law enforcement agency as 
provided by subsection (c)(3) of the Privacy Act. You will be required 
to provide reasonable identification.



Sec. 802.21  Appeals.

    You may appeal a denial of a request for an accounting to the Office 
of the General Counsel in the same manner as a denial of a request for 
access to records (See Sec. 802.16) and the same procedures will be 
followed.



Sec. 802.22  Fees.

    The Agency shall charge fees under the Privacy Act for duplication 
of records only. These fees shall be at the same rate the Agency charges 
for duplication fees under the Freedom of Information Act (See 
Sec. 802.10(i)(1)).



Sec. 802.23  Use and disclosure of social security numbers.

    (a) In general. An individual shall not be denied any right, 
benefit, or privilege provided by law because of such individual's 
refusal to disclose his or her social security number.
    (b) Exceptions. The provisions of paragraph (a) of this section do 
not apply with respect to:
    (1) Any disclosure which is required by Federal statute, or
    (2) The disclosure of a social security number to any Federal, 
State, or local agency maintaining a system of records in existence and 
operating before January 1, 1975, if such disclosure was required under 
statute or regulation adopted prior to such date to verify the identity 
of an individual.
    (c) Requests for disclosure of social security number. If the Agency 
requests an individual to disclose his or her social security account 
number, we shall inform that individual whether:
    (1) Disclosure is mandatory or voluntary.
    (2) By what statutory or other authority such number is solicited, 
and
    (3) What uses will be made of it.



    Subpart D--Subpoenas or Other Legal Demands for Testimony or the 
        Production or Disclosure of Records or Other Information



Sec. 802.24  Purpose and scope.

    (a) These regulations state the procedures which the Court Services 
and Offender Supervision Agency (``CSOSA'' or ``Agency'') and the 
District of Columbia Pretrial Services Agency (``PSA'' or ``Agency'') 
follow in response to a demand from a Federal, state, or local 
administrative body for the production and disclosure of material in 
connection with a proceeding to which the Agency is not a party.
    (b) These regulations do not apply to congressional requests. 
Neither do these regulations apply in the case of an employee making an 
appearance solely in his or her private capacity in judicial or 
administrative proceedings that do not relate to the Agency (such as 
cases arising out of traffic accidents, domestic relations, etc.).
    (c) This part is not intended and does not create 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 or specifically 
CSOSA or PSA.



Sec. 802.25  Definitions.

    Demand means a request, order, or subpoena for testimony or 
documents to use in a legal proceeding.
    Employee includes a person employed in any capacity by CSOSA or PSA, 
currently or in the past; any person appointed by, or subject to the 
supervision, jurisdiction, or control of the head of the Agency, or any 
Agency official, currently or in the past. A person who is subject to 
the Agency's jurisdiction or control includes any person

[[Page 686]]

who hired as a contractor by the agency, any person performing services 
for the agency under an agreement, and any consultant, contractor, or 
subcontractor of such person. A former employee is also considered an 
employee only when the matter about which the person would testify is 
one in which he or she was personally involved while at the Agency, or 
where the matter concerns official information that the employee 
acquired while working at the Agency, such as sensitive or confidential 
agency information.
    Legal Proceeding includes any pretrial, trial, and post-trial state 
of any existing or reasonably anticipated judicial or administrative 
action, hearing, investigation, or similar proceeding before a court, 
commission, board, agency, or other tribunal, authority or entity, 
foreign or domestic. Legal proceeding also includes any deposition or 
other pretrial proceeding, including a formal or informal request for 
testimony made by an attorney or other person, or a request for 
documents gathered or drafted by an employee.



Sec. 802.26  Receipt of demand.

    If, in connection with a proceeding to which the Agency is not a 
party, an employee receives a demand from a court or other authority for 
material contained in the Agency's files, any information relating to 
material contained in the Agency's files, or any information or material 
acquired by an employee as a part of the performance of that person's 
official duties or because of that person's official status, the 
employee must:
    (a) Immediately notify the Office of the General Counsel and forward 
the demand to the General Counsel if the demand pertains to CSOSA; or
    (b) Immediately notify the Deputy Director of PSA and forward the 
demand to the Deputy Director if the demand pertains to PSA.



Sec. 802.27  Compliance/noncompliance.

    The General Counsel is responsible for determining if CSOSA should 
comply or not comply with the demand, and the Deputy Director of PSA is 
responsible for determining if PSA should comply with the demand.
    (a) An employee may not produce any documents, or provide testimony 
regarding any information relating to, or based upon Agency documents, 
or disclose any information or produce materials acquired as part of the 
performance of that employee's official duties, or because of that 
employee's official status without prior authorization from the General 
Counsel or Deputy Director. The reasons for this policy are as follows:
    (1) To conserve the time of the agency for conducting official 
business;
    (2) To minimize the possibility of involving the agency in 
controversial issues that are not related to the agency's mission;
    (3) To prevent the possibility that the public will misconstrue 
variances between personal opinions of agency employees and agency 
policies;
    (4) To avoid spending the time and money of the United States for 
private purposes;
    (5) To preserve the integrity of the administrative process; and
    (6) To protect confidential, sensitive information and the 
deliberative process of the agency.
    (b) An attorney from the Office of the General Counsel shall appear 
with any CSOSA employee upon whom the demand has been made (and with any 
PSA employee if so requested by the Deputy Director), and shall provide 
the court or other authority with a copy of the regulations contained in 
this part. The attorney shall also inform the court or authority that 
the demand has been or is being referred for prompt consideration by the 
General Counsel or Deputy Director. The court or other authority will be 
requested respectfully to stay the demand pending receipt of the 
requested instructions from the General Counsel or Deputy Director.
    (c) If the court or other authority declines to stay the effect of 
the demand pending receipt of instructions from the General Counsel or 
Deputy Director, or if the court or other authority rules that the 
demand must be complied with irrespective of the instructions from the 
General Counsel or Deputy Director not to produce the material or 
disclose the information sought, the employee upon whom the demand

[[Page 687]]

was made shall respectfully decline to produce the information under 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). In this case, 
the Supreme Court held that a government employee could not be held in 
contempt for following an agency regulation requiring agency approval 
before producing government information in response to a court order.
    (d) To achieve the purposes noted in paragraphs (a)(1) through (6) 
of this section, the agency will consider factors such as the following 
in determining whether a demand should be complied with:
    (1) The Privacy Act, 5 U.S.C. 522a;
    (2) Department of Health and Human Services statute and regulations 
concerning drug and alcohol treatment programs found at 42 U.S.C. 290dd 
and 42 CFR 2.1 et seq.;
    (3) The Victims Rights Act, 42 U.S.C. 10606(b);
    (4) D.C. statutes and regulations;
    (5) Any other state or federal statute or regulation;
    (6) Whether disclosure is appropriate under the rules of procedure 
governing the case or matter in which the demand arose;
    (7) Whether disclosure is appropriate under the relevant substantive 
law concerning privilege;
    (8) Whether disclosure would reveal a confidential source or 
informant, unless the investigative agency and the source or informant 
have no objection; and
    (9) Whether 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.



      Subpart E--Exemption of Records Systems Under the Privacy Act



Sec. 802.28  Exemption of the Court Services and Offender Supervision Agency System--limited access.

    The Privacy Act permits specific systems of records to be exempt 
from some of its requirements.
    (a)(1) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1)-(3), (4)(G)-(I), (5) and (8), (f) and 
(g):
    (i) Background Investigation (CSOSA-2).
    (ii) Supervision Offender Case File (CSOSA-9).
    (iii) Pre-Sentence Investigations (CSOSA-10).
    (iv) Supervision & Management Automated Record Tracking (SMART) 
(CSOSA-11).
    (v) Recidivism Tracking Database (CSOSA-12).
    (vi) [Reserved].
    (vii) Substance Abuse Treatment Database (CSOSA-15).
    (viii) Screener (CSOSA-16).
    (ix) Sex Offender Registry (CSOSA-18).
    (2) Exemptions from the particular subsections are justified for the 
following reasons:
    (i) From subsection (c)(3) because offenders 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 
CSOSA responsibilities.
    (ii) From subsection (c)(4) because exemption from provisions of 
subsection (d) will make notification of formal disputes inapplicable.
    (iii) From subsection (d), (e)(4)(G) through (e)(4)(I), (f) and (g) 
because exemption from this subsection is essential to protect internal 
processes by which CSOSA personnel are able to formulate decisions and 
policies with regard to offenders, to prevent disclosure of information 
to offenders that would jeopardize legitimate correctional interests of 
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.
    (iv) From subsection (e)(1) because primary collection of 
information directly from offenders about criminal history or criminal 
records is highly impractical and inappropriate.
    (A) 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.

[[Page 688]]

    (B) 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.
    (C) In interviewing individuals or obtaining other forms of evidence 
or information 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.
    (v) 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/her own activities.
    (vi) 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 
investigative activities and could take appropriate steps to evade the 
investigation or flee a specific area.
    (vii) 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.
    (viii) Those sections would otherwise require CSOSA to notify an 
individual of investigatory materials contained in a record pertaining 
to him/her, permit access to such record, permit requests for its 
correction (section 552a(d), (e)(4)(G), and (H)); make available to him/
her any required accounting of disclosures made of the record (section 
552a(c)(3)), publish the sources of records in the system (section 
552a(4)(I)); and screen records to insure that there is maintained only 
such information about an individual as is relevant to accomplish a 
required purpose of the Agency (section 552(e)(1)). In addition, 
screening for relevancy to Agency purposes, a correction or attempted 
correction of such materials could require excessive amounts of time and 
effort on the part of all concerned.
    (b)(1) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1)-(e)(3), (4)(H), (5), (8) and (g):
    (i) Office of Professional Responsibility Record (OPR) (CSOSA-17).
    (ii) [Reserved]
    (2) Exemptions from the particular subsections are justified for the 
following reasons:
    (i) 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 OPR 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 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.
    (ii) 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.
    (iii) 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

[[Page 689]]

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. 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.
    (iv) From subsection (e)(1) because the application of this 
provision could impair investigations and interfere with the law 
enforcement responsibilities of the OPR for the following reasons:
    (A) 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.
    (B) During the course of any investigation, the OPR 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 OPR 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.
    (C) 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.
    (v) 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:
    (A) 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.
    (B) 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.
    (C) 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.
    (vi) 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.
    (vii) 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

[[Page 690]]

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.
    (viii) 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.
    (ix) 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.



Sec. 802.29  Exemption of the Pretrial Services Agency System.

    The Privacy Act permits specific systems of records to be exempt 
from some of its requirements.
    (a)(1) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1)-(3), (4)(G)-(I), (5) and (8), (f) and 
(g):
    (i) Automated Bail Agency Database (ABADABA) (CSOSA/PSA-1).
    (ii) Drug Test Management System (DTMS) (CSOSA/PSA-2).
    (iii) Interview and Treatment Files (CSOSA/PSA-3).
    (iv) Pretrial Realtime Information Systems Manager (PRISM) (CSOSA/
PSA-6).
    (2) Exemptions from the particular subsections are justified for the 
following reasons:
    (i) From subsection (c)(3) because defendants/offenders 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 CSOSA/PSA responsibilities.
    (ii) From subsection (c)(4) because exemption from provisions of 
subsection (d) will make notification of formal disputes inapplicable.
    (iii) From subsection (d), (e)(4)(G) through (e)(4)(I), (f) and (g) 
because exemption from this subsection is essential to protect internal 
processes by which CSOSA/PSA personnel are able to formulate decisions 
and policies with regard to defendants/offenders, to prevent disclosure 
of information to defendants/offenders that would jeopardize legitimate 
correctional interests of 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.
    (iv) From subsection (e)(1) because primary collection of 
information directly from defendants/offenders about criminal history or 
criminal records is highly impractical and inappropriate.
    (A) 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.
    (B) Relevancy 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.
    (C) In interviewing individuals or obtaining other forms of evidence 
or information 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.
    (v) 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/her own activities.
    (vi) 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 
investigative activities and could take appropriate steps to evade the 
investigation or flee a specific area.

[[Page 691]]

    (vii) 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.
    (viii) Those sections would otherwise require CSOSA to notify an 
individual of investigatory materials contained in a record pertaining 
to him/her, permit access to such record, permit requests for its 
correction (section 552a(d), (e)(4)(G), and (H)); make available to him/
her any required accounting of disclosures made of the record (section 
552a(c)(3)), publish the sources of records in the system (section 
552a(4)(I)); and screen records to insure that there is maintained only 
such information about an individual as is relevant to accomplish a 
required purpose of the Agency (section 552(e)(1)). In addition, 
screening for relevancy to Agency purposes, a correction or attempted 
correction of such materials could require excessive amounts of time and 
effort on the part of all concerned.
    (b) [Reserved]



PART 810--COMMUNITY SUPERVISION: ADMINISTRATIVE SANCTIONS--Table of Contents




Sec.
810.1  Supervision contact requirements.
810.2  Accountability contract.
810.3  Consequences of violating the conditions of supervision.

    Authority: Pub. L. 105-33, 111 Stat. 712 (D.C. Code 24-
1233(b)(2)(B)).

    Source: 66 FR 48337, Sept. 20, 2001, unless otherwise noted.



Sec. 810.1  Supervision contact requirements.

    If you are an offender under supervision by the Court Services and 
Offender Supervision Agency for the District of Columbia (``CSOSA''), 
CSOSA will establish a supervision level for you and your minimum 
contact requirement (that is, the minimum frequency of face-to-face 
interactions between you and a Community Supervision Officer (``CSO'')).



Sec. 810.2  Accountability contract.

    (a) Your CSO will instruct you to acknowledge your responsibilities 
and obligations of being under supervision (whether through probation, 
parole, or supervised release as granted by the releasing authority) by 
agreeing to an accountability contract with CSOSA.
    (b) The CSO is responsible for monitoring your compliance with the 
conditions of supervision. The accountability contract identifies the 
following specific activities constituting substance abuse or non-
criminal violations of your conditions of supervision.
    (1) Substance abuse violations.
    (i) Positive drug test.
    (ii) Failure to report for drug testing.
    (iii) Failure to appear for treatment sessions.
    (iv) Failure to complete inpatient/outpatient treatment programming.
    (2) Non-criminal violations.
    (i) Failure to report to the CSO.
    (ii) Leaving the judicial district without the permission of the 
court or the CSO.
    (iii) Failure to work regularly or attend training and/or school.
    (iv) Failure to notify the CSO of change of address and/or 
employment.
    (v) Frequenting places where controlled substances are illegally 
sold, used, distributed, or administered.
    (vi) Associating with persons engaged in criminal activity.
    (vii) Associating with a person convicted of a felony without the 
permission of the CSO.
    (viii) Failure to notify the CSO within 48 hours of being arrested 
or questioned by a law enforcement officer.
    (ix) Entering into an agreement to act as an informer or special 
agent of a law enforcement agency without the permission of the Court or 
the United States Parole Commission (``USPC'').
    (x) Failure to adhere to any general or special condition of 
release.
    (c) The accountability contract will identify a schedule of 
administrative sanctions (see Sec. 810.3(b)) which may be imposed for 
your first violation and for subsequent violations.
    (d) The accountability contract will provide for a reduction in your 
supervision level and/or the removal of previously imposed sanctions if:

[[Page 692]]

    (1) You maintain compliance for at least ninety days,
    (2) The Supervisory Community Supervision Officer concurs with this 
assessment, and
    (3) There are no additional reasons unrelated to the imposed 
sanction requiring the higher supervision level.



Sec. 810.3  Consequences of violating the conditions of supervision.

    (a) If your CSO has reason to believe that you are failing to abide 
by the general or specific conditions of release or you are engaging in 
criminal activity, you will be in violation of the conditions of your 
supervision. Your CSO may then impose administrative sanctions (see 
paragraph (b) of this section) and/or request a hearing by the releasing 
authority. This hearing may result in the revocation of your release or 
changes to the conditions of your release.
    (b) Administrative sanctions available to the CSO include:
    (1) Daily check-in with supervision for a specified period of time;
    (2) Increased group activities for a specified period of time;
    (3) Increased drug testing;
    (4) Increased supervision contact requirements;
    (5) Referral for substance abuse addiction or other specialized 
assessments;
    (6) Electronic monitoring for a specified period of time;
    (7) Community service for a specified number of hours;
    (8) Placement in a residential sanctions facility or residential 
treatment facility for a specified period of time.
    (9) Travel restrictions.
    (c) You remain subject to further action by the releasing authority. 
For example, the USPC may override the imposition of any of the 
sanctions in paragraph (b) of this section and issue a warrant or 
summons if you are a parolee and it finds that you are a risk to the 
public safety or that you are not complying in good faith with the 
sanctions (see 28 CFR 2.85(a)(15)).



PART 811--SEX OFFENDER REGISTRATION--Table of Contents




Sec.
811.1  Purpose and scope; relation to District of Columbia regulations.
811.2  Applicability.
811.3  Notice of obligation to register.
811.4  Determination of the obligation to register and the length of 
          registration.
811.5  Commencement of the obligation to register.
811.6  Duration of the obligation to register.
811.7  Initial registration.
811.8  Review of determination to register.
811.9  Periodic verification of registration information.
811.10  Changes in registration information.
811.11  Compliance.
811.12  Penalties.
811.13  Notices and appearances.
811.14  Definitions.

Appendix A to Part 811--Listing of Sex Offender Registration Offenses by 
          Class

    Authority: 5 U.S.C. 301; Pub. L. 105-33, 111 Stat. 251; Pub. L. 106-
113, sec. 166(a), 113 Stat. 1530

    Source: 67 FR 54095, Aug. 21, 2002, unless otherwise note.



Sec. 811.1  Purpose and scope; relation to District of Columbia regulations.

    (a) In accordance with its sex offender registration functions 
authorized by section 166(a) of the Consolidated Appropriations Act, 
2000 (Pub. L. 106-113, sec. 166(a), 113 Stat. 1530; D.C. Official Code 
secs. 24-133(c)(5)) and as further authorized by the Sex Offender 
Registration Act of 1999 (``the Act,'' D.C. Law 13-137, D.C. Official 
Code, secs. 22-4001 et seq.), the Court Services and Offender 
Supervision Agency for the District of Columbia (``CSOSA'') operates and 
maintains the sex offender registry for the District of Columbia. The 
regulations in this part set forth procedures and requirements relating 
to registration, verification, and changes in information for sex 
offenders who live, reside, work, or attend school in the District of 
Columbia.
    (b) Chapter 4 of Title 6A, District of Columbia Municipal 
Regulations (DCMR)(47 D.C. Reg. 10042, December 22, 2000), contains 
regulations issued by the government of the District of Columbia for the 
sex offender registration

[[Page 693]]

system in the District of Columbia (``District of Columbia 
regulations''). Chapter 4 of Title 6A, DCMR (47 D.C. Reg. 10042, 
December 22, 2000) is incorporated by reference in this part with the 
approval of the Director of the Federal Register in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. Chapter 4 of Title 6A, DCMR, is 
available for inspection at the Office of the Federal Register, 800 N. 
Capitol Street, NW., Suite 700, Washington, DC. Copies of Chapter 4 of 
Title 6A, DCMR, may be obtained from the District of Columbia's Office 
of Documents and Administrative Issuances, 441 4th Street, NW., Room 
520S, Washington, DC 20001. CSOSA hereby adopts all powers and 
authorities that the District of Columbia regulations authorize CSOSA to 
exercise, and hereby adopts all procedures and requirements that the 
District of Columbia regulations state that CSOSA shall adopt or carry 
out, including but not limited to all such powers, authorities, 
procedures and requirements relating to registration, verification, and 
changes in information.



Sec. 811.2  Applicability.

    (a) Sex offender registration requirements apply to all persons who 
live, reside, work, or attend school in the District of Columbia, and 
who:
    (1) committed a registration offense on or after July 11, 2000;
    (2) committed a registration offense at any time and were in custody 
or under supervision on or after July 11, 2000;
    (3) were required to register under the law of the District of 
Columbia as was in effect on July 10, 2000; or
    (4) committed a registration offense at any time in another 
jurisdiction and, within the registration period (see Secs. 811.5 and 
811.6), entered the District of Columbia to live, reside, work or attend 
school.
    (b) ``Committed a registration offense'' means that a person was 
found guilty or found not guilty by reason of insanity of a registration 
offense or was determined to be a sexual psychopath. Registration 
offenses are defined in section 2(8) of the Sex Offender Registration 
Act of 1999 (D.C. Official Code Sec. 22-4001(8)), subject to the 
exceptions in section 17(b) of that Act (D.C. Official Code section 22-
4016), and are listed descriptively in the Appendix to Part 811 (which 
also provides information on registration and notification classes). Any 
future revision to the statutory provisions designating registration 
offenses will be effective notwithstanding the timing of any conforming 
revision of these regulations, including the Appendix.



Sec. 811.3  Notice of obligation to register.

    (a) Sex offenders may be notified of their obligation to register 
under various provisions of law. See sections 4, 6 and 8 of the Sex 
Offender Registration Act of 1999 (D.C. Official Code sections 22-4003, 
4005, 4007) (relating to notice by the District of Columbia Superior 
Court, Department of Corrections, or CSOSA); 18 U.S.C. 4042(c) (relating 
to notice by Federal Bureau of Prisons and probation offices); 18 U.S.C. 
3563(a)(8), 3583(d), 4209(a) (inclusion of registration requirements as 
conditions of release under federal law); 42 U.S.C. 14071(b)(1) (notice 
under federal law standards for state sex offender registration 
programs).
    (b) In some cases, sex offenders may not be notified of their 
obligation to register. Lack of notice does not excuse a failure to 
register because sex offenders have an independent obligation to 
register. Persons who have been convicted or found not guilty by reason 
of insanity of a sex offense or who have been determined to be a sexual 
psychopath should report to CSOSA in order to ascertain whether they are 
required to register.



Sec. 811.4  Determination of the obligation to register and the length of registration.

    (a) If the Superior Court finds that a person committed a 
registration offense, the Superior Court enters an order certifying that 
the person is a sex offender and that the person is subject to 
registration for a prescribed period of time (see Sec. 811.6).
    (b) If a court order has not been entered certifying that a person 
is a sex offender and that the person is subject to registration for a 
prescribed period of time, CSOSA makes those determinations. CSOSA also 
determines the

[[Page 694]]

notification classification if the Court has not done so. Facts on which 
CSOSA's determination may be based include:
    (1) The offense or offenses of conviction (or finding of not guilty 
by reason of insanity) or a determination that the person is a sexual 
psychopath;
    (2) For certain offenses, facts that may not be apparent on the face 
of the conviction (or finding of not guilty by reason of insanity), such 
as:
    (i) the age of the victim;
    (ii) whether force was involved; or
    (iii) whether the offense involved an undercover law enforcement 
officer who was believed to be an adult;
    (3) Prior criminal history;
    (4) For an offense committed in or prosecuted under the law of 
another jurisdiction, whether the offense involved conduct that was the 
same as or substantially similar to a District of Columbia registration 
offense; and
    (5) The amount of time that has elapsed as computed under 
Sec. 811.6.



Sec. 811.5  Commencement of the obligation to register.

    (a) A sex offender's obligation to register starts when the sex 
offender is found guilty or not guilty by reason of insanity of a 
registration offense or is determined to be a sexual psychopath. 
However, CSOSA may suspend registration requirements during any period 
of time in which a sex offender is detained, incarcerated, confined, 
civilly committed, or hospitalized in a secure facility.
    (b) A sex offender must register if the sex offender is placed on 
probation, parole, supervised release, or convalescent leave, is 
conditionally or unconditionally released from a secure facility, is 
granted unaccompanied grounds privileges or other unaccompanied leave, 
absconds or escapes, is otherwise not detained, incarcerated, confined, 
civilly committed, or hospitalized in a secure facility, or enters the 
District of Columbia from another jurisdiction to live, reside, work, or 
attend school. Registration shall be effectuated as provided in 
Sec. 811.7 and may be carried out prior to the occurrence of a 
circumstance described in this paragraph, including the release of or 
granting of leave to a sex offender.



Sec. 811.6  Duration of the obligation to register.

    (a) Lifetime registration. The registration period for a sex 
offender who is required to register for life shall end upon the sex 
offender's death.
    (b) Term of years registration. (1) The registration period for any 
other sex offender shall end upon the expiration of the sex offender's 
probation, parole, supervised release, conditional release, or 
convalescent leave, or ten years after the sex offender is placed on 
probation, parole, supervised release, conditional release, or 
convalescent leave, or is unconditionally released from a correctional 
facility, prison, hospital or other place of confinement, whichever is 
latest.
    (2) In computing ten years, CSOSA will not count:
    (i) Any time in which the sex offender has failed to register or 
otherwise failed to comply with requirements of the Act or any 
procedures, requirements, rules, or regulations promulgated under the 
Act, including these regulations and the District of Columbia 
regulations;
    (ii) Any time in which a sex offender is detained, incarcerated, 
confined, civilly committed, or hospitalized in a mental health 
facility; and
    (iii) Any time in which a sex offender was registered prior to a 
revocation of probation, parole, supervised release, conditional 
release, or convalescent leave.
    (3) In computing ten years, CSOSA will count any time in which a sex 
offender was registered in another jurisdiction unless that time is not 
counted because of a circumstance set forth in paragraph (b)(2) of this 
section.
    (c) Reversal, vacation, or pardon. A person's obligation to register 
terminates if the person's conviction, finding of not guilty by reason 
of insanity, or finding that the person is a sexual psychopath is 
reversed or vacated, or if the person has been pardoned for the offense 
on the ground of innocence, and the person has committed no other 
offenses for which registration is required.
    (d) Termination of obligation to register in the District of 
Columbia under other

[[Page 695]]

circumstances. A sex offender's obligation to register in the District 
of Columbia terminates if the sex offender no longer lives, resides, 
works or attends school in the District of Columbia. However, the 
obligation to register in the District of Columbia resumes if the sex 
offender re-enters the District of Columbia within the registration 
period to live, reside, work or attend school.



Sec. 811.7  Initial registration.

    (a) Duties of sex offender. (1) A sex offender must notify CSOSA 
within 3 days of the occurrence of any circumstance described in 
Sec. 811.5(b), including but not limited to being sentenced to 
probation, being released (including any escape or abscondance) from 
incarceration or confinement, or entering the District of Columbia to 
live, reside, work, or attend school.
    (2) A sex offender must meet with a responsible officer or official, 
as directed by CSOSA, for the purpose of registration, and must 
cooperate in such a meeting, including:
    (i) Providing any information required for registration and 
cooperating in photographing and fingerprinting;
    (ii) Reviewing information obtained by CSOSA pursuant to paragraph 
(b) of this section as CSOSA directs and either attesting to its 
accuracy or setting forth in writing, under penalties of perjury, the 
exact portion or portions that are not accurate; and
    (iii) Acknowledging receipt of information concerning the sex 
offender's duties under the Act, including reading (or, if the sex 
offender cannot read, listening to a reading of) and signing a form or 
forms stating that these duties have been explained to the sex offender.
    (3) In case of disagreement with CSOSA's determination that the 
person must register or with CSOSA's determination of the person's 
classification for purposes of registration or notification, the person 
must follow the review procedures set forth in Sec. 811.8.
    (b) Duties of CSOSA. (1) CSOSA shall obtain information relating to 
the sex offender for the purpose of registration including:
    (i) Name(s) and alias(es);
    (ii) Date of birth;
    (iii) Physical description such as sex, race, height, weight, eye 
color, hair color, tattoos, scars, or other marks or characteristics;
    (iv) Social security, PDID, DCDC and FBI numbers;
    (v) Driver's license number and make, model, color, and license 
plate number of any motor vehicle(s) the sex offender owns;
    (vi) A photograph and set of fingerprints;
    (vii) Current and/or anticipated home, school, work address(es) and 
telephone number(s); and
    (viii) Other information that may assist CSOSA or the Metropolitan 
Police Department in locating the sex offender.
    (2) CSOSA shall also obtain a detailed description of the offense(s) 
on the basis of which a sex offender is required to register, the 
presentence report(s), the victim impact statement(s), the date(s) of 
conviction and any sentence(s) imposed, the sex offender's criminal 
record and a detailed description of any relevant offense or offenses, 
pertinent statutes and case law in other jurisdictions, and any other 
information it deems useful in order to determine a sex offender's 
obligation to register, term of registration, and notification 
classification, to verify the accuracy of the information provided, to 
assist other jurisdictions' sex offender registration agencies and 
authorities, or to assist the Metropolitan Police Department in its law 
enforcement functions.
    (3) CSOSA shall inform a sex offender of the sex offender's duty to:
    (i) Comply with the requirements set forth in paragraph (a) of this 
section for initial registration;
    (ii) Periodically verify the address(es) at which the sex offender 
lives, resides, works, and/or attends school, and other information, as 
provided in Sec. 811.9;
    (iii) Report any change of address and any other changes in 
registration information (including changes in appearance), as provided 
in Sec. 811.10;
    (iv) Notify CSOSA if the sex offender is moving to another 
jurisdiction or works or attends school in another jurisdiction and to 
register in any such jurisdiction; and

[[Page 696]]

    (v) Comply with the requirements of the Act and any procedures, 
requirements, rules, or regulations promulgated under the Act, including 
these regulations and the District of Columbia regulations.
    (4) CSOSA shall inform the sex offender of the penalties for failure 
to comply with the sex offender's duties.
    (5) If the Superior Court has not entered an order certifying that a 
person is a sex offender, CSOSA shall inform the person that, if the 
person disagrees with CSOSA's determination that the person must 
register or CSOSA's determination of the person's classification for 
purposes of registration or notification, then the person must follow 
the review procedures set forth in Sec. 811.8. CSOSA shall provide the 
person with a form to notify CSOSA of an intent to seek such review.



Sec. 811.8  Review of determination to register.

    (a) If a person, other than a person who has been certified as a sex 
offender by the Court, disagrees with CSOSA's determination that the 
person is subject to registration or with CSOSA's determination of the 
person's classification for purposes of registration or notification, 
the person may seek judicial review of the determination, subject to the 
limitations of section 5(a)(1) of the Act (D.C. Official Code Sec. 22-
4004(a)(1)), by:
    (1) Immediately providing CSOSA with a notice of intent to seek 
review upon being informed of the determination; and
    (2) Within 30 calendar days of the date on which the person is 
informed of CSOSA's determination, filing a motion in the Superior Court 
setting forth the disputed facts and attaching any documents or 
affidavits upon which the person intends to rely.
    (b) A person who fails to comply with paragraph (a) of this section 
may seek review of CSOSA's determination only in conformity with the 
limitations of section 5(a)(1) of the Act (D.C. Official Code Section 
4004(a)(1)) and for good cause shown and to prevent manifest injustice 
by filing a motion in the Court within three years of the date on which 
the person is informed of CSOSA's determination.



Sec. 811.9  Periodic verification of registration information.

    (a) Sex offenders who are required to register for life must verify 
registration information quarterly pursuant to the procedures set forth 
in paragraph (d) of this section.
    (b) All other sex offenders must verify registration information 
annually pursuant to the procedures set forth in paragraph (d) of this 
section.
    (c) Quarterly or annually, as appropriate, CSOSA will mail a 
verification form to the home address of the sex offender.
    (d) The sex offender must correct any information on the form which 
is inaccurate or out of date and must sign, thumb-print, and return the 
form to CSOSA no later than 14 calendar days after the date on which 
CSOSA placed it in the mail. The sex offender has the option of 
returning the form by mail or in person unless:
    (1) The sex offender is also on probation, parole, or supervised 
release or otherwise must report to CSOSA, and CSOSA directs the sex 
offender to verify the registration information in person;
    (2) CSOSA directs the sex offender to appear in person because the 
sex offender has previously failed to submit a timely verification or 
submitted an incomplete or inaccurate verification; or
    (3) CSOSA directs the sex offender to appear in person for the 
purpose of taking a new photograph documenting a significant change in 
physical appearance or updating a photograph that is five or more years 
old.



Sec. 811.10  Changes in registration information.

    (a)(1) A sex offender must notify CSOSA if the sex offender:
    (i) Ceases to live or reside at the registered address or moves to a 
different address;
    (ii) leaves a job or obtains a new job, or leaves a school or 
enrolls in a new school; or
    (iii) ceases to own or becomes an owner of any motor vehicle.
    (2) A sex offender must notify CSOSA if there is a significant 
change in the sex offender's appearance and report as directed for the 
purpose of having a new photograph taken. Any question

[[Page 697]]

regarding whether a change in physical appearance is significant is to 
be referred to CSOSA.
    (3) A sex offender must notify CSOSA if the sex offender is moving 
to another jurisdiction or if the sex offender works or attends school 
in another jurisdiction and must register in any such jurisdiction.
    (b) Notice of the changes described in paragraph (a) of this section 
must be in writing and must be provided prior to the change if feasible 
and in any event within three days of the change. Notices of change in 
address or place of work or school attendance must include new address, 
location, and phone number information. Notice relating to ownership of 
a motor vehicle must include the make, model, color, and license plate 
number of the vehicle.



Sec. 811.11  Compliance.

    (a) A sex offender may be excused from strict compliance with the 
time limits set forth in these regulations if the sex offender notifies 
CSOSA in advance of circumstances that will interfere with compliance 
and makes alternative arrangements to satisfy the requirements or, in 
the case of an emergency, notifies CSOSA as soon as the sex offender is 
able to do so.
    (b) CSOSA may direct that a sex offender meet with a responsible 
officer or official for the purpose of securing compliance or discussing 
non-compliance with any requirements of the Act or any procedures, 
requirements, rules, or regulations promulgated under the Act, including 
these regulations and the District of Columbia regulations.



Sec. 811.12  Penalties.

    A violation of the requirements of the Act or any procedures, 
requirements, rules, or regulations promulgated under the Act, including 
these regulations and the District of Columbia regulations, may result 
in criminal prosecution under section 16 of the Act (D.C. Official Code 
Section 22-4015), revocation of probation, parole, supervised release, 
or conditional release, and extension of the registration period under 
Sec. 811.6(b)(2).



Sec. 811.13  Notices and appearances.

    Unless otherwise directed by the Court or CSOSA,
    (a) Notices or reports that are required to be submitted in writing 
should be sent to: Sex Offender Registration Unit, Court Services and 
Offender Supervision Agency, Room 2002, 300 Indiana Avenue, NW., 
Washington, DC 20001.
    (b) A person who is required to report in person should go to: Sex 
Offender Supervision Office, Court Services and Offender Supervision 
Agency, Room 2002, 300 Indiana Avenue, NW., Washington, DC 20001.



Sec. 811.14  Definitions.

    (a) The terms ``attends school,'' ``Court,'' ``in custody or under 
supervision,'' ``sex offender,'' and ``works'' shall have the same 
meaning as set forth in Section 2 of the Sex Offender Registration Act 
of 1999 (D.C. Official Code Section 22-4001).
    (b) The term ``the Act'' means the Sex Offender Registration Act of 
1999 (D.C. Official Code Section 22-4001 et seq.).
    (c) The term ``days'' means business days unless otherwise 
specified.
    (d) In relation to a motor vehicle, the term ``owns'' includes both 
exclusive ownership and co-ownership, and the term ``owner'' includes 
both exclusive owners and co-owners.

Appendix A to Part 811--Listing of Sex Offender Registration Offenses by 
                                  Class

               Class A Offenders--All Lifetime Registrants

      (D.C. Official Code Secs. 22-4001(6), 4002(b), 4011(b)(2)(A))

    1. Class A includes offenders who have been convicted or found not 
guilty by reason of insanity of:
    (a) First degree sexual abuse;
    (b) Second degree sexual abuse;
    (c) Rape;
    (d) Forcible sodomy;
    (e) First degree child sexual abuse committed against a child under 
12;
    (f) Carnal knowledge (statutory rape) committed against a child 
under 12;
    (g) Sodomy committed against a child under 12;

[[Page 698]]

    (h) Murder committed before, during, or after engaging in or 
attempting to engage in a sexual act or contact or rape;
    (i) Manslaughter committed before, during, or after engaging in or 
attempting to engage in a sexual act or contact or rape;
    (j) Attempting to commit any of the foregoing offenses;
    (k) Conspiring to commit any of the foregoing offenses; or
    (l) Assault with intent to commit any of the foregoing offenses.
    2. Class A also includes offenders who:
    (a) In two or more trials or plea proceedings, have been convicted 
or found not guilty by reason of insanity of a felony registration 
offense or any registration offense against a minor. (Recidivism).
    (b) In a single trial or plea proceeding, have been convicted or 
found not guilty by reason of insanity of registration offenses against 
two or more victims where each offense is a felony or committed against 
a minor (Multiple victims).
    (c) Have been determined to be sexual psychopaths.
    3. Class A also includes offenders who have been convicted or found 
not guilty by reason of insanity under the law of another jurisdiction 
of offenses that involved conduct that is the same as or substantially 
similar to that above.

               Class B Offenders--``Ten Year'' Registrants

      (Other Offenses Against Minors, Wards, Patients, or Clients)

      (D.C. Official Code Secs. 22-4001(8), 4002(a), 4011(b)(2)(B))

    1. Class B includes offenders who are not included in Class A and 
have been convicted or found not guilty by reason of insanity of any of 
the following crimes against a minor (that is, a person under the age of 
18):
    (a) Third degree sexual abuse;
    (b) Fourth degree sexual abuse;
    (c) Misdemeanor sexual abuse;
    (d) First degree child sexual abuse;
    (e) Second degree child sexual abuse;
    (f) Carnal knowledge (statutory rape);
    (g) Sodomy committed against a minor;
    (h) Indecent acts on a child;
    (i) Enticing a child;
    (j) Lewd, indecent or obscene acts;
    (k) Sexual performance using a minor;
    (l) Incest;
    (m) Obscenity;
    (n) Prostitution/Pandering;
    (o) Assault (unwanted sexual touching);
    (p) Threatening to commit a sexual offense;
    (q) First or second degree burglary with intent to commit sex 
offense;
    (r) Kidnapping (does not require a sexual purpose);
    (s) Assault with intent to commit any of the foregoing offenses;
    (t) Attempting to commit any of the foregoing offenses;
    (u) Conspiring to commit any of the foregoing offenses; or
    (v) Any offense against a minor for which the offender agreed in a 
plea agreement to be subject to sex offender registration requirements.
    2. Class B also includes offenders who are not included in Class A 
and have been convicted or found not guilty by reason of insanity of any 
of the following crimes regardless of the age of the victim:
    (a) First degree sexual abuse of a ward or resident of a hospital, 
treatment facility or other institution.
    (b) Second degree sexual abuse of a ward or resident of a hospital, 
treatment facility or other institution.
    (c) First degree sexual abuse of a patient or client.
    (d) Second degree sexual abuse of a patient or client.
    3. Class B also includes offenders who are not included in Class A 
and have been convicted or found not guilty by reason of insanity under 
the law of another jurisdiction of offenses that involved conduct that 
is the same as or substantially similar to that above.

               Class C Offenders--``Ten Year'' Registrants

                 (Other Offenses Against Adult Victims)

      (D.C. Official Code Secs. 22-4001(8), 4002(a), 4011(b)(2)(C))

    1. Class C includes offenders who are not included in Class A or 
Class B and have committed any of the following crimes against an adult 
(that is, a person 18 years of age or older):
    (a) Third degree sexual abuse;
    (b) Fourth degree sexual abuse;
    (c) First or second degree burglary with intent to commit sex 
offense;
    (d) Kidnapping with intent to commit sex offense;
    (e) Threatening to commit a sexual offense (felony);
    (f) Assault with intent to commit any of the foregoing offenses;
    (g) Attempting to commit any of the foregoing offenses;
    (h) Conspiring to commit any of the foregoing offenses, or;
    (i) Any offense for which the offender agreed in a plea agreement to 
be subject to sex offender registration requirements.
    2. Class C also includes offenders who are not included in Class A 
or Class B and have been convicted or found not guilty by reason of 
insanity under the law of another jurisdiction of offenses that involved 
conduct that is

[[Page 699]]

the same as or substantially similar to that above.

             Exceptions (D.C. Official Code Sec. 22-4016(b))

    The following do not constitute registration offenses:
    1. Any sexual offense between consenting adults or an attempt, 
conspiracy or solicitation to commit such an offense, except for 
offenses to which consent is not a defense as provided in Section 218 of 
the Anti-Sexual Abuse Act of 1994 (D.C. Official Code Sec. 22-3017).
    2. Any misdemeanor offense that involved a person's sexual touching 
or attempted or solicited sexual touching of an undercover law 
enforcement officer where the person believed that the officer was an 
adult.
    3. Any misdemeanor offense committed against an adult, except where 
the offender agrees in a plea agreement to be subject to sex offender 
registration requirements.



PART 812--COLLECTION AND USE OF DNA INFORMATION--Table of Contents




Sec.
812.1  Purpose.
812.2  Individuals subject to DNA collection.
812.3  Coordination with the Federal Bureau of Prisons.
812.4  Collection procedures.

Appendix A to Part 812--Qualifying District of Columbia Code Offenses

    Authority: 5 U.S.C. 301; Pub. L. 106-546 (114 Stat. 2726).

    Source: 67 FR 54100, Aug. 21, 2002, unless otherwise noted.



Sec. 812.1  Purpose.

    The Court Services and Offender Supervision Agency for the District 
of Columbia (``CSOSA'') cooperates with other federal agencies to ensure 
that DNA samples from offenders are appropriately furnished to the 
Federal Bureau of Investigation (``FBI'') for DNA analysis. The results 
of the DNA analyses are to be included in the Combined DNA Index System 
(``CODIS'').



Sec. 812.2  Individuals subject to DNA collection.

    CSOSA is responsible for collecting a DNA sample from each 
individual under its supervision who is, or has been, convicted of a 
qualifying District of Columbia Code offense. Qualifying District of 
Columbia Code offenses were designated by the Council of the District of 
Columbia in the ``DNA Sample Collection Act of 2001.'' CSOSA provides a 
listing of these offenses in the Appendix to this part. The list is 
presented for informational purposes only. Any future revision to the 
District of Columbia Code sections designating the qualifying offenses 
will be effective notwithstanding the timing of a conforming revision of 
the Appendix by CSOSA. CSOSA may choose not to collect a sample from an 
individual if it determines that CODIS already contains a DNA analysis 
for the individual.



Sec. 812.3  Coordination with the Federal Bureau of Prisons.

    (a) CSOSA will coordinate with the Federal Bureau of Prisons in 
order to obtain documentation regarding the collection of a DNA sample 
when the Federal Bureau of Prisons releases an inmate to CSOSA's 
supervision or as requested by CSOSA.
    (b) CSOSA shall provide the Federal Bureau of Prisons with 
documentation regarding the collection of a DNA sample from a District 
of Columbia Code offender when CSOSA returns the District of Columbia 
Code offender to the custody of the Federal Bureau of Prisons or as 
requested by the Federal Bureau of Prisons.



Sec. 812.4  Collection procedures.

    (a) DNA samples will be collected, handled, preserved, and submitted 
to the FBI in accordance with FBI guidelines.
    (b) CSOSA has the authority to use such means as are reasonably 
necessary to collect a sample from an individual who refuses to 
cooperate in the collection of the sample. Unless CSOSA determines that 
there are mitigating circumstances, CSOSA will consider that an 
individual is refusing to cooperate if:
    (1) The individual is being ordered or transferred to CSOSA's 
supervision, but fails to report to CSOSA for collection of the sample 
within 15 business days of being sentenced to probation or being 
discharged from a correctional institution; or

[[Page 700]]

    (2) The individual is already under CSOSA supervision and has been 
notified by his or her Community Supervision Officer of the time to 
report for collection of the sample, but fails to report for collection 
of the sample; or
    (3) The individual has reported to CSOSA for collection of the 
sample, but fails to provide the sample after being given a minimum of 
one hour to do so; or
    (4) The individual specifically states that he or she will not 
cooperate.
    (c) When an individual has refused to cooperate in the collection of 
the sample, CSOSA deems the following to be reasonably necessary means 
for obtaining the sample:
    (1) Impose administrative sanctions;
    (2) Request a revocation hearing by the releasing authority; and/or
    (3) Refer the individual who refuses to cooperate for criminal 
prosecution for a class A misdemeanor pursuant to section 4(a)(5) of the 
DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135b(a)(5)).

[67 FR 54100, Aug. 21, 2002, as amended at 68 FR 19742, Apr. 22, 2003]

  Appendix A to Part 812--Qualifying District of Columbia Code Offenses

    As enacted by the Council of the District of Columbia, the DNA 
Sample Collection Act of 2001 identifies the criminal offenses listed in 
Table 1 of this appendix as ``qualifying District of Columbia offenses'' 
for the purposes of the DNA Analysis Backlog Elimination Act of 2000 
(Pub. L. 106-546, 114 Stat. 2726). Table 2 of this Appendix lists these 
same offenses in numerical order under the D.C. Code, 1981 Edition. 
Table 3 of this Appendix lists these same offenses in numerical order 
under the D.C. Official Code, 2001 Edition. The tables follow:

                        Table 1. Offense Listing

    (1) Section 820 of An Act To establish a code of law for the 
District of Columbia (arson);
    (2) Section 821 of An Act To establish a code of law for the 
District of Columbia (burning of one's own property with intent to 
defraud or injure another);
    (3) Section 848 of An Act To establish a code of law for the 
District of Columbia (malicious burning, destruction, or injury of 
another's property);
    (4) Section 803 of An Act To establish a code of law for the 
District of Columbia (assault with intent to kill, rob, or poison, or to 
commit first degree sexual abuse, second degree sexual abuse or child 
sexual abuse);
    (5) Section 804 of An Act To establish a code of law for the 
District of Columbia, (assault with intent to commit mayhem or with 
dangerous weapon);
    (6) Section 806a of An Act To establish a code of law for the 
District of Columbia (aggravated assault);
    (7) Section 432(b) of the Revised Statutes, relating to the District 
of Columbia (assault on member of police force, campus or university 
special police, or fire department using a deadly or dangerous weapon);
    (8) Section 807 of An Act To establish a code of law for the 
District of Columbia (mayhem or maliciously disfiguring);
    (9) Section 3 of An Act for the protection of children in the 
District of Columbia and for other purposes (cruelty to children);
    (10) Section 9 of An Act for the preservation of the public peace 
and the protection of property within the District of Columbia (lewd, 
indecent, or obscene acts (knowingly in the presence of a child under 
the age of 16 years));
    (11) Section 823 of An Act To establish a code of law for the 
District of Columbia (burglary);
    (12) Section 875 of An Act To establish a code of law for the 
District of Columbia (incest);
    (13) Section 872 of An Act To establish a code of law for the 
District of Columbia (certain obscene activities involving minors);
    (14) Section 3 of the District of Columbia Protection of Minors Act 
of 1982 (sexual performances using minors);
    (15) Section 812 of An Act To establish a code of law for the 
District of Columbia (kidnapping);
    (16) Section 798 of An Act To establish a code of law for the 
District of Columbia (murder in the first degree);
    (17) Section 799 of An Act To establish a code of law for the 
District of Columbia (murder in the first degree--obstructing railroad);
    (18) Section 800 of An Act To establish a code of law for the 
District of Columbia (murder in the second degree);
    (19) Section 802 of An Act To establish a code of law for the 
District of Columbia (voluntary manslaughter only);
    (20) Section 802a of An Act To establish a code of law for the 
District of Columbia (murder of a law enforcement officer);
    (21) Section 813 of An Act To establish a code of law for the 
District of Columbia (abducting, enticing, or harboring a child for 
prostitution);
    (22) Section 1 of An Act In relation to pandering, to define and 
prohibit the same and to provide for the punishment thereof (pandering; 
inducing or compelling an individual to engage in prostitution);

[[Page 701]]

    (23) Section 2 of An Act In relation to pandering, to define and 
prohibit the same and to provide for the punishment thereof (compelling 
an individual to live life of prostitution against his or her will);
    (24) Section 4 of An Act In relation to pandering, to define and 
prohibit the same and to provide for the punishment thereof (causing 
spouse to live in prostitution);
    (25) Section 5 of An Act In relation to pandering, to define and 
prohibit the same and to provide for the punishment thereof (detaining 
an individual in disorderly house for debt there contracted);
    (26) Forcible rape, carnal knowledge or statutory rape as these 
offenses were proscribed until May 23, 1995 by section 808 of An Act To 
establish a code of law for the District of Columbia;
    (27) Section 810 of An Act To establish a code of law for the 
District of Columbia (robbery);
    (28) Section 811 of An Act To establish a code of law for the 
District of Columbia (attempted robbery);
    (29) Section 811a of An Act To establish a code of law for the 
District of Columbia (carjacking);
    (30) lndecent acts with children as this offense was proscribed 
until May 23, 1995 by section 103(a) of An Act To provide for the 
treatment of sexual psychopaths in the District of Columbia, and for 
other purposes;
    (31) Enticing a child as this offense was proscribed until May 23, 
1995 by section 103(b) of An Act To provide for the treatment of sexual 
psychopaths in the District of Columbia, and for other purposes;
    (32) Sodomy as this offense was proscribed until May 23, 1995 by 
section 104(a) of An Act To provide for the treatment of sexual 
psychopaths in the District of Columbia, and for other purposes where 
the offense was forcible or committed against a minor;
    (33) Section 201 of the Anti-Sexual Abuse Act of 1994 (first degree 
sexual abuse);
    (34) Section 202 of the Anti-Sexual Abuse Act of 1994 (second degree 
sexual abuse);
    (35) Section 203 of the Anti-Sexual Abuse Act of 1994 (third degree 
sexual abuse);
    (36) Section 204 of the Anti-Sexual Abuse Act of 1994 (fourth degree 
sexual abuse);
    (37) Section 205 of the Anti-Sexual Abuse Act of 1994 (misdemeanor 
sexual abuse);
    (38) Section 207 of the Anti-Sexual Abuse Act of 1994 (first degree 
child sexual abuse);
    (39) Section 208 of the Anti-Sexual Abuse Act of 1994 (second degree 
child sexual abuse);
    (40) Section 209 of the Anti-Sexual Abuse Act of 1994 (enticing a 
child);
    (41) Section 212 of the Anti-Sexual Abuse Act of 1994 (first degree 
sexual abuse of a ward);
    (42) Section 213 of the Anti-Sexual Abuse Act of 1994 (second degree 
sexual abuse of a ward);
    (43) Section 214 of the Anti-Sexual Abuse Act of 1994 (first degree 
sexual abuse of a patient or client);
    (44) Section 215 of the Anti-Sexual Abuse Act of 1994 (second degree 
sexual abuse of a patient or client);
    (45) Section 217 of the Anti-Sexual Abuse Act of 1994 (attempts to 
commit sexual offenses); and
    (46) Attempt or conspiracy to commit any of the offenses listed in 
items (1) through (45) of this table.

       Table 2. Offense Listing (D.C. Official Code, 1981 Edition)

    (1) D.C. Code section 22-401--arson;
    (2) D.C. Code section 22-402--burning of one's own property with 
intent to defraud or injure another;
    (3) D.C. Code section 22-403--malicious burning, destruction or 
injury of another's property;
    (4) D.C. Code section 22-501--assault with intent to kill, rob, or 
poison, or to commit first degree sexual abuse, second degree sexual 
abuse or child sexual abuse;
    (5) D.C. Code section 22-502--assault with intent to commit mayhem 
or with dangerous weapon;
    (6) D.C. Code section 22-504.1--aggravated assault;
    (7) D.C. Code section 22-505(b)--assault on member of police force, 
campus or university special police, or fire department using a deadly 
or dangerous weapon;
    (8) D.C. Code section 22-506--mayhem or maliciously disfiguring;
    (9) D.C. Code section 22-901--cruelty to children;
    (10) D.C. Code section 22-1112(b)--lewd, indecent or obscene acts 
(knowingly in the presence of a child under the age of 16 years);
    (11) D.C. Code section 22-1801--burglary;
    (12) D.C. Code section 22-1901--incest;
    (13) D.C. Code section 22-2001--certain obscene activities involving 
a minor;
    (14) D.C. Code section 22-2012--sexual performances using minors;
    (15) D.C. Code section 22-2101--kidnapping;
    (16) D.C. Code section 22-2401--murder in the first degree;
    (17) D.C. Code section 22-2402--murder in the first degree 
(obstructing railroad);
    (18) D.C. Code section 22-2403--murder in the second degree;
    (19) D.C. Code section 22-2405--voluntary manslaughter only;
    (20) D.C. Code section 22-2406--murder of a law enforcement officer;
    (21) D.C. Code section 22-2704--abducting, enticing, or harboring a 
child for prostitution;
    (22) D.C. Code section 22-2705--pandering; inducing or compelling an 
individual to engage in prostitution;

[[Page 702]]

    (23) D.C. Code section 22-2706--compelling an individual to live 
life of prostitution against his or her will;
    (24) D.C. Code section 22-2708--causing spouse to live in 
prostitution;
    (25) D.C. Code section 22-2709--detaining an individual in 
disorderly house for debt there contracted;
    (26) D.C. Code section 22-2801 [repealed May 23, 1995]--forcible 
rape, carnal knowledge or statutory rape;
    (27) D.C. Code section 22-2901--robbery;
    (28) D.C. Code section 22-2902--attempted robbery;
    (29) D.C. Code section 22-2903--carjacking;
    (30) D.C. Code section 22-3501(a) [repealed May 23, 1995]--indecent 
acts with children;
    (31) D.C. Code section 22-3501(b) [repealed May 23, 1995]--enticing 
a child;
    (32) D.C. Code section 22-3502(a) [repealed May 23, 1995]--sodomy 
where the offense was forcible or committed against a minor;
    (33) D.C. Code section 22-4102--first degree sexual abuse;
    (34) D.C. Code section 22-4103--second degree sexual abuse;
    (35) D.C. Code section 22-4104--third degree sexual abuse;
    (36) D.C. Code section 22-4105--fourth degree sexual abuse;
    (37) D.C. Code section 22-4106--misdemeanor sexual abuse;
    (38) D.C. Code section 22-4108--first degree child sexual abuse;
    (39) D.C. Code section 22-4109--second degree child sexual abuse;
    (40) D.C. Code section 22-4110--enticing a child;
    (41) D.C. Code section 22-4113--first degree sexual abuse of a ward;
    (42) D.C. Code section 22-4114--second degree sexual abuse of a 
ward;
    (43) D.C. Code section 22-4115--first degree sexual abuse of a 
patient or client;
    (44) D.C. Code section 22-4116--second degree sexual abuse of a 
patient or client;
    (45) D.C. Code section 22-4118--attempts to commit sexual offenses;
    (46) Attempt or conspiracy to commit any of the offenses listed in 
items (1) through (45) of this table.

       Table 3. Offense Listing (D.C. Official Code, 2001 Edition)

    (1) D.C. Code section 22-301--arson;
    (2) D.C. Code section 22-302--burning of one's own property with 
intent to defraud or injure another;
    (3) D.C. Code section 22-303--malicious burning, destruction, or 
injury of another's property;
    (4) D.C. Code section 22-401--assault with intent to kill, rob, or 
poison, or to commit first degree sexual abuse, second degree sexual 
abuse or child sexual abuse;
    (5) D.C. Code section 22-402--assault with intent to commit mayhem 
or with dangerous weapon;
    (6) D.C. Code section 22-404.01--aggravated assault;
    (7) D.C. Code section 22-405(b)--assault on member of police force, 
campus or university special police, or fire department using a deadly 
or dangerous weapon;
    (8) D.C. Code section 22-406--mayhem or maliciously disfiguring;
    (9) D.C. Code section 22-801--burglary;
    (10) D.C. Code section 22-1101--cruelty to children;
    (11) D.C. Code section 22-1312(b)--lewd, indecent, or obscene acts 
(knowingly in the presence of a child under the age of 16 years);
    (12) D.C. Code section 22-1901--incest;
    (13) D.C. Code section 22-2001--kidnapping;
    (14) D.C. Code section 22-2101--murder in the first degree;
    (15) D.C. Code section 22-2102--murder in the first degree--
obstructing railroad;
    (16) D.C. Code section 22-2103--murder in the second degree;
    (17) D.C. Code section 22-2105--voluntary manslaughter only;
    (18) D.C. Code section 22-2106--murder of a law enforcement officer;
    (19) D.C. Code section 22-2201--certain obscene activities involving 
minors;
    (20) D.C. Code section 22-2704--abducting, enticing, or harboring a 
child for prostitution;
    (21) D.C. Code section 22-2705--pandering; inducing or compelling an 
individual to engage in prostitution;
    (22) D.C. Code section 22-2706--compelling an individual to live 
life of prostitution against his or her will;
    (23) D.C. Code section 22-2708--causing spouse to live in 
prostitution;
    (24) D.C. Code section 22-2709--detaining an individual in 
disorderly house for debt there contracted;
    (25) D.C. Code section 22-2801--robbery;
    (26) D.C. Code section 22-2802--attempted robbery;
    (27) D.C. Code section 22-2803--carjacking;
    (28) D.C. Code section 22-3002--first degree sexual abuse;
    (29) D.C. Code section 22-3003--second degree sexual abuse;
    (30) D.C. Code section 22-3004--third degree sexual abuse;
    (31) D.C. Code section 22-3005--fourth degree sexual abuse;
    (32) D.C. Code section 22-3006--misdemeanor sexual abuse;
    (33) D.C. Code section 22-3008--first degree child sexual abuse;
    (34) D.C. Code section 22-3009--second degree child sexual abuse;
    (35) D.C. Code section 22-3010--enticing a child;
    (36) D.C. Code section 22-3013--first degree sexual abuse of a ward;

[[Page 703]]

    (37) D.C. Code section 22-3014--second degree sexual abuse of a 
ward;
    (38) D.C. Code section 22-3015--first degree sexual abuse of a 
patient or client;
    (39) D.C. Code section 22-3016--second degree sexual abuse of a 
patient or client;
    (40) D.C. Code section 22-3018--attempts to commit sexual offenses;
    (41) D.C. Code section 22-3102--sexual performances using minors;
    (42) D.C. Code section 22-3801(a) [repealed May 23, 1995]--indecent 
acts with children;
    (43) D.C. Code section 22-3801(b) [repealed May 23, 1995]--enticing 
a child;
    (44) D.C. Code section 22-3802(a) [repealed May 23, 1995]--sodomy 
where the offense was forcible or committed against a minor;
    (45) D.C. Code section 22-4801 [repealed May 23, 1995]--forcible 
rape, carnal knowledge or statutory rape;
    (46) D.C. Code section 22-1803 or section 22-1805a--attempt or 
conspiracy to commit any of the offenses listed in items (1) through 
(45) of this table.

[67 FR 54100, Aug. 21, 2002, as amended at 68 FR 19742, Apr. 22, 2003]

[[Page 705]]



    CHAPTER IX--NATIONAL CRIME PREVENTION AND PRIVACY COMPACT COUNCIL




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Part                                                                Page
901             Fingerprint submission requirements.........         707

[[Page 707]]



PART 901--FINGERPRINT SUBMISSION REQUIREMENTS--Table of Contents




Sec.
901.1  Purpose and authority.
901.2  Interpretation of fingerprint submission requirements.
901.3  Approval of delayed fingerprint submission request.

    Authority: 42 U.S.C. 14616.

    Source: 66 FR 27863, May 21, 2001, unless otherwise noted.



Sec. 901.1  Purpose and authority.

    The Compact Council is established pursuant to the National Crime 
Prevention and Privacy Compact (Compact), Title 42, U.S.C., Chapter 140, 
Subchapter II, Section 14616. The purpose of these provisions is to 
interpret the Compact, as it applies to the required submission of 
fingerprints, along with requests for Interstate Identification Index 
(III) records, by agencies authorized to access and receive criminal 
history records under Public Law 92-544, and to establish protocols and 
procedures applicable to the III and its use for noncriminal justice 
purposes.



Sec. 901.2  Interpretation of fingerprint submission requirements.

    (a) Article V of the Compact requires the submission of fingerprints 
or other approved forms of positive identification with requests for 
criminal history record checks for noncriminal justice purposes. The 
Compact Council finds that the requirement for the submission of 
fingerprints may be satisfied in two ways:
    (1) The fingerprints should be submitted contemporaneously with the 
request for criminal history information, or
    (2) For purposes approved by the Compact Council, a delayed 
submission of fingerprints may be permissible under exigent 
circumstances.
    (b) The Compact Council further finds that a preliminary III name 
based check may be made pending the receipt of the delayed submission of 
the fingerprints. The state repository may authorize terminal access to 
authorized agencies designated by the state, to enable them to conduct 
such checks. Such access must be made pursuant to the security policy 
set forth by the state's Control Terminal Agency.



Sec. 901.3  Approval of delayed fingerprint submission request.

    (a) A State may, based upon exigent circumstances, apply for delayed 
submission of fingerprints supporting requests for III records by 
agencies authorized to access and receive criminal history records under 
Public Law 92-544. Such applications must be sent to the Compact Council 
Chairman and include information sufficient to fully describe the 
emergency nature of the situation in which delayed submission authority 
is being sought, the risk to health and safety of the individuals 
involved, and the reasons why the submission of fingerprints 
contemporaneously with the search request is not feasible.
    (b) In evaluating requests for delayed submissions, the Compact 
Council must utilize the following criteria:
    (1) The risk to health and safety; and
    (2) The emergency nature of the request.

Upon approval of the application by the Compact Council, the authorized 
agency may conduct a III name check pending submission of the 
fingerprints. The fingerprints must be submitted within the time frame 
specified by the Compact Council.
    (c) Once a specific proposal has been approved by the Compact 
Council, another state may apply for delayed fingerprint submission 
consistent with the approved proposal, provided that the state has a 
related Public Law 92-544 approved state statute, by submitting the 
application to the FBI's Compact Officer.

[[Page 709]]



        CHAPTER XI--DEPARTMENT OF JUSTICE AND DEPARTMENT OF STATE




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Part                                                                Page
1100            Trafficking in persons......................         711

[[Page 711]]



PART 1100--TRAFFICKING IN PERSONS--Table of Contents




Subpart A [Reserved]

      Subpart B--Victims of Severe Forms of Trafficking in Persons

Sec.
1100.25  Definitions.
1100.27  Purpose and scope.
1100.29  The roles and responsibilities of federal law enforcement, 
          immigration, and Department of State officials under the 
          Trafficking Victims Protection Act (TVPA).
1100.31  Procedures for protecting and providing services to victims of 
          severe forms of trafficking in persons in federal custody.
1100.33  Access to information and translation services for victims of 
          severe forms of trafficking in persons.
1100.35  Authority to permit continued presence in the United States for 
          victims of severe forms of trafficking in persons.
1100.37  Requirements to train appropriate personnel in identifying and 
          protecting victims of severe forms of trafficking in persons.

    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1104, 1252; 22 
U.S.C. 7101, 7105; 42 U.S.C. 10606 and 10607; and section 107(c) of 
Public Law 106-386 (114 Stat. 1464, 1477).

    Source: 66 FR 38518, July 24, 2001, unless otherwise noted.

Subpart A [Reserved]



      Subpart B--Victims of Severe Forms of Trafficking in Persons



Sec. 1100.25  Definitions.

    In this subpart, the following definitions apply:
    Admission and Admitted mean, with respect to an alien, the lawful 
entry of the alien into the United States after inspection and 
authorization by an immigration officer (8 U.S.C. 1101).
    Alien means any person not a citizen or national of the United 
States (8 U.S.C. 1101).
    Attorney General Guidelines means the Attorney General Guidelines 
for Victim and Witness Assistance 2000, which contain a policy guidance 
on how to treat crime victims and witnesses; these guidelines are 
available through the Internet on the Department of Justice's website.
    Coercion means threats of serious harm to or physical restraint 
against any person; or any scheme, plan, or pattern intended to cause a 
person to believe that failure to perform an act would result in serious 
harm to or physical restraint against any person; or the abuse or 
threatened abuse of law or the legal process (22 U.S.C. 7102).
    Commercial sex act means any sex act on account of which anything of 
value is given to or received by any person (22 U.S.C. 7102).
    Debt bondage means the status or condition of a debtor arising from 
a pledge by the debtor of his or her personal services or of those of a 
person under his or her control as a security for debt, if the value of 
those services as reasonably assessed is not applied toward the 
liquidation of the debt or the length and nature of those services are 
not respectively limited and defined (22 U.S.C. 7102).
    Family members of victims of severe forms of trafficking in persons 
means spouses, children, parents, or siblings whom traffickers have 
targeted or are likely to target and for whom protections from harm may 
reasonably be provided. At the discretion of the responsible official, 
this classification may be extended to include other family members. 
This definition is only applicable to the protections from harm referred 
to in this subpart.
    Federal custody means that statutory detention and custodial 
authority exercised by personnel of federal agencies, bureaus, boards, 
divisions, programs, and offices.
    Federal victims' rights legislation means the following statutes, as 
amended: the Victim and Witness Protection Act of 1982 (VWPA), Public 
Law 97-291, 96 Stat. 1248; the Victims of Crime Act of 1984, Public Law 
98-473, 98 Stat. 2170; the Victims Rights and Restitution Act of 1990, 
Public Law 101-647, 104 Stat. 4820; the Violent Crime Control and Law 
Enforcement Act of 1994, Public Law 103-322, 108 Stat. 1796; the 
Antiterrorism and Effective Death Penalty Act of 1996, Public Law 104-
132, 110 Stat. 1214; the Victim Rights Clarification Act of 1997, Public 
Law 105-6, 111 Stat. 12; and the Victims of Trafficking and Violence 
Protection Act of

[[Page 712]]

2000 (VTVPA), Public Law 106-386, 114 Stat. 1464.
    INA means the Immigration and Nationality Act, 8 U.S.C. 1101 et seq.
    Involuntary servitude includes a condition of servitude induced by 
means of any scheme, plan, or pattern intended to cause a person to 
believe that, if the person did not enter into or continue in such 
condition, that person or another person would suffer serious harm or 
physical restraint; or the abuse or threatened abuse of the legal 
process (22 U.S.C. 7102).
    Responsible official refers to the agency official designated to 
provide the services described in 42 U.S.C. 10607(a).
    Section 107(c) means section 107(c) of TVPA, Division A of Public 
Law 106-386.
    Services to victims refer to those services to be provided pursuant 
to 42 U.S.C. 10607(c), unless otherwise specified in the TVPA or this 
subpart.
    Severe forms of trafficking in persons means sex trafficking in 
which a commercial sex act is induced by force, fraud, or coercion, or 
in which the person induced to perform such act has not attained 18 
years of age; or the recruitment, harboring, transportation, provision, 
or obtaining of a person for labor or services, through the use of 
force, fraud, or coercion for the purpose of subjection to involuntary 
servitude, peonage, debt bondage, or slavery (22 U.S.C. 7102).
    Sex trafficking means the recruitment, harboring, transportation, 
provision, or obtaining of a person for the purpose of a commercial sex 
act (22 U.S.C. 7102).
    TVPA means the Trafficking Victims Protection Act of 2000, Public 
Law 106-386, Division A, October 28, 2000, 114 Stat. 1464, as amended, 
22 U.S.C. 7105, et seq.
    United States means the fifty States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana 
Islands, and the territories and possessions of the United States (22 
U.S.C. 7102).
    Victims' rights refer to crime victims' rights under 42 U.S.C. 
10606(b), as well as in other federal victims' rights legislation.



Sec. 1100.27  Purpose and scope.

    (a) Under section 107(c) of the TVPA, both the Department of Justice 
(DOJ) and the Department of State (DOS) have been directed to promulgate 
regulations to implement the following:
    (1) Procedures for appropriate federal employees to ensure, to the 
extent practicable, that victims of severe forms of trafficking in 
persons are housed in a manner appropriate to their status as crime 
victims, afforded proper medical care and other assistance, and 
protected while in federal custody, in accordance with their status as 
victims of severe forms of trafficking in persons;
    (2) Procedures to provide victims of severe forms of trafficking in 
persons with access to information about their rights and with 
translation services;
    (3) Procedures for federal law enforcement officials to request that 
certain victims of severe forms of trafficking in persons, who are 
aliens and are also potential witnesses, be permitted to remain in the 
United States to effectuate the prosecution of those responsible, and 
procedures to protect their safety, including taking measures to protect 
victims of severe forms of trafficking in persons and their family 
members from intimidation, threats of reprisals, and reprisals from 
traffickers and their associates (these procedures should be appropriate 
to their status as victims of severe forms of trafficking in persons); 
and
    (4) Training of appropriate DOJ and DOS personnel in identifying 
victims of severe forms of trafficking in persons, in understanding the 
particular needs common to victims of severe forms of trafficking in 
persons, and in providing for the protection of such victims.
    (b) The regulations in this subpart apply to all federal law 
enforcement personnel, immigration officials and DOS officials, insofar 
as their duties involve investigating or prosecuting traffickers in 
persons, or may involve identifying, encountering or detaining victims 
of severe forms of trafficking in persons.
    (c) The rights and protections made available to victims of severe 
forms of trafficking in persons under section

[[Page 713]]

107(c) supplement those rights and protections provided to victims and 
witnesses in federal victims' rights legislation as defined in this 
subpart. The intent of this subpart is to ensure that the protections 
available under the provisions of federal victims' rights legislation as 
well as the TVPA are fully provided to victims of severe forms of 
trafficking in persons, in keeping with their status as victims of 
severe forms of trafficking in persons. This subpart will ensure that 
these victims are identified as early as possible in the investigation 
and prosecution process, so that services and protections available to 
them under the laws of the United States are provided.
    (d) The regulations under this subpart set forth the general 
procedures to ensure these rights are protected in cases involving 
victims of severe forms of trafficking in persons. All agencies, 
bureaus, boards, divisions, programs, and offices in the DOJ and the DOS 
with specific responsibilities under this subpart shall adopt such 
regulations and/or operating procedures as may be necessary to ensure 
compliance with section 107(c) and the requirements of this subpart.



Sec. 1100.29  The roles and responsibilities of federal law enforcement, immigration, and Department of State officials under the Trafficking Victims Protection 
          Act (TVPA).

    (a) Department of Justice officials. The various agencies, bureaus, 
boards, divisions, programs, and offices of the DOJ have most of the 
responsibilities assigned by section 107(c). The goals of section 107(c) 
are to identify victims of severe forms of trafficking in persons as 
early as possible in the investigation and prosecution process, to 
ensure efforts are made to see that such victims are accorded the rights 
described in 42 U.S.C. 10606, and to provide the protections and 
services required under 42 U.S.C. 10607 and under the TVPA.
    (b) Department of State officials. Department of State missions 
throughout the world are often the initial contact for aliens in foreign 
countries who wish to come to the United States. Appropriate DOS 
personnel should be trained in identifying victims of severe forms of 
trafficking in persons. Furthermore, considering the international 
nature of trafficking in persons, appropriate DOS personnel, upon 
encountering victims of severe forms of trafficking in persons in 
foreign countries, should consider referrals to local law enforcement or 
service providers in the host country, but only if the local host 
country conditions support such actions.
    (c) Federal law enforcement officials. Federal law enforcement 
officials who, during the performance of their duties, encounter a 
person whom they believe may be a victim of a severe form of trafficking 
in persons as defined by this subpart, are responsible for bringing such 
an individual to the attention of those federal law enforcement 
officials primarily responsible for enforcing trafficking laws, 
specifically INS or FBI. In addition, DOS's Diplomatic Security Service 
has investigative authority in visa and passport fraud cases that may 
involve trafficking in persons. Federal law enforcement officials also 
include federal law enforcement personnel working cooperatively with law 
enforcement officials who have primary investigative jurisdiction in 
such trafficking cases. Each federal agency having law enforcement 
responsibilities should ensure that its officers are trained in 
identifying victims of severe forms of trafficking in persons, and are 
familiar with the rights, services, and protections such victims are to 
be accorded under the TVPA and 42 U.S.C. 10606 and 10607.



Sec. 1100.31  Procedures for protecting and providing services to victims of severe forms of trafficking in persons in federal custody.

    (a) While in federal custody, all victims of severe forms of 
trafficking in persons must be provided, to the extent practicable, the 
protections and services outlined in this section in accordance with 
their status as victims of severe forms of trafficking in persons. Under 
42 U.S.C. 10607(a), each agency must designate officials who are 
responsible for identifying victims of crime and providing services to 
them. The designations appear in the Attorney General Guidelines. This 
responsibility also extends to those who are responsible for victims of 
severe forms of trafficking in persons while they are in federal 
custody.

[[Page 714]]

    (b) To the extent practicable and allowed by law, alternatives to 
formal detention of victims of severe forms of trafficking in persons 
should be considered in every case. However, if detention is required, 
victims of severe forms of trafficking in persons in federal custody, to 
the extent practicable, shall not be detained in facilities 
inappropriate to their status as crime victims. The responsible official 
shall make all efforts, where appropriate and practicable, to house 
those victims separately from those areas in which criminals are 
detained. The responsible official must also provide protections and 
security to those victims as required by federal standards, policies, 
and procedures. Information on the federal prohibitions against 
intimidation and harassment, and the remedies available for such actions 
should routinely be made available to victims.
    (c) Victims of severe forms of trafficking in persons in federal 
custody shall receive necessary medical care and other assistance. This 
care should include free optional testing for HIV and other sexually 
transmitted diseases in cases involving sexual assault or trafficking 
into the sex industry, as well as a counseling session by a medically-
trained professional on the accuracy of such tests and the risk of 
transmission of sexually transmitted diseases to the victim. Other forms 
of mental health counseling or social services also may be appropriate 
to address the trauma associated with trafficking in persons.
    (d) As mandated by 42 U.S.C. 10607, federal officials are 
responsible for arranging for victims to receive reasonable protection 
from a suspected offender and persons acting in concert with or at the 
behest of the suspected offender. Federal law enforcement agencies also 
should protect victims of a severe form of trafficking in persons from 
harm and intimidation pursuant to section 6 of the Victim and Witness 
Protection Act of 1982 and 18 U.S.C. 1512 note. It may also be 
appropriate to discuss with the victims the available remedies described 
in 18 U.S.C. 1512 and 1513. Federal officials also should employ civil 
procedures for protecting victims and witnesses, including application 
for temporary restraining orders and protective orders, as set out in 18 
U.S.C. 1514, if practicable. If the victim's safety is at risk or if 
there is danger of the victim's recapture by the trafficker, the 
responsible official should take the following steps under the TVPA:
    (1) Use available practical and legal measures to protect the 
trafficked victim and family members from intimidation, harm, and 
threats of harm; and
    (2) Ensure that the names and identifying information pertaining to 
trafficked victims and family members are not disclosed to the public.



Sec. 1100.33  Access to information and translation services for victims of severe forms of trafficking in persons.

    (a) All federal investigative, prosecutorial, and correctional 
agencies engaged in the detection, investigation, or prosecution of 
crime shall use their best efforts to see that victims of severe forms 
of trafficking in persons are accorded all rights under federal victims' 
rights legislation. In cases involving severe forms of trafficking in 
persons, federal officials should provide victims within the United 
States, as defined by this subpart, information about their rights and 
applicable services, including:
    (1) Pro bono and low-cost legal services, including immigration 
services;
    (2) Federal and state benefits and services (victims who are minors 
and adult victims who are certified by the United States Department of 
Health and Human Services (HHS) are eligible for assistance that is 
administered or funded by federal agencies to the same extent as 
refugees; others may be eligible for certain, more limited, benefits);
    (3) Victim service organizations, including domestic violence and 
rape crisis centers;
    (4) Protections available, especially against threats and 
intimidation, and the remedies available as appropriate for the 
particular individual's circumstances;
    (5) Rights of individual privacy and confidentiality issues;
    (6) Victim compensation and assistance programs;

[[Page 715]]

    (7) Immigration benefits or programs that may be relevant to victims 
of severe forms of trafficking in persons, including those available 
under the VTVPA;
    (8) The right to restitution;
    (9) The right to notification of case status; and
    (10) The availability of medical services.
    (b) The federal agencies as defined in paragraph (a) of this section 
must ensure reasonable access to translation services and/or oral 
interpreter services in the event the victim is not able to communicate 
in English.



Sec. 1100.35  Authority to permit continued presence in the United States for victims of severe forms of trafficking in persons.

    (a) Federal law enforcement officials who encounter alien victims of 
severe forms of trafficking in persons who are potential witnesses to 
that trafficking may request that the Immigration and Naturalization 
Service (INS) grant the continued presence of such aliens in the United 
States. All law enforcement requests for continued presence must be 
submitted to the INS, Headquarters Office of Field Operations, in 
accordance with INS procedures. Each federal law enforcement agency will 
designate a headquarters office to administer submissions and coordinate 
with the INS on all requests for continued presence. The designated 
headquarters office will be responsible for meeting all reporting 
requirements contained in INS procedures for the processing and 
administering of the requests for continued presence in the United 
States of eligible aliens.
    (b) Upon receiving a request, the INS will determine the victim's 
immigration status. When applicable and appropriate, the INS may then 
use a variety of statutory and administrative mechanisms to ensure the 
alien's continued presence in the United States. The specific mechanism 
used will depend on the alien's current status under the immigration 
laws and other relevant facts. These mechanisms may include parole, 
voluntary departure, stay of final order, section 107(c)(3)-based 
deferred action, or any other authorized form of continued presence, 
including applicable nonimmigrant visas.
    (1) The alien's continued presence in the United States under this 
subpart does not convey any immigration status or benefit apart from 
that already encompassed by the particular form of authorized continued 
presence granted. In most circumstances, victims granted continued 
presence will be eligible for temporary employment authorization.
    (2) The continued presence granted through any of the mechanisms 
described in this paragraph (b) will contain the terms normally 
associated with the particular type of authorized continued presence 
granted, including, but not limited to, duration of benefit, terms and 
procedures for receiving an extension, travel limitations, and 
employment authorization unless expressly waived in an individual 
approval. Aliens granted deferred action based upon section 107(c)(3) 
are considered to be present in the United States pursuant to a period 
of stay authorized by the Attorney General for purposes of INA sections 
212(a)(9)(B)(I) and (C).
    (c)(1) In cases where it is determined that the granting to an alien 
of continued presence in the United States poses a threat to national 
security or to the safety and welfare of the public, the INS may require 
the requesting agency to meet special conditions or requirements prior 
to approval. The INS will promptly convey any such condition or 
requirement to the requesting agency in writing. Upon agreement by the 
requesting agency to comply with the conditions and accept the costs 
associated with the implementation of those conditions, the INS will 
grant the continued presence of the alien in the United States.
    (2) Although the INS and the requesting law enforcement agency will 
make every effort to reach a satisfactory agreement for the granting of 
continued presence, the INS may deny a request for continued presence in 
the following instances:
    (i) Failure, on the part of the requesting agency, to provide 
necessary documentation or to adhere to established INS procedures;
    (ii) Refusal to agree or comply with conditions or requirements 
instituted

[[Page 716]]

in accordance with paragraph (c)(1) of this section;
    (iii) Failure, on the part of the requesting agency, to comply with 
past supervision or reporting requirements established as a condition of 
continued presence; or
    (iv) When the INS determines that granting continued presence for 
the particular alien would create a significant risk to national 
security or public safety and that the risk cannot be eliminated or 
acceptably minimized by the establishment of agreeable conditions.
    (3) In the case of a denial, the INS shall promptly notify the 
designated office within the requesting agency. The INS and the 
requesting agency will take all available steps to reach an acceptable 
resolution. In the event such resolution is not possible, the INS shall 
promptly forward the matter to the Deputy Attorney General, or his 
designee, for resolution.
    (d) In addition to meeting any conditions placed upon the granting 
of continued presence in accordance with paragraph (c) of this section, 
the responsible official at the law enforcement agency requesting the 
victim's continued presence in the United States as described in 
paragraph (a) of this section shall arrange for reasonable protection to 
any alien allowed to remain in the United States by the INS. This 
protection shall be in accordance with 42 U.S.C. 10606 and shall include 
taking measures to protect trafficked persons and their family members 
from intimidation, threats of reprisals, and reprisals from traffickers 
and their associates in accordance with section 107(c)(3). Such 
protection shall take into account their status as victims of severe 
forms of trafficking in persons.



Sec. 1100.37  Requirements to train appropriate personnel in identifying and protecting victims of severe forms of trafficking in persons.

    (a) The TVPA requires that appropriate DOJ and DOS personnel be 
trained in identifying victims of severe forms of trafficking in persons 
and providing for the protection of such victims. These federal 
personnel will be trained to recognize victims and provide services and 
protections, as appropriate, in accordance with the TVPA, 42 U.S.C. 
10606 and 10607, and other applicable victim-assistance laws. 
Specifically, the training will include, as applicable:
    (1) Procedures and techniques for identifying victims of severe 
forms of trafficking in persons;
    (2) Rights of crime victims, including confidentiality requirements;
    (3) Description of the services available to victims of severe forms 
of trafficking in persons at the investigation, prosecution, and, where 
applicable, correction stages of the law enforcement process;
    (4) Referral services to be provided to victims of severe forms of 
trafficking in persons;
    (5) Benefits and services available to alien victims of severe forms 
of trafficking in persons regardless of their immigration status;
    (6) Particular needs of victims of severe forms of trafficking in 
persons;
    (7) Procedures and techniques for dealing with specialized needs of 
victims who may face cultural, language, and/or other obstacles that 
impede their ability to request and obtain available services for 
themselves; and
    (8) Protection obligations of responsible officials under federal 
law and policies, as these apply to victims of severe forms of 
trafficking in persons.
    (b) Each component of the DOJ and the DOS with program 
responsibility for victim witness services must provide initial training 
in the particular needs of victims of severe forms of trafficking in 
persons, and appropriate federal agencies' responses to such victims; 
initial training of appropriate agency personnel should be conducted as 
soon as possible. Thereafter, training must be held on a recurring basis 
to ensure that victims of severe forms of trafficking in persons receive 
the rights, protections, and services accorded them under the TVPA and 
federal victims' rights laws, and the federal policies, procedures, and 
guidelines implementing the TVPA and other federal victims' rights laws.

[[Page 717]]



                              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 719]]

            Material Approved for Incorporation by Reference

                      (Revised as of July 1, 2003)

  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 (PARTS 43 TO END)

DEPARTMENT OF JUSTICE
                                                                  28 CFR


District of Columbia Office of Documents and Administrative Issuances

  441 Fourth Street NW, Room 520S, Washington DC, 
  20001
DC Municipal Regulations, Title 6A, Chapter 4: Sex                 811.1
  Offender Regulations, December 22, 2000.



[[Page 721]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2003)

                      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)

                   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)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      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)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)

[[Page 722]]

    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)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     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--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture

[[Page 723]]

         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       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)
       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)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      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 the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)

[[Page 724]]

    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)
     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  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--599)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1400)

                 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, 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)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

[[Page 725]]

                      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)
      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  Department of the Treasury (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)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    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)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 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)

[[Page 726]]

        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 Industry and Security, 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)
            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)

[[Page 727]]

        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)
        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 (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (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)
       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)

[[Page 728]]

        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)

                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)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         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, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)

[[Page 729]]

       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 (Parts 1000--1199)
       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--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--299)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       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)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)

[[Page 730]]

        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            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  Employee Benefits Security 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)

                      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)
       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)

[[Page 731]]

        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)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      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)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       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)

               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)

[[Page 732]]

        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)
        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)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States 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)

[[Page 733]]

           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)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          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 Service, 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)
       102  Federal Management Regulation (Parts 102-1--102-299)
       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
       300  General (Parts 300-1--300.99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)

[[Page 734]]

       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, 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, Department of 
                Homeland Security (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)

[[Page 735]]

        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         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  Corporation for National and Community Service (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)
     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)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Transportation (Parts 400--499)
        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)

[[Page 736]]

         7  United States 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)
        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  Broadcasting Board of Governors (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 (Parts 
                5400--5499)
        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)

[[Page 737]]

                       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 Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        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)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Transportation (Parts 1500--1599)

                   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
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 739]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2003)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  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
  Food and Nutrition 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
  Procurement and Property Management, Office of  7, XXXII
  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
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 740]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
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
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
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
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  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, United States      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
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 741]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  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 Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
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
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
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
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  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                5, III, LXXVII; 14, VI; 
                                                  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

[[Page 742]]

  Trade Representative, Office of the United      15, XX
       States
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
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
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
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
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 Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
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
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 Nutrition 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
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 743]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  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
  Temporary Duty (TDY) 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
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  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
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Federal Emergency Management Agency             44, I
  Immigration and Naturalization                  8, I
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
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  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
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
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; 42, I
Industry and Security, Bureau of                  15, VII
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
Interior Department

[[Page 744]]

  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
  National Indian Gaming Commission               25, III
  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, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
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, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  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
  Employee Benefits Security Administration       29, XXV
  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
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of 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

[[Page 745]]

Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  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
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
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 and Community Service, Corporation for   45, XII, XXV
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 Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
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 Imagery and Mapping Agency               32, I
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, VI
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 Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
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

[[Page 746]]

Oklahoma City National Memorial Trust             36, XV
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, United States        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 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
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
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; 28, XI
  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 Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L

[[Page 747]]

  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  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
  Federal Motor Carrier Safety Administration     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 Security Administration          49, XII
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  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
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the 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 749]]



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, 
2001, 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, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

28 CFR
                                                                   66 FR
                                                                    Page
Chapter I
104  Added; interim................................................66282
Chapter V
500.1  (c) revised; interim........................................55065
501.2  (c) revised; (e) added; interim.............................55065
501.3  (c) revised; (d) redesignated as (e); new (d) and (f) 
        added; interim.............................................55065
Chapter VIII
Chapter  VIII Established...........................................1261
810  Added; interim................................................48337
Chapter IX
Chapter  IX Established............................................27862
Chapter XI
Chapter  XI Established; interim...................................38518

                                  2002

28 CFR
                                                                   67 FR
                                                                    Page
Chapter I
65.40  Revised......................................................7270
65.80  Amended.....................................................48359
65.83  Introductory text revised; (d) added........................48360
65.84  Heading and (a) revised.....................................48360
65.85  (e) revised.................................................48361
79  Authority citation revised.....................................51423
79.1--79.5 (Subpart A)  Revised;...................................51423
79.10--79.16 (Subpart B)  Revised;.................................51423
79.20--79.27 (Subpart C)  Revised;.................................51423
79.30--79.36 (Subpart D)  Revised;.................................51423
79.40--79.47 (Subpart E)  Removed;.................................51423
79.50--79.55 (Subpart F)  Removed;.................................51423
79.70--79.75 (Subpart H)  Added;...................................51423
97  Added..........................................................78699
104.2  (c)(1) revised..............................................11245
104.3  (a) and (b) revised.........................................11245
104.6  Revised.....................................................11245
104.21  (d) revised................................................11245
104.33  (c) and (g) revised........................................11246
104.43  (a) amended................................................11246
104.44  Amended....................................................11246
104.47  (a) and (b)(2) revised; (b)(3) added.......................11246
104.52  Amended....................................................11246
104.61  (a) amended................................................11246
105 Added..........................................................41145
Chapter V
523.30--523.34 (Subpart D)  Added; interim.........................48386
540  Authority citation revised.............................77164, 77427
540.71  (a) revised................................................77164
540.72  (b)(1) amended.............................................77427
541  Authority citation revised....................................77428
541.13  Table 3 amended; interim...................................77428
542  Authority citation revised....................................50805
542.10  Revised....................................................50805
542.12  Removed....................................................50805

[[Page 750]]

Chapter VIII
801  Added.........................................................57948
811  Added; interim................................................54095
812  Added; interim................................................54100

                                  2003

   (Regulations published from January 1, 2003, through July 1, 2003)

28 CFR
                                                                   68 FR
                                                                    Page
Chapter I
50  Authority citation revised.....................................18120
50.24  Added; interim..............................................18120
65.84  (a)(4) added; interim........................................8822
71.2  (e) and (f) redesignated as (f) and (g); new (e) added........4929
77.2  (a) amended...................................................4929
105  Revised........................................................7318
200  Transferred and redesignated from 8 CFR, Part 507..............9846
Chapter V
501  Authority citation revised....................................18545
501.1  Revised; interim............................................18545
522  Authority citation revised.....................................5564
522.40-522.42 (Subpart E)  Removed; interim.........................5564
540  Authority citation revised....................................10658
540.44  Introductory text and (c) revised..........................10658
540.45  Revised....................................................10658
540.46  Revised....................................................10658
540.47  Revised....................................................10658
540.48  Removed....................................................10658
540.51  (c) through (g) redesignated as (d) through (h); new (c) 
        added......................................................10658
551.60 (Subpart F)  Regulation at 58 FR 5210 confirmed.............19150
571  Authority citation revised....................................34300
571.21  (e) revised; eff. 7-9-03...................................34300
571.22  (c) revised; interim........................................3430
Chapter VIII
802  Added; eff. date 7-3-03.......................................32986
810  Regulation at 66 FR 48337 confirmed...........................19739
811  Regulation at 67 FR 54095 confirmed...........................19740
812  Regulation at 67 FR 54100 confirmed...........................19742
812.4  (b)(3) amended..............................................19742
812  Appendix A amended............................................19742


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